In lieu of its regularly scheduled meeting, which was previously scheduled for June 25, 2024, the School Ethics Commission held a special meeting June 17, 2024, and took the following action: discussed one ethics complaint pursuant to the SEC’s previous regulations (C96-21); discussed two ethics complaints pursuant to the SEC’s new/amended regulations (C78-23 and C91-23); adopted and mailed 17 orders to show cause for those board of education members who failed to timely complete annual training by Dec. 31, 2023; adopted eight decisions concerning previously discussed ethics complaints (C03-21; C22-22; C45-23; C76-23; C80-23; C85-23; C87-23; and C88-23); considered one new advisory opinion request (A10-24); and also considered making eight advisory opinions public (A01-24 through A07-24, and A09-24).

Of the eight decisions adopted by the SEC, six were posted on the SEC’s website (C03-21; C22-22; C45-23; C80-23; C87-23; and C88-23); therefore, C76-23 and C85-23 are not yet fully and finally resolved. As in the past several months, none of the eight advisory opinions that the SEC considered making public are posted on the SEC’s website, which is either because the SEC did not have the required number of members present to make the opinions public (six), or because the SEC did not have a sufficient number of affirmative votes to make the advisory opinions public (also six).

This article is limited to a discussion of the final decisions and the summary disposition decision adopted by the SEC in connection with C03-21, C22-22 and C45-23.

Final Decisions

After the SEC transmits a matter to the Office of Administrative Law, an administrative law judge adjudicates the remaining claims in the filed complaint. Following a hearing(s), or the filing of a dispositive motion(s), the administrative law judge issues an initial decision, which the SEC can then affirm, modify, or reject as to the findings of fact, legal conclusions and recommended penalty (if any).

The named respondent in C03-21 served as the president of the Monroe Township Middle School Parent Staff Association, and was an active member of the PSA “for several years” before he was elected to the board. The respondent also owns and operates Dot Designing, which made spirit wear for the PSA. Both before and after he joined the board, Dot Designing sold spirit wear to middle school students as a fundraiser for the PSA. To promote fundraising sales, the respondent sent advertisements to the middle school principal, using his business email address, and the school then “sent the information home with the students or emailed it to the parents on a regular basis.” A complaint was filed with the SEC alleging that the respondent violated several provisions of the School Ethics Act because, among other things, his company was transacting business in the district, and he was requesting that the middle school principal send out communications to district families.

Following a hearing at the Office of Administrative Law, and after certain claims were dismissed by the SEC, the administrative law judge found that the respondent did not violate N.J.S.A. 18A:12-24.1(f) in Count 1, and/or N.J.S.A. 18A:12-24(a), N.J.S.A. 18A:12-24(b), and/or N.J.S.A. 18A:12-24(c) in Count 2, and dismissed the complaint.

Although the SEC agreed that there was insufficient factual evidence to support a violation of N.J.S.A. 18A:12-24.1(f) in Count 1, and N.J.S.A. 18A:12-24(b) in Count 2, it disagreed with the conclusion that the respondent did not violate N.J.S.A. 18A:12-24(a) or N.J.S.A. 18A:12-24(c) in Count 2, and recommended a penalty of reprimand for those violations.

Regarding the violation of N.J.S.A. 18A:12-24(a), the SEC found, consistent with the advice provided in A03-21 and A04-21, that while the respondent’s ownership interest in his company does not, on its own, create a conflict for the respondent, “the transaction of selling his company’s merchandise on behalf of the PSA directly to students and parents, through his website and picked up at his company’s location, is in substantial conflict with the proper discharge of Respondent’s duties as a Board member, even if the merchandise is donated.”

The SEC found that the respondent’s conflict was “further compounded” by the fact that he used the middle school principal, whose employment he oversees as a board member, to send targeted emails soliciting sales from students and their families.” Additionally, because district families receive emails asking them to purchase spirit wear from the respondent’s company, “it may cause parents to feel pressured to make a purchase solely due to Respondent’s status as a board member, which would pit Respondent’s sale of spirit wear in conflict with his position on the board.”

As for the violation of N.J.S.A. 18A:12-24(c), the SEC found that “Respondent and the company that he owns and operates have an indirect financial involvement in the principal’s employment in the district because Respondent contacts the principal on a regular basis to request that the principal send emails to students and families to promote the sale of spirit wear.”  This kind of “regular communication” provides the respondent with an indirect financial benefit because “it is free advertising that garners name recognition and goodwill for his company.” Consequently, a “reasonable member of the public would perceive that the conflict created by Respondent’s contact with the principal to benefit his business, at least indirectly, would impair his objectivity and independence of judgment.”

Although the complainant in C22-22 filed an 11-count complaint alleging multiple violations of the School Ethics Act, all but three counts were dismissed following the filing of a motion to dismiss, or were withdrawn. In the remaining three counts of the complaint, the complainant asserted that the named respondent violated N.J.S.A. 18A:12-24(b) when: she endorsed certain candidates for the board on her social media account (Count 1); she changed her Facebook profile picture/icon to endorse certain candidates for the board (Count 3); and she authored an op-ed about the board (Count 4).

Following the filing of dispositive motions at the Office of Administrative Law, an administrative law judge found that the respondent violated N.J.S.A. 18A:12-24(b) in Count 1, but did not violate N.J.S.A. 18A:12-24(b) in Count 3 or Count 4. According to the administrative law judge, the post at-issue in Count 1 “more than mentioned Respondent’s board member status,” and she directly “responded to the question of who will help her on the board and urged voters to select her preferred candidates over the incumbent.” Therefore, “at a minimum, the post required a disclaimer because it “could be perceived by the public as a board endorsement.” Without a disclaimer, the respondent “provided an unwarranted privilege to the two candidates she endorsed in violation of N.J.S.A. 18A:12-24(b).” For the respondent’s violation of N.J.S.A. 18A:12-24(b), the administrative law judge recommended a penalty of reprimand.

After the matter was returned to the SEC, the SEC modified the administrative law judge’s determination to find that the respondent did not violate N.J.S.A. 18A:12-24(b) in Count 1, Count 3, and/or Count 4. In “modifying” the administrative law judge’s legal conclusion with regard to Count 1, and after reviewing the framework for its analysis and its precedent for social media cases, the SEC stated, “although the post implies that Respondent is a board member when she indicates that ‘people have been asking me who will help me on the school board,’ the post also used language indicating the post is Respondent’s opinion (‘I believe …,’ ‘I ask …,’ ‘I have honestly never seen a candidate …,’ ‘… I appreciate that’).”  As such, and “when viewing the entirety of the post, a reasonable member of the public would find it clear from the context and overall tone of the post, that Respondent is expressing her opinion of the candidates she supports, and is speaking in her individual capacity, and not on behalf of the board.” The SEC also noted that while her account/page had a general disclaimer that the views were her own, the post in question did not. Nonetheless, and because the post was not offered in her official capacity as a board member, the SEC determined that the respondent did not violate N.J.S.A. 18A:12-24(b) in Count 1.

The SEC also adopted the administrative law judge’s legal conclusions that the respondent did not violate N.J.S.A. 18A:12-24(b) in Count 3 and/or Count 4. Of interest, and regarding the op-ed at-issue in Count 4, the SEC distinguished the facts and circumstances in C22-22 from those in I/M/O Treston (C71-18). More specifically, and unlike in I/M/O Treston, the respondent here had a disclaimer that clearly indicated the views expressed did not represent the views of the board, and the article itself discussed concerns related to the entire board and did not attempt to influence voters. As such, a reasonable member of the public would not perceive that she was speaking in her official capacity as a board member.

Having “modified” the administrative law judge’s only finding of a violation of the act, the SEC dismissed C22-22.

Summary Disposition Decision

If the SEC finds probable cause for the allegations in an ethics complaint, it must advise the parties whether the matter will be retained for a hearing; determined on a “summary basis”; or transmitted to the Office of Administrative Law for a hearing as per N.J.A.C. 6A:28-9.8(a)(1)(i)-(iii).

Following what he regarded as “personal attacks” from the complainant at public board meetings, the named respondent in C45-23 contacted the building principal where the complainant works. During a conversation with the complainant’s workplace supervisor, the respondent identified himself as a board member; claimed that the complainant attacked him “with unfounded claims”; indicated he was “preparing” to sue the complainant; and expressed the belief that the complainant’s attacks were due to his opposition to gender neutral bathrooms. Based on this conduct, the complainant filed a complaint alleging that the respondent violated N.J.S.A. 18A:12-24.1(e) because he was trying to “silence” the complainant from “speaking out” at board meetings, and because he “identified himself as a school board member in a private matter for his own perceived personal gain.”

The named respondent never submitted a written response to the allegations in the ethics complaint, and never submitted a “Statement of Reasons” disputing the facts in the complaint and/or indicating why he should not be found in violation of the School Ethics Act or penalized for a violation(s); therefore, the SEC deemed the allegations in the complaint to be “undisputed,” and advised the parties that the matter would be decided by summary disposition.

Because the respondent called the complainant’s supervisor, represented himself as a member of the board, and complained about actions that the complainant took in her capacity as a private citizen at a public board meeting, the SEC determined that the respondent acted beyond the scope of his duties as a board member, and that his actions undermined the integrity of the board.

The SEC recommended a penalty of censure because, in its view, “Respondent deliberately used his position as a board member to intimidate Complainant because she had a different opinion on the issue of gender-neutral bathrooms,” and because she “spoke publicly at board meetings” in opposition to the respondent’s viewpoint. Per the SEC, the respondent “acted inappropriately by contacting a constituent’s supervisor regarding action taken in a personal capacity at a board meeting and which has no bearing on her employment.”

Upcoming Article

In a future edition of School Board Notes, we will discuss the three probable cause review decisions adopted by the SEC at its special meeting on June 17, 2024.

As a reminder, school officials who would like to request an advisory opinion regarding their own or another school official’s prospective conduct may do so through the SEC.

For further information about these matters, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.