Following the cancellation of its Feb. 20 meeting, the School Ethics Commission held a special meeting Feb. 27 and discussed three ethics complaints pursuant to its previous regulations, and four ethics complaints pursuant to its new/amended regulations; adopted seven decisions in connection with previously discussed ethics complaints; considered a new advisory opinion request (A04-24); reconsidered a previously issued advisory opinion (A02-24); and also considered making six advisory opinions public (A15-23, A16-23, A01-24, A02-24, A03-24, and A04-24).

Of the seven decisions adopted by the SEC, five were posted on the SEC’s website; therefore, the remaining two matters (C10-23 and C45-23) remain pending. In addition, none of the six advisory opinions that the SEC considered making public have been posted on the SEC’s website. This is either attributable to the fact that 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 (six).

This article is limited to a discussion of those matters for which a violation(s) of the School Ethics Act was found.

Violations of the School Ethics Act

In C36-19, the named respondent served as the chief of staff to the late Lt. Gov. Sheila Oliver and previously served as her campaign manager and as her legislative aide. The respondent had known the lieutenant governor for “approximately 20 years through various civic, community and political activities.” At a board meeting Dec. 11, 2018, the respondent, along with other board members, voted in favor of two resolutions related to the renaming of a school building in honor of the lieutenant governor. Based on the respondent’s votes in favor of each resolution, and given her personal and professional relationship with the lieutenant governor, the complainant alleged that the respondent violated multiple provisions of the School Ethics Act.

The SEC adopted the administrative law judge’s conclusion that the respondent violated N.J.S.A. 18A:12-24(c) and N.J.S.A. 18A:12-24.1(f). In finding a violation of N.J.S.A. 18A:12-24(c), the SEC stated: “Respondent’s employment relationship with the Lieutenant Governor, through working as her Chief of Staff, in and of itself, demonstrates that Respondent had a personal involvement in the matter”; moreover, “given the totality of their professional relationship, Respondent’s two votes to facilitate the naming of a school in honor of the Lieutenant Governor created a benefit to Respondent, even indirectly by receiving the approval and/or gratitude of her supervisor, causing her supervisor to look on her favorably”; and “Respondent had an indirect personal interest in the outcome of the vote, as it benefited the Lieutenant Governor, who she has worked with over a period of years and for whom she served as Chief of Staff, a top position in her office.”

Regarding the violation of N.J.S.A. 18A:12-24.1(f), the SEC advised: “Respondent used the schools to acquire both a personal benefit, as well as a benefit to a friend, the Lieutenant Governor”; “in voting for two [r]esolutions to facilitate the naming of a school building in honor of the Lieutenant Governor, Respondent used her position on the board to publicly honor her supervisor and secure an advantage for herself in the workplace”; “Respondent’s actions, in using her position as Board President to vote in favor of two [r]esolutions to facilitate the renaming of a building in honor of the Lieutenant Governor, was using the schools to acquire a benefit for a friend”; and “a supervisory and/or friendly relationship is sufficient to establish that the Lieutenant Governor was a ‘friend’ for purposes of finding a violation” of the School Ethics Act; and, despite the respondent’s suggestion to the contrary, a finding of a violation is not predicated on a determination that the respondent and the lieutenant governor were “close” friends.

The SEC also adopted the administrative law judge’s recommended penalty of censure. In recommending a censure, the SEC stated that the respondent’s reliance on board counsel’s advice was not a defense to violations of the School Ethics Act but could mitigate the penalty; “the political association, in addition to the supervisory relationship between the Lieutenant Governor and Respondent, presented a clear conflict of interest and a serious violation of the public trust”; “board members should be aware that they cannot vote on matters in which they have a conflict of interest, and the conflict of interest in this matter is obvious”; it is “unclear why board counsel would opine that such a relationship does not warrant disqualification on voting, but the [SEC] nevertheless note[d] that Respondent, as Board President is obligated to recognize her own conflicts and recuse herself when a conflict exists.”

Based on In re Famularo, “where the severity of political cronyism balanced with the mitigating factors still resulted in a penalty of censure,” the SEC determined that, “given the very serious nature of Respondent’s violations, as well as that Respondent was not only a board member, but had been elected into the leadership role of Board President, a penalty of censure [was] warranted.”

In C24-22, a child of the named respondent was “deemed liable for a Code of Conduct violation for an incident that occurred in [the d]istrict.” Although the superintendent denied the respondent’s request to have the code of conduct violation removed from her child’s student record, and similarly denied the respondent’s request to have the matter brought before the full board, the respondent communicated directly with the superintendent several times “seeking her direct intervention and a reversal of the finding” against her child. The respondent also sent an email regarding the issue to each board member, and did not indicate that she was doing so in her capacity as a parent, and not as a member of the board. Board counsel also received emails from the respondent about the situation, which is not “protocol” as such issues/concerns typically go through the administration in the first instance. Despite warnings from other members of the board, the respondent’s spouse proceeded to raise the subject of their child’s punishment at a public meeting and sought clarification on the board policy related to the subject.

Although an administrative law judge issued an initial decision finding that the respondent’s conduct violated N.J.S.A. 18A:12-24.1(b), N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(d), N.J.S.A. 18A:12-24.1(e), N.J.S.A. 18A:12-24.1(g), and N.J.S.A. 18A:12-24.1(i), the SEC only adopted violations of N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(d), and N.J.S.A. 18A:12-24.1(e). In finding violations of N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(d), and N.J.S.A. 18A:12-24.1(e), the SEC noted that “Respondent used her position as a board member to contact board counsel to further a personal agenda”; the respondent’s direct communication with the superintendent to seek “direct intervention and a reversal of the finding” against her child was a direct order to school personnel; by contacting individual members of the board, board counsel and the superintendent to lobby for a change to her child’s disciplinary record, the respondent became involved in the functions that are the responsibility of school personnel; and the respondent’s efforts, without clearly delineating the capacity in which she was acting, to persuade individual board members, board counsel and the superintendent to advocate for the reversal of her child’s code of conduct violation was action beyond the scope of her duties that had the potential to compromise the board. Based on these violations, the SEC recommended a penalty of reprimand.

Appeals

As of the date of this article, it was unknown whether exceptions to the penalty(ies) recommended by the SEC, appeals of the SEC’s findings of a violation(s), or both have been filed in connection with C36-19 and/or C24-22. Nonetheless, the commissioner of education must now affirm, modify or reject the SEC’s decision within the time period prescribed by law.

Next Weeks’ Article

In next week’s edition of School Board Notes, we will discuss those cases that were dismissed by the SEC at its special meeting Feb. 27.

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.