Following the School Ethics Commission’s adoption of a final decision, either the complainant or the respondent can file exceptions to the sanction recommended by the SEC, appeal the SEC’s finding of a violation(s), or file both exceptions to the recommended sanction and an appeal of the finding of a violation(s). N.J.S.A. 18A:12-29(c).
Even if a party does not file exceptions or initiate an appeal, the commissioner of education “shall … act on the [SEC’s] recommendation regarding” any recommended sanction. In other words, whenever the SEC recommends a sanction for a violation of the School Ethics Act, the recommended sanction must be reviewed by the commissioner of education. It is only when challenged that the commissioner of education will also review the SEC’s determination as to a violation(s) of the School Ethics Act. In most instances, the commissioner of education’s decisions are posted the month after they are issued. In April 2024, the commissioner of education issued two decisions concerning the SEC.
In the first decision, which concerns C24-22, the commissioner of education concurred with the penalty recommended by the SEC – a reprimand – for the respondent’s actions in using her board position to attempt to reverse an adverse harassment, intimidation and bullying determination made by the board against her child. Of note, neither the named complainants nor the named respondent filed exceptions to the recommended penalty, nor instituted an appeal of the SEC’s determination that the respondent violated 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 second decision issued by the commissioner of education relates to C87-21. After the SEC determined that the named respondent violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24(c) because she was present in executive session while the board discussed her spouse’s potential appointment to a vacancy on the board, and recommended a penalty of censure for her violations, the respondent filed an appeal. After reviewing the record, the commissioner of education found that the SEC’s decision was supported by sufficient credible evidence, and that the respondent failed to establish that the decision was arbitrary, capricious, or unreasonable. In affirming the decision, the commissioner of education agreed with the commission that the respondent had an interest not shared with other members of the public, in that her husband’s candidacy for a board vacancy was being considered while she was still a board member herself. Moreover, her ability to access and be present in executive session while the candidates were being discussed was not extended to the other candidate’s spouse. Additionally, the respondent’s presence in executive session reasonably created a justifiable impression among the public that she was attempting to secure an unwarranted privilege or advantage for her husband by influencing the board’s deliberations, even if, ultimately, he was not chosen to fill the vacancy.
Finally, although the named respondent contended that she relied on the advice of counsel for her actions and argued that this defense should either “avoid or mitigate the imposition of a penalty,” the commissioner, like the commission, found this argument unpersuasive. In light of the fact that the respondent never sought legal advice about whether she could attend and be present in executive session, the commissioner found that she could not claim she relied on “legal advice.” As stated by the commissioner, the respondent “cannot successfully invoke the advice of counsel defense by claiming that no one advised her not to attend executive session when she never sought advice on that issue in the first place.” Therefore, the penalty of censure was affirmed.
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.