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 “probable cause” or “PC review” decisions adopted by the SEC in connection with C80-23, C87-23, and C88-23.
Probable Cause Review Decisions
At its special meeting June 17, 2024, the SEC adopted three “PC review” decisions, or “probable cause review” decisions. As set forth in the SEC’s amended regulation, “Probable cause shall be found when the facts and circumstances presented in the complaint and written statement would lead a reasonable person to believe that the [School Ethics Act] has been violated.” N.J.A.C. 6A:28-9.7(a).
In C80-23, and before rendering a determination regarding probable cause, the SEC preliminarily analyzed whether the allegations in the three-count complaint were timely filed. Because the conduct at issue in Counts 1-3 occurred at either public community meetings, board meetings, or at an open house, and because the complainant failed to allege that she learned of those events on a date other than when they occurred, the SEC dismissed all claims except for an alleged violation of N.J.S.A. 18A:12-24(d) in Count 1, and an alleged violation of N.J.S.A. 18A:12-24(b) in Count 2.
Regarding the claimed violation of N.J.S.A. 18A:12-24(d) in Count 1, and the contention that the named respondent violated the act because the complainant did not receive responsive records to an Open Public Records Act request, except supporting documents that the named respondent held a meeting and spent money up until April 2023 for an all-girls academy, the SEC found that the complaint failed to allege any action by the named respondent, and equally failed to allege that the named respondent held any other employment or service outside of her position as superintendent. Absent these facts, the SEC held that the named respondent did not engage in any employment or service that could prejudice her independence of judgment in the exercise of her duties as superintendent.
As for the purported violation of N.J.S.A. 18A:12-24(b) in Count 2, and the suggestion that the named respondent violated the act because she has “shown poor judgment in decision making as a trustee and has benefited by having a scholarship in her name at the school where her children attend,” the SEC found that the complaint did not assert that the respondent had any part in creating the scholarship, or in choosing the recipient, and/or how the respondent or a member of her family would have benefitted from the scholarship.
In light of the fact that the alleged violations of N.J.S.A. 18A:12-24(d) in Count 1 and N.J.S.A. 18A:12-24(b) in Count 2 were not supported by probable cause, and all other claims were untimely filed, the SEC dismissed the complaint.
In C87-23, the SEC found that probable cause did not exist for a complaint alleging that seven members of the board violated N.J.S.A. 18A:12-24.1(a) and N.J.S.A. 18A:12-24.1(b) when they failed to respond to the complainants’ request for home instruction to be provided for their child. According to the SEC, the complainants failed to provide a decision from a court of law or administrative agency finding that the named respondents violated any law or regulation when they failed to respond, or that they failed to comply with a court order or directive authorizing home instruction for the complainants’ child. In addition, the named respondents did not violate N.J.S.A. 18A:12-24.1(b) because the decision to grant or deny the request for home instruction was appropriately, and timely, rendered by the administration. Had any of the respondents made a decision in connection with the complainants’ request, they could have potentially run afoul of a different provision of the School Ethics Act. Without probable cause for the allegations in the complaint, the SEC dismissed the matter.
In C88-23, the SEC determined that an 11-count complaint also lacked probable cause. Of the 11-counts filed, seven counts concerned posts or comments made by the named respondent on his social media page. As in C22-22, the SEC detailed the framework that it applies when analyzing whether social media activity may violate the act, and then noted that the social media page at-issue is “Respondent’s personal page and is not a campaign or board member page.” Even though the respondent’s profile referenced his board membership in the “About” section, it did not, according to the SEC, “outwardly display his board status.” As a result, the SEC indicated it would “evaluate the content of each post in order to determine if there is a nexus between the post and Respondent’s role as a [b]oard member, and whether a reasonable person would perceive the speech as being offered in an official capacity and pursuant to his official duties.” In this way, and because the SEC did not find that the respondent’s social media page/account was an “official” board account, it reviewed each individual post to determine whether there was a sufficient nexus to the respondent’s board membership/service.
Of the seven counts concerning the respondent’s social media page, the SEC concluded that the posts/comments at-issue in Counts 1-2, Counts 5-6, Count 9, and Count 11 lacked a sufficient nexus to the respondent’s membership or role on the board and, therefore, a reasonable member of the public would not perceive that he was speaking in his official capacity. However, the post referenced in Count 10 (“I look forward to continuing to work with you to reduce the bloated BOE budget as we help the 50% of our students who are failing the NJ State standardized tests to pass them”) did have a nexus to his board membership and, therefore, “a reasonable member of the public may perceive that he was speaking in his official capacity.” Nonetheless, because the substance of the statement was not a decision, was not contrary to the educational welfare of children and did not have the potential to compromise the board, the SEC found that there were insufficient facts and circumstances to support a finding of probable cause.
The remaining counts of the complaint concerned the respondent’s statements or votes at public board meetings, none of which were supported by sufficient factual evidence or circumstances to support a finding of probable cause. The SEC also reiterated that no matter how unpopular its opinions may be, or if its opinions are contrary to those of the administration, board members are entitled to vote in accordance with their own beliefs.
In addition to determining that probable cause did not exist for the stated violations of the act, the SEC also denied the respondent’s request to find the complaint frivolous and to impose sanctions.
Read the previous article in School Board Notes, which examined some of the SEC’s other decisions at its June meeting.
The SEC’s Next Meeting
The SEC’s next regular meeting is currently scheduled for July 23, 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.