SEC Warns Personal Opinion Disclaimer May Not Be Enough to Avoid Ethics Charges

In an April 27, 2021 decision, the School Ethics Commission (SEC) voted to censure a school board member for writing an opinion article that endorsed some school board candidates but specifically called for the defeat of another. Finding an increase in the number of complaints received related to statements made on social media, the SEC drafted a substantive decision warning board members that a disclaimer of personal opinion in a public statement does not necessarily cure all ethics violations within the statement. On October 30, 2018, the author of the opinion piece endorsed four school board candidates but spoke negatively about another, questioning her qualifications for the board.  In that writing, the member wrote a disclaimer saying: “The author is writing this endorsement on his own personal behalf.  His opinions are his own.” An administrative law judge who reviewed the case found that the disclaimer written by the member “was insufficient to convey that he was expressing his personal opinion.” Additionally, the judge held that the board member admitted he did not seek approval from the board or its counsel before writing the article, and the author admitted that the endorsements were meant to influence the voters. The judge held that a reprimand was appropriate based on case law and the fact that the board member had no previous history of ethics violations. However, the SEC disagreed and elevated the penalty to censure based on the severity of the violation. Ultimately, the board member who wrote the article resigned his board position and argued that his resignation should mitigate or reduce the penalty. The SEC disagreed and held that “[t]o the extent resignation affords a school official the ability to avoid the imposition of a harsher penalty, the force and effect of the Act becomes diminished.” The matter will now proceed before New Jersey’s Acting Commissioner of Education who will review the penalty. The NJSBA will provide further developments on this case as appropriate. More information about this case can be found at this link. Questions about this case should be discussed with your board attorney or the NJSBA’s Department of Legal, Labor Relations and Policy at (609) 278-5254.