Decisions Adopted by the School Ethics Commission on Sept.  24, 2024:  Part I

At its regularly scheduled meeting on Sept. 24, 2024, the School Ethics Commission took the following action: discussed three ethics complaints pursuant to the SEC’s previous regulations (C49-21; C92-21; and C32-22); discussed six matters pursuant to the SEC’s new/amended regulations (C78-23; C12-24; C13-24; C18-24; C19-24; and C23-24); adopted six decisions concerning previously discussed ethics matters (C07-20; C03-24; C04-24 and C05-24 (Consolidated); C06-24; C07-24; and C14-24); considered three new advisory opinion requests (A11-24; A12-24; and A13-24); and also considered making eleven advisory opinions public (A01-24 through A07-24; A09-24; and A11-24 through A13-24).

All six decisions adopted by the SEC were posted on the SEC’s website, and are publicly available. However, none of the eleven advisory opinions that the SEC considered making public have yet been posted on the SEC’s website.

Initial Decision

In C07-20, a former board member asserted that the board president violated N.J.S.A. 18A:12-24.1(a) and, along with the business administrator/board secretary, violated N.J.S.A. 18A:12-24(c) because they purposely “kept secret the news of (complainant’s resignation) in order to prevent an election from occurring for the unexpired term of” his (the complainant’s) then vacant seat on the board. By keeping this information a “secret” from the board, and not certifying the vacancy to the clerk, so it could be on the ballot for the next election, the complainant contended that the named respondents tried to orchestrate and control whom would fill the vacant seat on the board, thereby depriving the general electorate from deciding on the candidate of its choice.

Following a hearing, an administrative law judge issued an initial decision finding that neither respondent violated the act. Concerning the alleged violation of N.J.S.A. 18A:12-24(c), the administrative law judge determined that the board president “did not ‘decide whether (the complainant’s) vacant board seat should be disclosed to the (county) Clerk and/or placed on the (November 2019) ballot.’” Although the BA/BS “decided whether (the complainant’s) vacant board seat should be disclosed to the County Clerk,” that decision did not “create some benefit to (her), including control over the individual who would be appointed to fill the vacancy.”

As for the stated violation of N.J.S.A. 18A:12-24.1(a), a “final decision from a court of law” was not provided regarding any illegal or unethical misconduct by the board president in connection with the decision not to place the vacancy on the ballot.

Because neither the violation of N.J.S.A. 18A:12-24.1(a) by the board president nor the violations of N.J.S.A. 18A:12-24(c) by the board president and the BA/BS could be substantiated, the administrative law judge dismissed the matter.

The SEC adopted the administrative law judge’s findings of fact, and the legal conclusions that neither respondent violated the act. Although it agreed with the administrative law judge that the matter should be dismissed, the SEC warned, “… the parties should be reminded that the purpose of being a school official involves students and their education, and when school officials focus on power and control of the board, they lose sight of the children that they have a duty to support.”

Even though the facts at issue in C07-20 did not result in a violation(s) of the Act, it is noteworthy that the BA/BS’s failure to notify the county clerk about the vacant seat was challenged in Superior Court. Not only did the judge find that the BA/BS “should have disclosed the letter of resignation to the board,” the judge also found that “ … the vacancy should be filled by an election and not by … appointment (by) the board.” In other words, the judge found that the BA/BS’s failure to notify the county clerk about the vacancy on the board was contrary to legal requirements. Although not unethical within the meaning of the act, her actions were clearly unlawful.

“PC Review” Decisions

The SEC additionally adopted five “PC review” decisions, or probable cause review decisions, at its meeting on Sept. 24, 2024. In accordance with the SEC’s amended regulations, “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). The only probable cause review decisions posted on the SEC’s website are those that dismiss the entirety of a filed complaint. This article is limited to a discussion of the decisions adopted by the SEC in connection with C04-24 and C05-24 (Consolidated) and C06-24. 

In C04-24 and C05-24 (Consolidated), the complainant argued that the named respondent, the board president, violated N.J.S.A. 18A:12-24.1(a), N.J.S.A. 18A:12-24.1(c), and N.J.S.A. 18A:12-24.1(e) because he failed to put the name of the individual that the board “unanimously” selected to fill a board vacancy on the agenda and, thereby, “denied him” the oath of office.  During a board meeting, the respondent indicated that the reason the chosen individual was not sworn in was because, following a review of publicly available advisory opinions from the SEC, there was a belief that the person had an impermissible conflict of interest that precluded them from serving on the board while also continuing in their current employment.

Regarding the stated violation of N.J.S.A. 18A:12-24.1(a), despite being required by the corresponding regulation (N.J.A.C. 6A:28-6.4(a)(1)), the SEC noted that the complainant did not provide a “final decision from (a) court of law or other administrative agency” finding that the respondent engaged in any illegal or unethical misconduct.

As for the alleged violation of N.J.S.A. 18A:12-24.1(c), the SEC found that  “ … it is within Respondent’s prerogative as Board President to determine which matters should appear on an agenda, and any disagreement on that topic is a matter of board governance,” and his failure “to place the chosen individual on the agenda was due to concerns regarding his ability to serve as a board member … .”

Concerning the claimed violation of N.J.S.A. 18A:12-24.1(e), the SEC determined that,  “Respondent’s alleged failure to place” the chosen individual on the agenda “was not beyond the scope of his duties.” Instead, not only was it within his role as board president, but the complainant did not demonstrate how the respondent’s conduct had the potential to compromise the board.

In the absence of probable cause, the SEC dismissed the complaint. The SEC also declined to find that the complaint was frivolous and to impose sanctions.

The matter docketed as C06-24 is based on the same set of facts as those in C04-24 and C05-24 (Consolidated). However, unlike in C04-24 and C05-24 (Consolidated), the named respondent in C06-24 was not the board president, and the complainant asserted that the respondent’s vote in opposition to a motion to amend the agenda to add the swearing in of the chosen candidate to the agenda violated N.J.S.A. 18A:12-24.1(a) and N.J.S.A. 18A:12-24.1(c).

As in C04-24 and C05-24 (Consolidated), the SEC did not find probable cause for the violation of N.J.S.A. 18A:12-24.1(a) because the complainant did not provide a final decision from any court of law or other administrative agency demonstrating or specifically finding that the respondent acted illegally or unethically, and also did not find probable cause for the violation of N.J.S.A. 18A:12-24.1(c) because her vote against the motion to amend the agenda did not constitute “action to effectuate policies and plans without consulting those affected” or action unrelated to her duties and responsibilities as a board. In this regard, the SEC noted that “it (was) within Respondent’s prerogative to vote against amending a meeting agenda, including one regarding swearing in a board member who may not be eligible to serve.”

The SEC additionally denied the respondent’s request to find the complaint frivolous and to impose sanctions.

Next Week’s Article

In next week’s article, the remaining probable cause review decisions adopted by the SEC at its meeting on Sept. 24, 2024 – C03-24, C07-24, and C14-24 – will be discussed.

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.