At its regularly scheduled meeting on July 23, 2024, the School Ethics Commission discussed nine ethics complaints pursuant to its new/amended regulations (C01-24; C07-24; C08-24; C09-24; C10-24; C11-24; C15-24; C16-24, C17-24, C28-24, C38-24, C43-24, and C44-24 (Consolidated); and C20-24); adopted three decisions concerning previously discussed ethics complaints (C96-21; C78-23; C91-23); adopted 12 decisions for those board of education members who failed to complete annual training by Dec. 31, 2023 (T01-24 through T04-24; T06-24; T08-24 through T13-24; and T16-24); and additionally considered making eight advisory opinions public (A01-24 through A07-24, and A09-24).
Of the three decisions adopted by the SEC, two were posted on the SEC’s website (C96-21 and C91-23); therefore, C78-23 is not yet fully resolved. Once again, 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” decision adopted in connection with C91-23, as well as the training decisions adopted by the SEC at its July 23 meeting.
If you missed it, please read this previous School Board Notes article highlighting some of the SEC’s other decisions at the meeting.
“PC Review” Decision
In addition to a final decision, the SEC also adopted one “PC review” decision, or probable cause review decision, at its July 23 meeting. In accordance with 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). The only “PC review” decisions posted on the SEC’s website are those that dismiss the entirety of a filed complaint.
In C91-23, the complainant detailed what she described as the “hate speech” that the named respondent posted on a community Facebook page regarding transgender students. More specifically, the complainant asserted that the named respondent posted an “inquiry” asking, “what law allows school staff to assist a minor in concealing a mental disorder from their legal guardians?”
When a member of the public posted a responsive comment (“‘a mental disorder??’ I am going to give you the benefit of the doubt and assume you are not referring to a student being trans or questioning his/her gender identity as a ‘mental disorder’ and maybe I misunderstood you!”), the respondent purportedly replied, “No, you misunderstood nothing. Gender Dysphoria is listed in DSM (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition).” The complainant contended that the respondent’s initial “inquiry” violated N.J.S.A. 18A:12-24.1(a), and that the respondent’s response to the member of the public violated N.J.S.A. 18A:12-24.1(b).
As an initial matter, and interestingly, the SEC did not specifically analyze whether the social media posts/comments were made in the respondent’s official capacity as a board member, or in his personal/private capacity as a citizen. However, because the SEC evaluated whether the facts and circumstances set forth in the complaint and written statement could form the basis for a violation of the School Ethics Act, it appears that the SEC determined, even if informally/unofficially, that the posts/comments were made or offered in the respondent’s official capacity as a board member.
Although seemingly offered in an official capacity, the SEC determined that probable cause did not exist for the alleged violation of N.J.S.A. 18A:12-24.1(a) in Count 1 because “Complainant failed to provide a copy of a final decision from any court of law or other administrative agency demonstrating or specifically finding that” he acted illegally, unlawfully, or unethically “when he engaged in any of the acts/conduct set forth in the Complaint.” Furthermore, probable cause did not exist for the claimed violation of N.J.S.A. 18A:12-24.1(b) in Count 2 because the respondent’s comments on Facebook and description of gender dysphoria as a mental disorder was not a “decision” or “action.”
Finally, and despite the respondent’s request, the SEC did not find that the complaint was frivolous and denied the respondent’s request for the imposition of sanctions.
Training Decisions
The SEC adopted 12 decisions for those board of education members who, in violation of N.J.S.A. 18A:12-33, failed to complete mandatory training by Dec. 31, 2023.
In two of the adopted decisions – T11-24 and T12-24 – the SEC recommended a penalty of censure; in eight of the adopted decisions – T02-24, T03-24, T04-24, T06-24, T08-24, T09-24, T13-24, and T16-24 – the SEC recommended removal, but which could be modified to a 30-day suspension if the subject board members complete training before the commissioner of education issues a final decision; in one of the adopted decisions – T01-24 – the SEC solely recommended a 30-day suspension because, even though the subject board member completed training after the issuance of the SEC’s Order to Show Cause, the named board member had previously been reprimanded for failing to complete training; and in the final adopted decision – T10-24 – the SEC recommended removal, but which could not be modified to any other penalty or sanction because the named board member had previously been reprimanded for failing to complete training, and separately was suspended for failing to timely file personal/relative and financial disclosure statements.
Amendments to the SEC’s regulations became effective on March 6, 2023, and enhanced penalties are now authorized for board of education members who fail to timely complete training. The SEC’s recommended penalties for the above training matters are consistent with the amendments set forth in N.J.A.C. 6A:28-4.3(b)-(d) and N.J.A.C. 6A:28-9.11.
SEC’s Next Meeting
The SEC’s next regular meeting is scheduled for Aug. 27, 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.