Commissioner of Education Reviews School Ethics Commission Decisions

After the School Ethics Commission adopts a final decision, either party 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 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 penalty or sanction for a violation, it must be reviewed by the commissioner of education, even if it is not being challenged or appealed by a named party. Generally speaking, the commissioner of education’s decisions are posted the month after they are issued.

In January 2024, the commissioner of education released a dozen decisions concerning SEC matters. Among others, the Commissioner of Education concurred with the SEC’s recommended penalty of censure in D01-23 (adopted on Oct. 17, 2023), which involved  the named respondent’s failure to timely file personal/relative and financial disclosure statements by April 30, 2023; concurred with the SEC’s decision in C37-21 not to impose a penalty for the respondent’s violation of N.J.S.A. 18A:12-25(c) and N.J.S.A. 18A:12-26 because of the sensitive nature of the information withheld and the respondent’s “well-intended motive to protect her child”; and per a directive from the Appellate Division of the Superior Court, vacated the penalty of reprimand issued in connection with C28-20, but not the finding that the named respondents violated the School Ethics Act.

The commissioner of education also issued several decisions concerning the SEC’s 2023 training decisions. More specifically, the commissioner of education concurred with the SEC’s recommended penalty of removal in T03-23, T04-23, T06-23, T13-23 and T22-23; concurred with the SEC’s recommended penalty of a 60-day suspension in T07-23; concurred with the SEC’s recommended penalty of a 30-day suspension in T19-23 and T20-23; and concurred with the SEC’s recommended penalty of censure in T21-23. Of note, the penalties recommended by the SEC for training violations are dependent upon whether the board member ever completed training; if completed, when it was completed; and whether the board member had ever been sanctioned by the SEC for the same or a similar conduct.

In February 2024, the commissioner of education released two decisions regarding the SEC, both of which were appealed by the named respondents. In its decision dated Aug. 22, 2023, the SEC found that by remaining in executive session on multiple occasions while the board discussed a confidential matter involving a member of the respondent’s immediate family, the named respondent in C09-20 used her official position to secure an unwarranted advantage and privilege in violation of N.J.S.A. 18A:12-24(b), and also engaged in conduct that had the potential to compromise the board, as well as the integrity of the “family matter,” in violation of N.J.S.A. 18A:12-24.1(e). Based on these violations, and despite the respondent’s argument that her reliance on board counsel’s advice was a mitigating favor, the SEC recommended a penalty of censure.

Following an appeal from the respondent regarding the violations and the recommended penalty, the commissioner of education found that the SEC’s determination was supported by sufficient credible evidence, and that the respondent failed to establish that it was arbitrary, capricious, or contrary to law. However, due to the respondent’s reliance on the advice of counsel, the commissioner of education modified the penalty to a reprimand. Because the respondent sought approval from the superintendent prior to attending executive session; the superintendent advised that she had spoken to counsel and that the respondent could attend executive session but not vote; the superintendent and the board attorney were aware that respondent’s family member was involved in the matter; and the respondent complied with the request to leave the fourth meeting when asked, the commissioner of education concluded that her reliance on the advice of counsel was a valid defense, and that a penalty of reprimand was warranted. In reprimanding the respondent, the commissioner of education affirmed the “seriousness” of the respondent’s actions and noted that they resulted in an informational advantage concerning the details of the matter being discussed, including the rationale behind the board’s decision, which was not afforded to any other participant in the matter.

Next, and in a decision adopted on Oct. 17, 2023, the SEC found that the named respondent in C98-21 violated N.J.S.A. 18A:12-24.1(e) and N.J.S.A. 18A:12-24.1(g) when he copied the substance of at least two different internal board e-mail communications, and sent the information to external stakeholders, and township officials specifically. Because he revealed the “inner communications” of the board at a time when certain information was not publicized and formal board action had not been taken, the SEC found that the respondent took action beyond the scope of his duties that had the potential to compromise the board, and that he disclosed confidential information. Citing the incident as a “one-time event,” the SEC recommended a penalty of reprimand.

On appeal, the commissioner of education found that the SEC’s decision was supported by sufficient credible evidence, and that the respondent failed to prove the decision was arbitrary, capricious, or contrary to law. The commissioner of education also agreed that a penalty of reprimand was appropriate and reasonable given that a similar penalty had been meted out in a case with comparable facts, and that this was a “one time,” albeit intentional, event.

In March 2024, the commissioner of education issued two decisions involving the SEC. In the first, following an appeal of the SEC’s Oct. 17, 2023, decision finding that the named respondent in D02-23 violated N.J.S.A. 18A:12-25, N.J.S.A. 18A:12-26, and N.J.A.C. 6A:28-3.1, the commissioner of education determined that the SEC’s decision was supported by sufficient credible evidence, and that the respondent failed to prove that it was arbitrary, capricious, or contrary to law. Additionally, the commissioner of education agreed that a penalty of censure was appropriate for the named respondent’s failure to timely file personal/relative and financial disclosure statements by April 30, 2023.

Finally, in its Jan. 23, 2024, decision in connection with C12-23, the SEC found that the named respondent violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24(c) when, while serving as the acting superintendent, she recommended the approval of a list of more than 150 substitute teachers for employment, and the list included her child.  In light of the fact that the respondent did not act “deliberately or intentionally, and she did not realize her [child’s] name was on the list of substitute teachers,” the SEC recommended a penalty of reprimand.

Upon review, the commissioner of education concurred with the penalty of reprimand given the respondent’s action in recommending her son for reappointment to the position of substitute teacher. Of note, the named respondent in C12-23 neither filed exceptions to the recommended penalty, nor instituted an appeal.

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.