School Ethics Commission Adopts and Makes Public a New Advisory Opinion

At its regularly scheduled meeting Nov. 28, 2023, the School Ethics Commission took action as follows:  discussed one ethics complaint pursuant to the SEC’s previous regulations; reviewed three ethics complaints pursuant to the SEC’s new/amended regulations; issued orders to show cause for those board of education members who failed to complete mandatory training by Dec. 31, 2022; adopted 10 decisions for previously discussed ethics complaints; adopted a decision for a holdover matter for a returning school official who did not to file their 2023 Personal/Relative and Financial Disclosure Statements by April 30, 2023; and adopted, and made public, a new advisory opinion.

Of the 10 decisions adopted by the SEC, only five were posted on the SEC’s website; therefore, the other five matters remain pending. This article is limited to a review of those matters in which the SEC found a violation of the School Ethics Act, and a review of the new public advisory opinion.

Violations Found: Ethics Complaints

Before she was a board member, the named respondent in C37-21 and her spouse executed a settlement agreement that required the board to reimburse them “for their child’s out-of-district placement.” The following year, the respondent was appointed to fill a vacancy on the board. Although the respondent timely filed her 2019 disclosure statements, she failed to disclose her receipt of tuition reimbursement from the board the previous calendar year.

Based on I/M/O Dunckley, Denville Board of Education, the administrative law judge  recommended dismissal of the complaint because “a ‘reasonable member of the public’ would not believe that their trust is being violated because a parent kept their child’s special education record confidential.” However, the SEC rejected the administrative law judge’s recommendation, found the judge’s reliance on Dunckley misplaced, and found that the respondent’s failure to disclose the tuition reimbursement violated N.J.S.A. 18A:12-25(c) and N.J.S.A. 18A:12-26. Although the respondent violated the School Ethics Act, the SEC recognized “the sensitive nature of the information at issue and Respondent’s well-intended motive to protect her child,” and declined to recommend a penalty.

In C87-21, the named respondent advised the board that she was resigning due to “family obligations.” As a result, the board held a special meeting (remotely) to interview candidates for the respondent’s anticipated vacant seat. Prior to the meeting, and because one of the candidates for the vacant seat was the respondent’s spouse, the board counsel advised the respondent that she could not vote on any of the candidates; however, the board counsel never advised the respondent that she could not attend the meeting. The respondent attended both the public and executive session portions of the special meeting but claimed she did not “listen” or “participate” in the executive session discussion because she was reviewing other materials sent to her from the board counsel.

As with C37-21, although the administrative law judge recommended dismissal of the ethics complaint, the SEC rejected the judge’s recommendation, and found that the respondent’s “mere presence” in executive session violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24(c). The SEC was also unpersuaded by the respondent’s purported reliance on advice from board counsel because it did not appear that she ever “asked for the advice of counsel regarding attendance in executive session,” and instead relied “on the absence of advice telling her not to attend executive session as an implicit approval to do so.” Based on these violations, and because “Respondent should have known that she was not permitted to attend executive session while a matter in which she had a direct conflict – one involving an immediate family member – was being discussed,” the SEC recommended a penalty of censure.

2023 Disclosure Statements

In addition, the SEC adopted a new decision in connection with a holdover matter (from its Oct. 17, 2023, meeting) regarding a school official who failed to file their 2023 disclosure statements by April 30, 2023. As with the decisions adopted at its meeting last month, and consistent with the amendments to its regulations, the SEC recommended an enhanced penalty of censure for the violations of N.J.S.A. 18A:12-25, N.J.S.A. 18A:12-26 and N.J.A.C. 6A:28-3.1.

New Public Advisory Opinion

In A14-23, a board member sought to determine whether they have a conflict of interest “in any [b]oard related matters” because their spouse is employed by the Department of Education in the Office of Grants Management.  Based on the facts and circumstances set forth, the SEC advised the board member that it would be a conflict “to participate in any discussions and/or votes related to any matters involving the Office of Grants Management, including but not limited to any applications that the [b]oard may submit for an entitlement or grant fund opportunity.”  The SEC also agreed with the board’s member decision to “abstain from voting on [b]oard business items, if any, in connection with the applications for or the receipt of any entitlement grants.” The SEC additionally advised the board member to continue abstaining on such matters for as long as their spouse continues to work in the Office of Grants Management.

Appeals

As of the date of this writing, it is unknown whether exceptions to the penalties recommended by the SEC, appeals of the SEC’s findings, or both have been filed in connection with C37-21, C87-21 and/or D01-23. Nonetheless, the commissioner of education will now affirm, modify or reject the SEC’s decisions within the time period prescribed by law.

On Nov. 20, 2023, the commissioner remanded C75-18 back to the SEC for further proceedings. In its decision adopted June 27, 2023, the commission found a violation of N.J.S.A. 18A:12-24(a), N.J.S.A. 18A:12-24(c) and N.J.S.A. 18A:12-24(c), and recommended a penalty of reprimand, for a board member who used their district email account to promote their personal business to district families; when, in their capacity as board president, they authorized a flyer to be posted on the board’s website that advertised and endorsed the board member’s personal business; when, following communications/a request from the board member, various parent-teacher organizations then posted information regarding events to be hosted by the board member’s personal business; and when they, in attempting to resolve a complaint from a community member, used their district email account to solicit a meeting with the community member during a time when the board member would be working with students and families as part of his personal business. In reviewing the SEC’s decision, the commissioner advised that, “… [i]t would be unjust to hold [the Respondent] responsible for his attorney’s failures by affirming the decision the [SEC] made on a summary basis,” particularly because the respondent intended to contest the facts alleged in the complaint” and “the record has not been fully developed ….” As a result, C75-18 remains ongoing.

In next week’s article, we will review those matters dismissed by the SEC at its Nov. 28, 2023, meeting.

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.