The agenda for the School Ethics Commission’s meeting Aug. 22, 2023, included the review of three ethics complaints pursuant to the SEC’s previous regulations; the adoption of seven decisions; and the removal of Advisory Opinion A01-01 from the SEC’s website. Of note, the agenda did not include the review of any ethics complaints pursuant to the SEC’s new regulations; the consideration of any new advisory opinion requests; or the adoption of any advisory opinions. Of the seven decisions to be adopted, three were posted on the SEC’s website. Therefore, the remaining four matters are not fully and finally resolved, and will continue to be processed by the SEC. As for the three decisions adopted:

Use of Campaign Social Media Accounts. In C19-22 and C20-22, two separate but related matters, the named respondents used their “personal” social media accounts to campaign for seats on the board and then, following their successful bid for election, continued to use the same social media accounts to post or share information, and did so without use of a disclaimer.  In C19-22, the respondent posted negative comments about the governor (and about masking in schools during the COVID-19 pandemic), and encouraged teachers to opt out of the New Jersey Education Association. The statements caused the board to adopt a resolution disavowing the statements and also led to the filing of an unfair practice charge against the board.

In C20-22, the respondent, in various posts over the span of several months:  encouraged “staff members of the local union to form new unions” and, as in C19-22, the comments led to the filing of an unfair practice charge. The comments “equated the treatment of unvaccinated individuals to the illegal discrimination experienced by Jewish people,” publicly opposed mandatory COVID-19 vaccines and masking, and “encouraged students to defy them” and expressed “disagreement with how gender identity is taught in the State.”

Despite an administrative law judge concluding that members of the public “could” view the comments/posts from the named respondents as those of the board – particularly because the social media accounts lacked a disclaimer, and were made on the same social media accounts that the named respondents had used to run for the board – and findings that the social media posts/comments had the potential to and/or did compromise the board in violation of N.J.S.A. 18A:12-24.1(e), the SEC saw things differently.

The SEC found that, although the subject matter of the social media posts related to the business of the board, there was an “insufficient nexus between [Respondents’] personal Facebook page and [their] membership on the Board, such that a reasonable member of the public would not perceive that [they were] speaking pursuant to [their] official duties.”  Even though the social media accounts were used by the named respondents in their respective board campaigns, and did not include a disclaimer, the SEC noted, “The posts … do not mention [Respondents’] membership on the Board nor [did they] advertise or rely upon [their] Board membership when publishing material on [their] social media page[s].” Consequently, the SEC rejected the findings of violations and dismissed both matters.

Nonetheless, the SEC did note that “board members should recognize and refrain from inappropriate communications that have no place in the educational setting,” and “how school officials conduct themselves outside the scope of their duties as school officials is best addressed at the time of election.”

Notwithstanding the SEC’s determination in C19-22 and C20-22, board members are reminded that, in C106-22, the SEC specifically advised: “…once elected to a seat on the Board, it is no longer prudent or appropriate to use one’s campaign page to post statements or comments on social media. Continued use of a campaign page following election can only, as here, cause confusion as to the capacity in which one is speaking, and this will invariably lead to the filing of ethics complaints. Transparency in communication cannot be overstated, and continued use of one’s campaign page unnecessarily obfuscates the public’s understanding of the capacity in which one is speaking on social media.”  Accordingly, board members should consult with their board attorneys to understand when continued use of a “personal” social media account, which was previously used to campaign for a seat on the board, could lead to a violation of the School Ethics Act.

Presence in Executive Session Despite a Conflict. In C09-20, the respondent, who was also the board president, was advised, prior to the start of executive session, that “a matter involving a family member” would be discussed.  The respondent purportedly discussed the matter with the superintendent, who discussed it with board counsel. The board counsel subsequently advised the superintendent, who then advised the respondent, that she could be present in executive session but could not vote on the matter. Based on this advice, the respondent was present in executive session on four different occasions when the matter involving her family member was discussed. During the second executive session discussion, the board decided to dismiss the matter due to insufficient evidence. However, before a formal decision was provided to the involved parties, the respondent’s spouse emailed the superintendent; indicated that he disagreed with the decision; and then sent in “new information” to be considered. At the third executive session discussion, district personnel attended the meeting to discuss/present the “new information” and, at that time, were aware “of the individual involved and the relationship to Respondent.” Although the respondent attended executive session on a fourth occasion, she was asked to leave and complied with the request. Ultimately, the administrative law judge concluded that the respondent violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24.1(e) as there was a “clear appearance of impropriety.” In terms of an appropriate penalty, because the respondent sought the advice of counsel and the other members of the board were not necessarily aware of the conflict, the administrative law judge recommended a penalty of reprimand.

Even though the SEC adopted the legal conclusion that, by remaining in executive session on multiple occasions while the board discussed a confidential matter involving an immediate family member, the respondent used her official position to secure an unwarranted advantage and privilege in violation of N.J.S.A. 18A:12-24(b), and 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), it modified the recommended penalty of reprimand to a censure. In the SEC’s view, the respondent’s reliance on board counsel was not a mitigating factor, as “Respondent should have known that she was not permitted to listen to confidential discussions about a matter in which she had a direct conflict.” Per the SEC, “It should be obvious to any Board member who has ever undergone ethics training that a matter involving an immediate family member is a conflict and Board members cannot be present for confidential discussions in those matters for which they have a conflict.” The SEC also noted that “the fact that the other Board members were not aware that the matter involved Respondent’s family member does not excuse Respondent’s behavior, nor is it a mitigating circumstance.”

Based on the SEC’s decision in C09-20, board members are reminded that if they have a conflict regarding a matter, they are required not only to abstain from voting on that matter but also from being present and/or participating in any discussions of the matter, in executive session or otherwise.

Removal of Advisory Opinion A01-01. Although the SEC has not explicitly stated why it is considering the removal of Advisory Opinion A01-01 from its website, it appears to be inconsistent, at least in part, with the advice recently issued in connection with Advisory Opinion A05-23. In Advisory Opinion A05-23, the SEC advised that because the board president had at least one immediate family member or relative employed in the district, the board president could not choose the members of, or the chairpersons for, any board committee involving or relating to their immediate family member or relative’s district employment, including the negotiations committee. To the extent that Advisory Opinion A01-01 advised that the board president, despite having an immediate family member employed in the district, could appoint the chairperson and the members of the negotiations committee, that advice has been superseded by Advisory Opinion A05-23.

Board members 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.