67-23SEC•Maria Ricupero and Gerlando Termini v. Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, 3/9/2023, (67-23SEC)
Maria Ricupero and Gerlando Termini v. Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, 3/9/2023, (67-23SEC)
67-23SECNjcommned
Testo completo
67-23SEC New Jersey Commissioner of Education Final Decision Maria Ricupero and Gerlando Termini, Complainants, v. Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, Respondent. Synopsis Petitioners, citizens of Randolph, alleged that respondent, a member of the Randolph Board of Education, violated multiple sections of the School Ethics Act, N.J.S.A. 18A:12-24.1, through actions she took as the chief proponent of a plan to eliminate the Columbus Day holiday from the school district’s calendar – a result that generated great community outcry over the lack of public vetting of the plan prior to the Board taking action to eliminate the holiday. The School Ethics Commission (SEC) determined that the respondent violated N.J.S.A. 18A:12-24.1(e) of the Code of Ethics for School Board Members and recommended a penalty of reprimand. The case was forwarded to the Commissioner for final determination of the appropriate penalty in this matter. Upon review, the Commissioner concurred with the penalty recommendation of the SEC for respondent’s participation in a meeting with members of the public, which constituted action beyond the scope of her duties as a board member and had the potential to compromise the Board. Accordingly, the respondent was reprimanded as a school official found to have violated the School Ethics Act. This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commissioner.
SEC Dkt. No. C25-21 OAL Dkt. No. EEC 10170-21 Agency Dkt. No. 22-1/23 New Jersey Commissioner of Education Final Decision Maria Ricupero and Gerlando Termini, Complainants, v. Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, Respondent. The Commissioner has reviewed the record of this matter and the January 31, 2023 decision of the School Ethics Commission (Commission). The Commission found that respondent Jeanne Stifelman, a member of the Randolph Township Board of Education, violated N.J.S.A. 18A:12-24(e). The Commission recommended a penalty of reprimand for the violation. The Commission’s decision was forwarded to the Commissioner for final determination on the recommended penalty pursuant to N.J.S.A. 18A:12-29(c). Respondent neither filed exceptions to the recommended penalty nor instituted an appeal, pursuant to N.J.A.C. 6A:4-1 et seq., of the Commission’s underlying finding of violation. Upon review, the Commissioner concurs with the penalty recommended by the Commission for respondent’s participation in a May 31, 2021 meeting with members of the 67-23SEC
2 public, which constituted action beyond the scope of her duties as a Board member and had the potential to compromise the Board. Accordingly, respondent is hereby reprimanded as a school official found to have violated the School Ethics Act. IT IS SO ORDERED.1 ACTING COMMISSIONER OF EDUCATION Date of Decision: Date of Mailing: 1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date of mailing of this decision. March 9, 2023 March 10, 2023
Before the School Ethics Commission OAL Docket No.: EEC-10170-21 SEC Docket No.: C25-21 Final Decision Maria Ricupero and Gerlando Termini, Complainants v. Jeanne Stifelman, Randolph Township Board of Education, Morris County, Respondent I. Procedural History The above-captioned matter arises from a Complaint that was filed on July 16, 2021, by Maria Ricupero (Complainant Ricupero) and Gerlando Termini (Complainant Termini) (collectively referred to as Complainants), alleging that Jeanne Stifelman (Respondent), a member of the Randolph Township Board of Education (Board), violated the School Ethics Act (Act), N.J.S.A 18A:12-21 et seq. More specifically, the Complaint avers that Respondent violated N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12-24.1(c), N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12- 24.1(f), and N.J.S.A 18A:12-24(b) in Count 1, violated N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12- 24.1(c), N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(g), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 2, violated N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(f), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 3, and violated N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(f), and N.J.S.A 18A:12-24(b) in Count 4. On July 16, 2021, the Complaint was served on Respondent, via electronic mail, notifying her that ethics charges had been filed against her with the School Ethics Commission (Commission), and advising that she had twenty (20) days to file a responsive pleading. 1 On August 4, 2021, Respondent filed a Motion to Dismiss in Lieu of Answer (Motion to Dismiss), and also alleged that the Complaint is frivolous. On August 27, 2021, Complainants filed a response to the Motion to Dismiss and allegation of frivolous filing. Thereafter, and at its meeting on November 16, 2021, the Commission adopted a decision granting the Motion to Dismiss as to Count 1 (in its entirety); as to N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12-24.1(c), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 2; as to Count 3 (in its entirety); and as to N.J.S.A 18A:12-24.1(f), and N.J.S.A 18A:12-24(b) in Count 4, 1 In order to conduct business during the Coronavirus (COVID-19) pandemic, the Commission implemented an electronic filing system, which remains a permissible method by which the Commission and parties can effectuate service of process. Consequently, service of process was effectuated by the Commission through electronic transmission only
2 and denying the Motion to Dismiss as to all other allegations. The Commission also adopted a decision finding the Complaint not frivolous, and denying Respondent’s request for sanctions; directing Respondent to file an Answer to Complaint (Answer) as to the remaining allegations in the Complaint (N.J.S.A 18A:12-24.1(e) and N.J.S.A 18A:12-24.1(g) (Count 2) and N.J.S.A 18A:12-24.1(e) (Count 4)); and transmitting the above-captioned matter to the Office of Administrative Law (OAL) following receipt of the Answer. On December 8, 2021, Respondent filed an Answer as directed, and the above-captioned matter was transmitted to the OAL. At the OAL, the contested matter was assigned to the Honorable Andrew M. Baron, Administrative Law Judge (ALJ Baron). Initial Decision (Granting Summary Decision) at 1. Following the filing of Respondent’s Notice of Motion for Summary Decision, oral argument was held on June 28, 2022, with supplemental argument on October 11, 2022; thereafter, the record closed. Id. at 2. On November 22, 2022, ALJ Baron issued an Initial Decision (Granting Summary Decision) detailing his findings of fact and legal conclusions, and the Commission acknowledged receipt of same; therefore, the forty-five (45) day statutory period for the Commission to issue a Final Decision was January 6, 2023. Prior to January 6, 2023, the Commission requested a forty-five (45) day extension of time to issue its final decision so as to provide the Commission, which only meets monthly, with the opportunity to receive and review the full record. Pursuant to N.J.S.A. 52:14B-10(c) and N.J.A.C. 1:1-18.8, and for good cause shown, the Commission was granted an extension until February 21, 2023. At its regularly scheduled meeting on December 20, 2022, the Commission considered the full record in this matter. Subsequently, and at a special meeting on January 31, 2023, and for the reasons more fully detailed below, the Commission voted to adopt ALJ Baron’s findings of fact; adopt the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopt the legal conclusion that Respondent did not violate N.J.S.A. 18A:12- 24.1(e) as contended in Count 4; but to reject the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. Based on its finding of a violation, the Commission also voted to recommend a penalty of reprimand. II. Decision on Motion to Dismiss In its Decision on Motion to Dismiss, the Commission stated, in relevant part: The Commission, however, finds that if the facts [as] argued are proven true by sufficient credible evidence, they may support a finding that Respondent violated N.J.S.A. 18A:12-24.1(e) in Count 2 and Count 4. Although Respondent maintains that she provided “sufficient disclaimers that she was speaking as an individual” during the meeting on May 31, 2021 with Complainants and in connection with the alleged interview on June 13, 2021, the Commission has advised that despite the use of an otherwise appropriate disclaimer, the content of a message or communication could render any potential disclaimer meaningless. As such, if Complainant can demonstrate that
3 Respondent’s meeting with Complainants and alleged interview on June 13, 2021, constituted action beyond the scope of her duties as a Board member, and had the potential to compromise the Board (e.g., because she responded to or addressed a complaint or concern before it could be resolved by the administration), a violation may be found. Therefore, the Commission finds that the contended violations of N.J.S.A. 18A:12-24.1(e) in Count 2 and Count 4 should not be dismissed. Decision on Motion to Dismiss at 17. In addition, and regarding the stated violation of N.J.S.A. 18A:12-24.1(g) in Count 2, the Commission advised: After review of the pleadings, the Commission finds that if the facts as asserted are proven true by sufficient credible evidence, they may support a finding that Respondent violated N.J.S.A. 18A:12-24.1(g). If Complainants can prove by sufficient credible evidence that Respondent disclosed certain information to Complainants during the May 31, 2021 meeting, namely confidential information from the DISC/DEI committee meetings or any personally identifiable student information, and such information was “not public under any laws, regulations or court orders of this State,” or was “otherwise confidential in accordance with [B]oard policies, procedures or practices,” a violation of N.J.S.A. 18A:12-24.1(g) may be established. Further, if Complainants can demonstrate that Respondent’s sharing of data regarding the treatment of Columbus Day in other Morris County schools was indeed not miniscule as suggested by Respondents and establishes that the inaccuracy was other than a reasonable mistake or personal opinion, a violation of N.J.S.A. 18A:12-24.1(g) may also be established. Therefore, the Commission finds that the alleged violation of N.J.S.A. 18A:12-24.1(g) in Count 2 should not be dismissed. Decision on Motion to Dismiss at 18. III. Initial Decision (Granting Summary Decision) In the Initial Decision (Granting Summary Decision), ALJ Baron issued findings of fact, and noted that the “parties essentially agree upon” the facts, but “dispute the application and interpretation of the law in relation to the facts.” Initial Decision (Granting Summary Decision) at 2. In the “Factual Discussion” section of his Initial Decision (Granting Summary Decision), ALJ Baron initially noted that the genesis of the Complaint is certain actions taken by the Respondent in her capacity as a member of the Randolph Board of Education (Board). Id. More specifically, at its regularly scheduled meeting on May 13, 2021, Respondent and another Board member, Susan Devito, introduced a “walk-on” resolution to change the Randolph Township School District’s (District) observation of Columbus Day in October to “Indigenous People’s Day.” Id. at 3. For reasons unknown, Respondent brought the resolution on as a last minute
4 motion from the floor, which is somewhat unusual for a matter that would have such significant importance. As such, the resolution was not part of the original meeting agenda advertised to members of the community, which did not allow for a full-fledged debate and discussion prior to the vote. Id. Ultimately, a majority of the Board voted to remove Columbus Day from the District calendar. Id. Upon learning of the change to the District calendar, which was not “vetted” in the normal way such changes are usually introduced, there was a huge public outcry against what Respondent and a majority of the Board had done. Id. Thereafter, Complainant Ricupero and Complainant Termini felt compelled to exercise their rights as citizens to file an ethics complaint against Respondent Stifelman who was the leading proponent of the change. Id. However, prior to filing their Complaint with the Commission, Complainant Ricupero and Complainant Termini sought a meeting with Respondent Stifelman to address their concerns and listen to what Respondent had to say about the drastic change to the District calendar. Id. The meeting, which occurred on May 31, 2021, lasted almost two hours, and Respondent was not aware it was being recorded. During the meeting, Respondent attempted to justify her actions, but was unsuccessful in addressing Complainants’ concerns. Id. Complainants further contend that during the course of the meeting, Respondent also revealed “confidential information” from a local diversity committee on which she served as a member, but it is not disputed that the information she shared did not identify specific individuals or specific cases which were discussed by the committee. Id. at 3-4. However, Complainants strongly believe that none of this information should have been discussed even in general terms. Id. at 4. It is unclear why this unrelated subject came up during a meeting between the parties the primary purpose of which was to discuss the removal of Columbus Day from the District calendar. Id. In the approximately thirty (30) days that followed the initial vote to remove Columbus Day from the District calendar, there was a tremendous backlash throughout the community, many of whom are proud Italian-Americans, who rely on Columbus Day as a marker for their Italian heritage, not just a day off from work and school as some have suggested. Id. In a hastily arranged community forum sponsored by the Randolph Italian American One Voice Committee, several local, county and State elected officials, and about sixty (60) members of the community appeared to speak out against the removal of Columbus Day from the District calendar. Id. Although she was not invited to the forum, Respondent appeared and was seen speaking to members of the press and giving out information. Id. However, Ms. Stifelman was not a speaker, and did not use her title as a Board member to defend her actions. Id. Complainants strongly believe that by attending the forum, and being seen speaking to members of the press even though she was not quoted, Respondent had an affirmative obligation to identify herself as a Board member to anyone she was speaking with, and further believe that the anonymous quote which appeared in the newspaper following the forum could only be attributed to her. Id. Complainants further believe that, based on the Act, Respondent had an
5 affirmative obligation to disclaim her position and her role as an attendee, even though she was not part of the formal program. Id. At the Board’s next regularly scheduled meeting on June 10, 2021, the removal of Christopher Columbus Day from the District calendar was raised again, this time as part of the Board’s formal agenda. Id. Nearly all attendees at the Board meeting expressed their outrage at what the Board and Respondent had done, and demanded that Christopher Columbus Day be reinstated. Id. In their Complaint, Complainants contend that Respondent circulated incorrect and incomplete information about what other school districts had done on the Columbus Day issue, and that Respondent was pursuing her own personal agenda in violation of the Act. Id. at 5. At a special Board meeting on June 21, 2021, which was attended by over 400 members of the community, the Board, including Respondent, voted to rescind its prior action and to reinstate Columbus Day on the District calendar. Id. Prior to her vote, Respondent stated that a committee should be created to further study the matter, an action which was not taken prior to the earlier “resolution from the floor.” Id. Still reeling from what they believe to be a violation of Respondent’s ethical obligations, Complainants, who come across as sincere, caring, intelligent and dedicated citizens and taxpayers, sought relief from the Commission for Respondent’s role as a leader in creating what they believe to be bad public policy, and for acting outside the scope of her authority as a member of the Board. Id. Based on the foregoing factual findings, ALJ Baron concluded as follows: Respondent, who did not use her title outside the scope of public Board meetings, was convinced that her opinion on changing the Christopher Columbus holiday on the District calendar was correct based on her research, and that action by the Board was required despite the potential repercussions. Although Respondent made the ill-advised and perhaps naive decision to try to force the Board to act on a last minute resolution from the floor, which was not part of the monthly meeting agenda, and while Complainants argue that such conduct technically violates the Act, ALJ Baron concluded that her conduct “does not rise to the level of conduct for which a penalty is warranted.” Id. at 8. By voting with the majority of the Board to rescind the prior Board action after hearing the consensus of the community, even if Respondent had committed any prima facie violations of the Act, Respondent corrected her proposed policy change which, at worst, was politically misguided. Id. Requiring a Board member who attends a community forum(s) to, prior to speaking about their votes, disclaim their speech would have a chilling effect on elected officials at levels of government. Id. at 8-9.
6 Other than being a “driving force” in the decision to change the District calendar, Respondent’s actions were not self-serving in nature and/or could have resulted in her securing any kind of personal benefit from the change. Instead, Respondent’s conduct was “bad public policy” which was later revoked by a majority of the Board (when it rescinded its prior action). The rescission of the previous Board action is a recognition that Respondent and her fellow Board members erred. Id. at 9. Respondent’s conduct may have been bad policy, but “it does not rise to the level of unethical conduct under the statute.” Id. With the above in mind, ALJ Baron ordered Respondent should not be penalized for any violation of N.J.S.A. 18A:12-24.1(g) and/or N.J.S.A. 18A:12-24.1(e), and summary decision is granted in Respondent’s favor. Id. IV. Exceptions Neither Complainants nor Respondent filed Exceptions to the Initial Decision within the time period prescribed by N.J.A.C. 1:1-18.4(a). V. Analysis Upon a careful and independent review of the facts and evidence set forth in the record, the Commission adopts ALJ Baron’s findings of fact; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as contended in Count 4; but rejects the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. As an initial matter, the Commission agrees with ALJ Baron that Respondent’s role as the “driving force” behind the change to the District calendar; the walk-on motion for the resolution to change the District’s calendar; and the failure to include the resolution on the Board agenda, thus depriving the community of the opportunity to have advance notice of, to debate, and to discuss the issue are not reasons why she should be found in violation of the Act. In fact, in its Decision on Motion to Dismiss, the Commission specifically said that if Complainants could prove that Respondent’s meeting with Complainants on May 31, 2021 (Count 2) and alleged interview on June 13, 2021 (Count 4), constituted action beyond the scope of her duties as a Board member, and had the potential to compromise the Board, a violation(s) of N.J.S.A. 18A:12-24.1(e) could be found. Moreover, if Complainants could prove that Respondent disclosed confidential or inaccurate information to Complainants during the May 31, 2021, meeting (Count 2), a violation of N.J.S.A. 18A:12-24.1(g) could be established. Decision on Motion to Dismiss at 17-18. In this way, the Commission dispensed with the argument that any action taken by Respondent at the Board meeting on May 13, 2021, June 10, 2021, and/or June 21, 2021, even if procedurally inappropriate and/or contrary to best practice, was unethical. Instead, the Commission focused on Respondent’s conduct and actions outside of scheduled Board meetings.
7 Based on a thorough review of the record, the Commission also agrees with ALJ Baron that there is insufficient factual evidence that, on May 31, 2021, Respondent disclosed “confidential” or “inaccurate” information to Complainants. Although Complainants may have believed that the information was “confidential” and/or that it was not appropriate for Respondent to have discussed it with them, Complainants needed to identify the specific information that was confidential and the basis for its confidentiality, and/or substantiate the inaccuracy of any information that Respondent may have provided during their meeting on May 31, 2021. The record before ALJ Baron did not reveal such evidence and, therefore, a violation of N.J.S.A. 18A:12-24.1(g) is not supportable. Similarly, the Commission further agrees there is insufficient factual evidence that Respondent violated N.J.S.A. 18A:12-24.1(e) when she attended a community forum, regardless of whether she was invited, and did not preface her statements to attendees with a disclaimer. In this regard, and other than Complainants’ supposition, there is no evidence that any specific statement was officially attributed to Respondent. Absent evidence that a statement was made by Respondent or attributed to her in some official capacity, there is no way for the Commission to determine whether it required a disclaimer or, even if a disclaimer was used, whether the disclaimer was vitiated by the substance of the statement. However, the Commission rejects ALJ Baron’s conclusion that there is insufficient factual evidence that, on May 31, 2021, Respondent violated N.J.S.A. 18A:12-24.1(e) when she met with Complainants to discuss the removal of Columbus Day from the District calendar. In this regard, N.J.S.A. 18A:12-24.1(e) states, “I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.” In order to substantiate a violation of N.J.S.A. 18A:12-24.1(e), Complainants shall adduce certain factual evidence, namely “factual evidence that Respondent made personal promises or took action beyond the scope of her duties such that, by its nature, had the potential to compromise the board.” N.J.A.C. 6A:28-6.4(a)(5). The factual record, limited as it is, is undisputed and confirms that: on May 13, 2021, and without prior notice, Respondent made a walk on motion to approve a resolution to change the District calendar, namely to change Columbus Day to Indigenous People’s Day; upon learning of the change, “there was a huge public outcry against what Respondent and a majority of the Board had done”; Complainants sought a meeting with Respondent “to address their concerns and listen to what Respondent had to say about the drastic change on the calendar”; the meeting between Complainants and Respondent occurred on May 31, 2021, and lasted for almost two hours; during the meeting, Respondent attempted to “justify her actions,” but was unsuccessful in addressing Complainants’ concerns; in the approximately thirty (30) days that followed the Board’s vote on May 13, 2021, “there was a tremendous backlash throughout the community”; at the Board’s meeting on June 10, 2021, all attendees save three “expressed their outrage at what the [B]oard and [Respondent] had done” on May 13, 2021, and requested that Columbus Day be reinstated to the District calendar; and at a special meeting on June 21, 2021, which was attended by over 400 members of the community, the Board, including Respondent, voted to rescind its prior action and to reinstate Columbus Day. Id. at 3-5.
8 Even if Respondent, when she agreed to meet with Complainants, tried to explain to Complainants that she was speaking as an “individual,” the fact is she was the “driving force” of a Board action that resulted in a “huge public outcry,” she was asked to attend the meeting because of that action, Complainants wanted to express their concerns to that Board member, Complainants wanted to listen to Respondent’s rationale for the “drastic change” that she initiated to the District calendar. Id. In other words, Complainants wanted Respondent, as a Board member, to be accountable, and to justify her actions as a Board member, and any attempt to represent or disclaim otherwise was futile. Respondent knew that there was “a huge public outcry” and “tremendous backlash” from the community about her motion and the Board’s action. As a result, and when asked by Complainants, Respondent should have declined the meeting, and referred Complainants to the District’s administration, or to the Board. Respondent should never have agreed to meet to discuss, or to comment upon, official Board action, especially when the action was so presently divisive and a palpable point of contention. By attending the meeting to discuss Board action, Respondent clearly took action beyond the scope of her duties as a Board member. Not only did Respondent’s acceptance of, and attendance at, the meeting with Complainants constitute action beyond the scope of her duties as a Board member, it also had the potential to compromise the Board. As a Board member, Respondent is required, pursuant to N.J.S.A. 18A:12-24.1(j), to refer all complaints to the District’s administration, and is prohibited from resolving, or attempting to resolve, a complaint at a time other than at a public Board meeting, and prior to the failure of an administrative solution. By not referring Complainants’ concerns to the administration, which she was aware of prior to attending the meeting, Respondent undermined the administration’s authority (and ability) to potentially resolve or address the concerns and this, in turn, imposes an unnecessary strain and hardship on the relationship between the administration and the Board. Moreover, given the public outcry over Respondent’s motion and the Board’s action, it was incumbent upon the Board, and not Respondent, to publicly discuss and explain the rationale for its decision-making, and not for Respondent to explain it to Complainants. Although Respondent may have made the motion which caused the Board to take action, Respondent did not, by herself, cause the complained of action (even if she was the driving force). Instead, it was the Board, and the Board alone. Therefore, it was the Board’s responsibility, and not Respondent’s, to address any concerns, including those from Complainants, about why certain action was taken. Agreeing to meet with certain constituents and to offer her rationale undermined the ability of the Board to explain to the community at large, which included Complainants, why the action was taken. By attempting to explain or rationalize why she made the motion, Respondent compromised the integrity of the Board’s decision-making process. Consequently, and regardless of how Respondent may have attempted to qualify the capacity in which she was speaking and the capacity in which she was attending the meeting, the record supports a finding that Respondent violated N.J.S.A. 18A:12-24.1(e) in Count 2. VI. Decision
9 For the reasons more fully detailed above, the Commission adopts ALJ Baron’s findings of fact; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12- 24.1(e) as contended in Count 4; but rejects the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. VII. Penalty Having found that Respondent violated N.J.S.A. 18A:12-24.1(e), and following its review of the record, the Commission recommends a penalty of reprimand, the lowest form of sanction/penalty that can be imposed for a violation of the Act. The Commission’s recommended penalty of reprimand is predicated on the fact that Respondent’s actions, although violative of the Code, did not appear to be willful, wanton, or reckless, and there is no evidence that she has previously been found in violation of the Act. As such, the Commission recommends that Respondent be reprimanded for having violated N.J.S.A. 18A:12-24.1(e). Pursuant to N.J.S.A. 18A:12-29(c), this decision shall be forwarded to the Commissioner of Education (Commissioner) for review of the Commission’s recommended sanction. Parties may either: 1) file exceptions to the recommended sanction; 2) file an appeal of the Commission’s findings of violations of the Act; or 3) file both exceptions to the recommended sanction and an appeal of the Commission’s findings of violations of the Act. Parties taking exception to the recommended sanctions of the Commission but not disputing the Commission’s findings of violations may file, within thirteen (13) days from the date the Commission’s decision is forwarded to the Commissioner, written exceptions regarding the recommended sanctions to the Commissioner. The forwarding date shall be the mailing date to the parties, as indicated below. Such exceptions must be forwarded to: Commissioner of Education, c/o Bureau of Controversies and Disputes, P.O. Box 500, Trenton, New Jersey 08625, marked “Attention: Comments on Ethics Commission Sanction,” as well as to ControversiesDisputesFilings@doe.nj.gov. A copy of any comments filed must be sent to the Commission (school.ethics@doe.nj.gov) and all other parties. Parties seeking to appeal the Commission’s findings of violations must file an appeal pursuant to the standards set forth at N.J.A.C. 6A:4, et seq. within thirty (30) days of the filing date of the decision from which the appeal is taken. The filing date shall be three (3) days after the mailing date to the parties, as indicated below. In such cases, the Commissioner’s review of the Commission’s recommended sanctions will be deferred and incorporated into the Commissioner’s review of the findings of violations on appeal. Where a notice of appeal has been filed on or before the due date for exceptions to the Commission’s recommended sanction (thirteen (13) days from the date the decision is mailed by the Commission), exceptions need not be filed by that date, but may be incorporated into the appellant’s brief on appeal. Robert W. Bender, Chairperson School Ethics Commission
10 Mailing Date: January 31, 2023
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
67-23SEC New Jersey Commissioner of Education Final Decision Maria Ricupero and Gerlando Termini, Complainants, Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, Respondent. Synopsis Petitioners, citizens of Randolph, alleged that respondent, a member of the Randolph Board of Education, violated multiple sections of the School Ethics Act, N.J.S.A. 18A:12-24.1, through actions she took as the chief proponent of a plan to eliminate the Columbus Day holiday from the school district’s calendar — a result that generated great community outcry over the lack of public vetting of the plan prior to the Board taking action to eliminate the holiday. The School Ethics Commission (SEC) determined that the respondent violated N.J.S.A. 18A:12-24.1(e) of the Code of Ethics for School Board Members and recommended a penalty of reprimand. The case was forwarded to the Commissioner for final determination of the appropriate penalty in this matter. Upon review, the Commissioner concurred with the penalty recommendation of the SEC for respondent’s participation in a meeting with members of the public, which constituted action beyond the scope of her duties as a board member and had the potential to compromise the Board. Accordingly, the respondent was reprimanded as a school official found to have violated the School Ethics Act. This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commissioner. SEC Dkt. No. C25-21 OAL Dkt. No. EEC 10170-21 Agency Dkt. No. 22-1/23 New Jersey Commissioner of Education Final Decision Maria Ricupero and Gerlando Termini, Complainants, v. Jeanne Stifelman, Board of Education of the Township of Randolph, Morris County, Respondent. The Commissioner has reviewed the record of this matter and the January 31, 2023 decision of the School Ethics Commission (Commission). The Commission found that respondent Jeanne Stifelman, a member of the Randolph Township Board of Education, violated N.J.S.A. 18A:12-24(e). The Commission recommended a penalty of reprimand for the violation. The Commission’s decision was forwarded to the Commissioner for final determination on the recommended penalty pursuant to N.J.S.A. 18A:12-29(c). Respondent neither filed exceptions to the recommended penalty nor instituted an appeal, pursuant to N.J.A.C. 6A:4-1 et seq., of the Commission’s underlying finding of violation. Upon review, the Commissioner concurs with the penalty recommended by the Commission for respondent’s participation in a May 31, 2021 meeting with members of the 67-23SEC 2 public, which constituted action beyond the scope of her duties as a Board member and had the potential to compromise the Board. Accordingly, respondent is hereby reprimanded as a school official found to have violated the School Ethics Act. IT IS SO ORDERED.1 ACTING COMMISSIONER OF EDUCATION Date of Decision: Date of Mailing: 1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date of mailing of this decision. March 9, 2023 March 10, 2023 Before the School Ethics Commission OAL Docket No.: EEC-10170-21 SEC Docket No.: C25-21 Final Decision Maria Ricupero and Gerlando Termini, Complainants v. Jeanne Stifelman, Randolph Township Board of Education, Morris County, Respondent I. Procedural History The above-captioned matter arises from a Complaint that was filed on July 16, 2021, by Maria Ricupero (Complainant Ricupero) and Gerlando Termini (Complainant Termini) (collectively referred to as Complainants), alleging that Jeanne Stifelman (Respondent), a member of the Randolph Township Board of Education (Board), violated the School Ethics Act (Act), N.J.S.A 18A:12-21 et seq. More specifically, the Complaint avers that Respondent violated N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12-24.1(c), N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12- 24.1(f), and N.J.S.A 18A:12-24(b) in Count 1, violated N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12- 24.1(c), N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(g), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 2, violated N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(f), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 3, and violated N.J.S.A 18A:12-24.1(e), N.J.S.A 18A:12-24.1(f), and N.J.S.A 18A:12-24(b) in Count 4. On July 16, 2021, the Complaint was served on Respondent, via electronic mail, notifying her that ethics charges had been filed against her with the School Ethics Commission (Commission), and advising that she had twenty (20) days to file a responsive pleading. 1 On August 4, 2021, Respondent filed a Motion to Dismiss in Lieu of Answer (Motion to Dismiss), and also alleged that the Complaint is frivolous. On August 27, 2021, Complainants filed a response to the Motion to Dismiss and allegation of frivolous filing. Thereafter, and at its meeting on November 16, 2021, the Commission adopted a decision granting the Motion to Dismiss as to Count 1 (in its entirety); as to N.J.S.A 18A:12-24.1(b), N.J.S.A 18A:12-24.1(c), N.J.S.A 18A:12-24(b), and N.J.S.A 18A:12-24(c) in Count 2; as to Count 3 (in its entirety); and as to N.J.S.A 18A:12-24.1(f), and N.J.S.A 18A:12-24(b) in Count 4, 1 In order to conduct business during the Coronavirus (COVID-19) pandemic, the Commission implemented an electronic filing system, which remains a permissible method by which the Commission and parties can effectuate service of process. Consequently, service of process was effectuated by the Commission through electronic transmission only 2 and denying the Motion to Dismiss as to all other allegations. The Commission also adopted a decision finding the Complaint not frivolous, and denying Respondent’s request for sanctions; directing Respondent to file an Answer to Complaint (Answer) as to the remaining allegations in the Complaint (N.J.S.A 18A:12-24.1(e) and N.J.S.A 18A:12-24.1(g) (Count 2) and N.J.S.A 18A:12-24.1(e) (Count 4)); and transmitting the above-captioned matter to the Office of Administrative Law (OAL) following receipt of the Answer. On December 8, 2021, Respondent filed an Answer as directed, and the above-captioned matter was transmitted to the OAL. At the OAL, the contested matter was assigned to the Honorable Andrew M. Baron, Administrative Law Judge (ALJ Baron). Initial Decision (Granting Summary Decision) at 1. Following the filing of Respondent’s Notice of Motion for Summary Decision, oral argument was held on June 28, 2022, with supplemental argument on October 11, 2022; thereafter, the record closed. Id. at 2. On November 22, 2022, ALJ Baron issued an Initial Decision (Granting Summary Decision) detailing his findings of fact and legal conclusions, and the Commission acknowledged receipt of same; therefore, the forty-five (45) day statutory period for the Commission to issue a Final Decision was January 6, 2023. Prior to January 6, 2023, the Commission requested a forty-five (45) day extension of time to issue its final decision so as to provide the Commission, which only meets monthly, with the opportunity to receive and review the full record. Pursuant to N.J.S.A. 52:14B-10(c) and N.J.A.C. 1:1-18.8, and for good cause shown, the Commission was granted an extension until February 21, 2023. At its regularly scheduled meeting on December 20, 2022, the Commission considered the full record in this matter. Subsequently, and at a special meeting on January 31, 2023, and for the reasons more fully detailed below, the Commission voted to adopt ALJ Baron’s findings of fact; adopt the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopt the legal conclusion that Respondent did not violate N.J.S.A. 18A:12- 24.1(e) as contended in Count 4; but to reject the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. Based on its finding of a violation, the Commission also voted to recommend a penalty of reprimand. II. Decision on Motion to Dismiss In its Decision on Motion to Dismiss, the Commission stated, in relevant part: The Commission, however, finds that if the facts [as] argued are proven true by sufficient credible evidence, they may support a finding that Respondent violated N.J.S.A. 18A:12-24.1(e) in Count 2 and Count 4. Although Respondent maintains that she provided “sufficient disclaimers that she was speaking as an individual” during the meeting on May 31, 2021 with Complainants and in connection with the alleged interview on June 13, 2021, the Commission has advised that despite the use of an otherwise appropriate disclaimer, the content of a message or communication could render any potential disclaimer meaningless. As such, if Complainant can demonstrate that 3 Respondent’s meeting with Complainants and alleged interview on June 13, 2021, constituted action beyond the scope of her duties as a Board member, and had the potential to compromise the Board (e.g., because she responded to or addressed a complaint or concern before it could be resolved by the administration), a violation may be found. Therefore, the Commission finds that the contended violations of N.J.S.A. 18A:12-24.1(e) in Count 2 and Count 4 should not be dismissed. Decision on Motion to Dismiss at 17. In addition, and regarding the stated violation of N.J.S.A. 18A:12-24.1(g) in Count 2, the Commission advised: After review of the pleadings, the Commission finds that if the facts as asserted are proven true by sufficient credible evidence, they may support a finding that Respondent violated N.J.S.A. 18A:12-24.1(g). If Complainants can prove by sufficient credible evidence that Respondent disclosed certain information to Complainants during the May 31, 2021 meeting, namely confidential information from the DISC/DEI committee meetings or any personally identifiable student information, and such information was “not public under any laws, regulations or court orders of this State,” or was “otherwise confidential in accordance with [B]oard policies, procedures or practices,” a violation of N.J.S.A. 18A:12-24.1(g) may be established. Further, if Complainants can demonstrate that Respondent’s sharing of data regarding the treatment of Columbus Day in other Morris County schools was indeed not miniscule as suggested by Respondents and establishes that the inaccuracy was other than a reasonable mistake or personal opinion, a violation of N.J.S.A. 18A:12-24.1(g) may also be established. Therefore, the Commission finds that the alleged violation of N.J.S.A. 18A:12-24.1(g) in Count 2 should not be dismissed. Decision on Motion to Dismiss at 18. III. Initial Decision (Granting Summary Decision) In the Initial Decision (Granting Summary Decision), ALJ Baron issued findings of fact, and noted that the “parties essentially agree upon” the facts, but “dispute the application and interpretation of the law in relation to the facts.” Initial Decision (Granting Summary Decision) at 2. In the “Factual Discussion” section of his Initial Decision (Granting Summary Decision), ALJ Baron initially noted that the genesis of the Complaint is certain actions taken by the Respondent in her capacity as a member of the Randolph Board of Education (Board). Id. More specifically, at its regularly scheduled meeting on May 13, 2021, Respondent and another Board member, Susan Devito, introduced a “walk-on” resolution to change the Randolph Township School District’s (District) observation of Columbus Day in October to “Indigenous People’s Day.” Id. at 3. For reasons unknown, Respondent brought the resolution on as a last minute 4 motion from the floor, which is somewhat unusual for a matter that would have such significant importance. As such, the resolution was not part of the original meeting agenda advertised to members of the community, which did not allow for a full-fledged debate and discussion prior to the vote. Id. Ultimately, a majority of the Board voted to remove Columbus Day from the District calendar. Id. Upon learning of the change to the District calendar, which was not “vetted” in the normal way such changes are usually introduced, there was a huge public outcry against what Respondent and a majority of the Board had done. Id. Thereafter, Complainant Ricupero and Complainant Termini felt compelled to exercise their rights as citizens to file an ethics complaint against Respondent Stifelman who was the leading proponent of the change. Id. However, prior to filing their Complaint with the Commission, Complainant Ricupero and Complainant Termini sought a meeting with Respondent Stifelman to address their concerns and listen to what Respondent had to say about the drastic change to the District calendar. Id. The meeting, which occurred on May 31, 2021, lasted almost two hours, and Respondent was not aware it was being recorded. During the meeting, Respondent attempted to justify her actions, but was unsuccessful in addressing Complainants’ concerns. Id. Complainants further contend that during the course of the meeting, Respondent also revealed “confidential information” from a local diversity committee on which she served as a member, but it is not disputed that the information she shared did not identify specific individuals or specific cases which were discussed by the committee. Id. at 3-4. However, Complainants strongly believe that none of this information should have been discussed even in general terms. Id. at 4. It is unclear why this unrelated subject came up during a meeting between the parties the primary purpose of which was to discuss the removal of Columbus Day from the District calendar. Id. In the approximately thirty (30) days that followed the initial vote to remove Columbus Day from the District calendar, there was a tremendous backlash throughout the community, many of whom are proud Italian-Americans, who rely on Columbus Day as a marker for their Italian heritage, not just a day off from work and school as some have suggested. Id. In a hastily arranged community forum sponsored by the Randolph Italian American One Voice Committee, several local, county and State elected officials, and about sixty (60) members of the community appeared to speak out against the removal of Columbus Day from the District calendar. Id. Although she was not invited to the forum, Respondent appeared and was seen speaking to members of the press and giving out information. Id. However, Ms. Stifelman was not a speaker, and did not use her title as a Board member to defend her actions. Id. Complainants strongly believe that by attending the forum, and being seen speaking to members of the press even though she was not quoted, Respondent had an affirmative obligation to identify herself as a Board member to anyone she was speaking with, and further believe that the anonymous quote which appeared in the newspaper following the forum could only be attributed to her. Id. Complainants further believe that, based on the Act, Respondent had an 5 affirmative obligation to disclaim her position and her role as an attendee, even though she was not part of the formal program. Id. At the Board’s next regularly scheduled meeting on June 10, 2021, the removal of Christopher Columbus Day from the District calendar was raised again, this time as part of the Board’s formal agenda. Id. Nearly all attendees at the Board meeting expressed their outrage at what the Board and Respondent had done, and demanded that Christopher Columbus Day be reinstated. Id. In their Complaint, Complainants contend that Respondent circulated incorrect and incomplete information about what other school districts had done on the Columbus Day issue, and that Respondent was pursuing her own personal agenda in violation of the Act. Id. at 5. At a special Board meeting on June 21, 2021, which was attended by over 400 members of the community, the Board, including Respondent, voted to rescind its prior action and to reinstate Columbus Day on the District calendar. Id. Prior to her vote, Respondent stated that a committee should be created to further study the matter, an action which was not taken prior to the earlier “resolution from the floor.” Id. Still reeling from what they believe to be a violation of Respondent’s ethical obligations, Complainants, who come across as sincere, caring, intelligent and dedicated citizens and taxpayers, sought relief from the Commission for Respondent’s role as a leader in creating what they believe to be bad public policy, and for acting outside the scope of her authority as a member of the Board. Id. Based on the foregoing factual findings, ALJ Baron concluded as follows: Respondent, who did not use her title outside the scope of public Board meetings, was convinced that her opinion on changing the Christopher Columbus holiday on the District calendar was correct based on her research, and that action by the Board was required despite the potential repercussions. Although Respondent made the ill-advised and perhaps naive decision to try to force the Board to act on a last minute resolution from the floor, which was not part of the monthly meeting agenda, and while Complainants argue that such conduct technically violates the Act, ALJ Baron concluded that her conduct “does not rise to the level of conduct for which a penalty is warranted.” Id. at 8. By voting with the majority of the Board to rescind the prior Board action after hearing the consensus of the community, even if Respondent had committed any prima facie violations of the Act, Respondent corrected her proposed policy change which, at worst, was politically misguided. Id. Requiring a Board member who attends a community forum(s) to, prior to speaking about their votes, disclaim their speech would have a chilling effect on elected officials at levels of government. Id. at 8-9. 6 Other than being a “driving force” in the decision to change the District calendar, Respondent’s actions were not self-serving in nature and/or could have resulted in her securing any kind of personal benefit from the change. Instead, Respondent’s conduct was “bad public policy” which was later revoked by a majority of the Board (when it rescinded its prior action). The rescission of the previous Board action is a recognition that Respondent and her fellow Board members erred. Id. at 9. Respondent’s conduct may have been bad policy, but “it does not rise to the level of unethical conduct under the statute.” Id. With the above in mind, ALJ Baron ordered Respondent should not be penalized for any violation of N.J.S.A. 18A:12-24.1(g) and/or N.J.S.A. 18A:12-24.1(e), and summary decision is granted in Respondent’s favor. Id. IV. Exceptions Neither Complainants nor Respondent filed Exceptions to the Initial Decision within the time period prescribed by N.J.A.C. 1:1-18.4(a). V. Analysis Upon a careful and independent review of the facts and evidence set forth in the record, the Commission adopts ALJ Baron’s findings of fact; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as contended in Count 4; but rejects the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. As an initial matter, the Commission agrees with ALJ Baron that Respondent’s role as the “driving force” behind the change to the District calendar; the walk-on motion for the resolution to change the District’s calendar; and the failure to include the resolution on the Board agenda, thus depriving the community of the opportunity to have advance notice of, to debate, and to discuss the issue are not reasons why she should be found in violation of the Act. In fact, in its Decision on Motion to Dismiss, the Commission specifically said that if Complainants could prove that Respondent’s meeting with Complainants on May 31, 2021 (Count 2) and alleged interview on June 13, 2021 (Count 4), constituted action beyond the scope of her duties as a Board member, and had the potential to compromise the Board, a violation(s) of N.J.S.A. 18A:12-24.1(e) could be found. Moreover, if Complainants could prove that Respondent disclosed confidential or inaccurate information to Complainants during the May 31, 2021, meeting (Count 2), a violation of N.J.S.A. 18A:12-24.1(g) could be established. Decision on Motion to Dismiss at 17-18. In this way, the Commission dispensed with the argument that any action taken by Respondent at the Board meeting on May 13, 2021, June 10, 2021, and/or June 21, 2021, even if procedurally inappropriate and/or contrary to best practice, was unethical. Instead, the Commission focused on Respondent’s conduct and actions outside of scheduled Board meetings. 7 Based on a thorough review of the record, the Commission also agrees with ALJ Baron that there is insufficient factual evidence that, on May 31, 2021, Respondent disclosed “confidential” or “inaccurate” information to Complainants. Although Complainants may have believed that the information was “confidential” and/or that it was not appropriate for Respondent to have discussed it with them, Complainants needed to identify the specific information that was confidential and the basis for its confidentiality, and/or substantiate the inaccuracy of any information that Respondent may have provided during their meeting on May 31, 2021. The record before ALJ Baron did not reveal such evidence and, therefore, a violation of N.J.S.A. 18A:12-24.1(g) is not supportable. Similarly, the Commission further agrees there is insufficient factual evidence that Respondent violated N.J.S.A. 18A:12-24.1(e) when she attended a community forum, regardless of whether she was invited, and did not preface her statements to attendees with a disclaimer. In this regard, and other than Complainants’ supposition, there is no evidence that any specific statement was officially attributed to Respondent. Absent evidence that a statement was made by Respondent or attributed to her in some official capacity, there is no way for the Commission to determine whether it required a disclaimer or, even if a disclaimer was used, whether the disclaimer was vitiated by the substance of the statement. However, the Commission rejects ALJ Baron’s conclusion that there is insufficient factual evidence that, on May 31, 2021, Respondent violated N.J.S.A. 18A:12-24.1(e) when she met with Complainants to discuss the removal of Columbus Day from the District calendar. In this regard, N.J.S.A. 18A:12-24.1(e) states, “I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.” In order to substantiate a violation of N.J.S.A. 18A:12-24.1(e), Complainants shall adduce certain factual evidence, namely “factual evidence that Respondent made personal promises or took action beyond the scope of her duties such that, by its nature, had the potential to compromise the board.” N.J.A.C. 6A:28-6.4(a)(5). The factual record, limited as it is, is undisputed and confirms that: on May 13, 2021, and without prior notice, Respondent made a walk on motion to approve a resolution to change the District calendar, namely to change Columbus Day to Indigenous People’s Day; upon learning of the change, “there was a huge public outcry against what Respondent and a majority of the Board had done”; Complainants sought a meeting with Respondent “to address their concerns and listen to what Respondent had to say about the drastic change on the calendar”; the meeting between Complainants and Respondent occurred on May 31, 2021, and lasted for almost two hours; during the meeting, Respondent attempted to “justify her actions,” but was unsuccessful in addressing Complainants’ concerns; in the approximately thirty (30) days that followed the Board’s vote on May 13, 2021, “there was a tremendous backlash throughout the community”; at the Board’s meeting on June 10, 2021, all attendees save three “expressed their outrage at what the [B]oard and [Respondent] had done” on May 13, 2021, and requested that Columbus Day be reinstated to the District calendar; and at a special meeting on June 21, 2021, which was attended by over 400 members of the community, the Board, including Respondent, voted to rescind its prior action and to reinstate Columbus Day. Id. at 3-5. 8 Even if Respondent, when she agreed to meet with Complainants, tried to explain to Complainants that she was speaking as an “individual,” the fact is she was the “driving force” of a Board action that resulted in a “huge public outcry,” she was asked to attend the meeting because of that action, Complainants wanted to express their concerns to that Board member, Complainants wanted to listen to Respondent’s rationale for the “drastic change” that she initiated to the District calendar. Id. In other words, Complainants wanted Respondent, as a Board member, to be accountable, and to justify her actions as a Board member, and any attempt to represent or disclaim otherwise was futile. Respondent knew that there was “a huge public outcry” and “tremendous backlash” from the community about her motion and the Board’s action. As a result, and when asked by Complainants, Respondent should have declined the meeting, and referred Complainants to the District’s administration, or to the Board. Respondent should never have agreed to meet to discuss, or to comment upon, official Board action, especially when the action was so presently divisive and a palpable point of contention. By attending the meeting to discuss Board action, Respondent clearly took action beyond the scope of her duties as a Board member. Not only did Respondent’s acceptance of, and attendance at, the meeting with Complainants constitute action beyond the scope of her duties as a Board member, it also had the potential to compromise the Board. As a Board member, Respondent is required, pursuant to N.J.S.A. 18A:12-24.1(j), to refer all complaints to the District’s administration, and is prohibited from resolving, or attempting to resolve, a complaint at a time other than at a public Board meeting, and prior to the failure of an administrative solution. By not referring Complainants’ concerns to the administration, which she was aware of prior to attending the meeting, Respondent undermined the administration’s authority (and ability) to potentially resolve or address the concerns and this, in turn, imposes an unnecessary strain and hardship on the relationship between the administration and the Board. Moreover, given the public outcry over Respondent’s motion and the Board’s action, it was incumbent upon the Board, and not Respondent, to publicly discuss and explain the rationale for its decision-making, and not for Respondent to explain it to Complainants. Although Respondent may have made the motion which caused the Board to take action, Respondent did not, by herself, cause the complained of action (even if she was the driving force). Instead, it was the Board, and the Board alone. Therefore, it was the Board’s responsibility, and not Respondent’s, to address any concerns, including those from Complainants, about why certain action was taken. Agreeing to meet with certain constituents and to offer her rationale undermined the ability of the Board to explain to the community at large, which included Complainants, why the action was taken. By attempting to explain or rationalize why she made the motion, Respondent compromised the integrity of the Board’s decision-making process. Consequently, and regardless of how Respondent may have attempted to qualify the capacity in which she was speaking and the capacity in which she was attending the meeting, the record supports a finding that Respondent violated N.J.S.A. 18A:12-24.1(e) in Count 2. VI. Decision 9 For the reasons more fully detailed above, the Commission adopts ALJ Baron’s findings of fact; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(g) as alleged in Count 2; adopts the legal conclusion that Respondent did not violate N.J.S.A. 18A:12- 24.1(e) as contended in Count 4; but rejects the legal conclusion that Respondent did not violate N.J.S.A. 18A:12-24.1(e) as asserted in Count 2. VII. Penalty Having found that Respondent violated N.J.S.A. 18A:12-24.1(e), and following its review of the record, the Commission recommends a penalty of reprimand, the lowest form of sanction/penalty that can be imposed for a violation of the Act. The Commission’s recommended penalty of reprimand is predicated on the fact that Respondent’s actions, although violative of the Code, did not appear to be willful, wanton, or reckless, and there is no evidence that she has previously been found in violation of the Act. As such, the Commission recommends that Respondent be reprimanded for having violated N.J.S.A. 18A:12-24.1(e). Pursuant to N.J.S.A. 18A:12-29(c), this decision shall be forwarded to the Commissioner of Education (Commissioner) for review of the Commission’s recommended sanction. Parties may either: 1) file exceptions to the recommended sanction; 2) file an appeal of the Commission’s findings of violations of the Act; or 3) file both exceptions to the recommended sanction and an appeal of the Commission’s findings of violations of the Act. Parties taking exception to the recommended sanctions of the Commission but not disputing the Commission’s findings of violations may file, within thirteen (13) days from the date the Commission’s decision is forwarded to the Commissioner, written exceptions regarding the recommended sanctions to the Commissioner. The forwarding date shall be the mailing date to the parties, as indicated below. Such exceptions must be forwarded to: Commissioner of Education, c/o Bureau of Controversies and Disputes, P.O. Box 500, Trenton, New Jersey 08625, marked “Attention: Comments on Ethics Commission Sanction,” as well as to ControversiesDisputesFilings@doe.nj.gov. A copy of any comments filed must be sent to the Commission (school.ethics@doe.nj.gov) and all other parties. Parties seeking to appeal the Commission’s findings of violations must file an appeal pursuant to the standards set forth at N.J.A.C. 6A:4, et seq. within thirty (30) days of the filing date of the decision from which the appeal is taken. The filing date shall be three (3) days after the mailing date to the parties, as indicated below. In such cases, the Commissioner’s review of the Commission’s recommended sanctions will be deferred and incorporated into the Commissioner’s review of the findings of violations on appeal. Where a notice of appeal has been filed on or before the due date for exceptions to the Commission’s recommended sanction (thirteen (13) days from the date the decision is mailed by the Commission), exceptions need not be filed by that date, but may be incorporated into the appellant’s brief on appeal. Robert W. Bender, Chairperson School Ethics Commission Mailing Date: January 31, 2023 10
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