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Appellate Division Upholds Findings of School Ethics Violations

By on May 24, 2017 in School Ethics Act with 0 Comments

On May 22, 2017, the New Jersey Appellate Division in Lowell v. Smallwood affirmed the Commissioner of Education’s decision that a board of education member violated various provisions of the School Ethics Act (“Act”) for her dealings with a potential candidate for superintendent. Specifically, the board member violated N.J.S.A. 18A:12-24.1(c) and (e) for acting beyond the scope of her authority and making personal promises.

Felicia Simmons, Geneva Smallwood, and Corey Lowell were members of the Asbury Park Board of Education (“Board”). Lowell initiated a complaint with the School Ethics Commission (“SEC”) asserting that Simmons and Smallwood violated the Act. Lowell testified before the SEC that in November 2013, the Board appointed a superintendent. However, the State fiscal monitor for the school district determined that the candidate was unqualified and overturned the Board’s decision. In February 2014, during a closed meeting, the Board discussed the possibility of hiring that candidate as an interim superintendent. The personnel committee, which included Simmons and Smallwood, were directed to meet with the State monitor to discuss the appointment.

Lowell further testified that at another closed Board meeting, Smallwood stated that she and Simmons met with representatives of the former employer of the potential candidate to discuss his qualifications. This action was contrary to the Board’s instructions. Lowell also stated that the remaining board members were unaware of the visit. Several documents were admitted into evidence before the SEC, including emails scheduling a meeting among Simmons, Smallwood, and the candidate’s representatives. Simmons and Smallwood did not testify.

In March 2015, the SEC issued a decision finding that Simmons and Smallwood violated N.J.S.A. 18A:12-24.1(c) and (e) of the Act, which states as follows:

  1. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.
  2. 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.

The SEC found that Simmons and Smallwood acted beyond the scope of their authority when they made the site visit because they did not have approval of the Board or the State monitor. Further, the SEC found that Simmons and Smallwood improperly made personal promises to the potential candidate by advancing the possibility of employment. As a result of these violations, the SEC recommended a penalty of censure.

Simmons appealed the SEC’s decision to the Commissioner of Education (“Commissioner”). Smallwood did not file an appeal. The Commissioner upheld the SEC’s decision. Simmons further appealed to the Appellate Division.

The Appellate Division found the SEC and Commissioner’s decisions to be supported by substantial evidence and affirmed their decisions. Specifically, the Appellate Division rejected Simmons’ argument that hearsay evidence should not have been considered, as the administrative regulations allow for hearsay. Further, Lowell’s testimony was supported by documentary evidence, such as email correspondences. Importantly, Lowell’s testimony was not contradicted, as no other witnesses testified. In short, the Appellate Division affirmed the SEC and Commissioner.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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