In a recent decision, the state commissioner of education determined that a board member violated the School Ethics Act when he personally issued a “Rice Notice” to the board secretary/school business administrator, and directed the board attorney to issue a second Rice Notice to the board secretary/school business administrator, both without prior notification to the board of education and without the recommendation and approval of the superintendent of schools.

The commissioner’s determination was in the context of an appeal of the underlying determination by the School Ethics Commission (SEC) in September of 2015. The commissioner determined that the SEC’s decision was supported by sufficient, credible evidence and not arbitrary, capricious or contrary to law. The commissioner also determined that the penalty of reprimand recommended by the SEC was appropriate, finding it was consistent with the penalties in similar prior cases.

In Cheng v. Rodas, the commissioner determined that the evidence in the record fully supported the SEC determination that the board member acted beyond the scope of his authority in unilaterally issuing the Rice Notice. This was private action, taken independently without the notification to and recommendation of the board of education or the superintendent. Such action compromised the board as it implied that the board member was acting on behalf of the board of education, when in fact, he was not. No one had authorized the issuance of a Rice Notice and it resulted in the board secretary/school business administrator’s resignation. Such action violated N.J.S.A. 18A:12-24.1 (e) of the Code of Ethics for School Board Members.

The SEC found the respondent’s arguments that he relied on the advice of board counsel, and that his conduct was not a clear violation of the School Ethics Act, not to be persuasive. If he thought that there was uncertainty as to the matter, the board member should have sought an advisory opinion from the School Ethics Commission, rather than taking action on his own.

This commissioner decision was unique as it involved an appeal of the SEC’s earlier substantive decision as well as a determination on the recommended penalty. While the commissioner has always ruled on the SEC’s recommended penalty, it has only been since 2008, with the enactment of P.L. 2008, c. 36, that the SEC’s underlying finding of a violation may be appealed to the commissioner, with the commissioner reviewing the penalty after making a determination on the finding of violation under appeal.  Prior to 2008, appeals of the SEC’s finding of violation were made to the State Board of Education.

Since 2008 there have been only ten commissioner appeals of SEC substantive determinations. Ironically three of those appeals involved the issuance of a Rice Notice in a series of cases, Persi v. Woska, in 2012, 2014 and 2015.

Board members are encouraged to review this decision with their board attorney.