On appeal from the Final Decision of the State Board of Education, 31-05.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Gilroy.
The issue raised on appeal is whether the School Ethics Act, N.J.S.A. 18A:12-21 to -34, specifically N.J.S.A. 18A:12-24j,*fn1 creates an exception to the prohibition on conflicts of interest in N.J.S.A. 18A:12-2.*fn2 We decide this matter of first impression in the negative.
Appellant William J. Kennedy, a former member of the Board of Education of the City of Sea Isle (Sea Isle BOE), appeals from the final decision of the State Board of Education (State Board) entered on January 6, 2006, affirming the decision of the Commissioner of Education (Commissioner), which removed appellant from his seat as a member of the Sea Isle BOE. We affirm.
Appellant's son, M.K., has been diagnosed with an autism spectrum disorder and receives special education in the Sea Isle City School District through an Individualized Special Education Program (IEP). Appellant was first elected to the Sea Isle BOE in 2001. On June 29, 2003, appellant resigned. After his resignation, appellant and his wife filed a due process complaint with the Department of Education (Department) against the Sea Isle BOE on behalf of M.K., disputing their son's special education services, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 to 1482. The action was settled on April 27, 2004, pursuant to a stipulation by the parties.
During the settlement process, appellant won a second term on the Sea Isle BOE, and on April 28, 2004, he assumed the position of its president. However, on March 1, 2005, appellant, on behalf of M.K., filed applications with the Department for emergent relief and for enforcement of the 2004 stipulation of settlement against the Sea Isle BOE. Appellant claimed that M.K. "has been abused and continues to be abused in his current placement and . . . this abuse is the direct result of a lack of support that [M.K.] and his teacher's aide should be receiving from district personnel and behavioral consultants."
On March 5, 2005, the Sea Isle BOE filed a petition with the Commissioner, seeking a declaratory ruling that appellant was disqualified from holding a position on the local board because the two applications, although filed on behalf of appellant's son, created an impermissible conflict of interest under N.J.S.A. 18A:12-2. After appellant filed his answer, the matter was referred to the Office of Administrative Law (OAL) as a contested proceeding.
On May 16, 2005, the Administrative Law Judge (ALJ) recommended that the Sea Isle BOE's petition be dismissed, determining that the local board had failed to demonstrate an incompatible interest on the part of appellant. The ALJ concluded that N.J.S.A. 18A:12-24j created an exception to N.J.S.A. 18A:12-2. In making his decision, the ALJ relied on an October 12, 2004, School Ethics Commission (SEC) advisory opinion in a different matter, which had determined that a parent did not have a substantial conflict of interest in violation of N.J.S.A. 18A:12-24a*fn3 or -24g*fn4 by serving as a member of a local board of education while pursuing an appeal of a Section 504*fn5 determination. The SEC did advise, however, that the board member in that case "must abstain from all board discussions and decisions involving the [section] 504 determination pursuant to N.J.S.A. 18A:12-24c."
On June 30, 2005, the Commissioner rejected the ALJ's initial decision, determining that N.J.S.A. 18A:12-2 controlled, and that N.J.S.A. 18A:12-24j does not serve as an exception to N.J.S.A. 18A:12-2. The Commissioner found that "[h]aving elected to pursue two legal claims against the district alleging violation of the educational rights of his child, there can be no question that [appellant] has an interest of the most direct and personal nature in a claim against the Board . . . ." The Commissioner directed that appellant be removed from his seat on the Sea Isle BOE and directed the Cape May County Superintendent of Schools to fill the vacancy in the April 2006 election. In doing so, the Commissioner determined that the School Ethics Act is intended to guide the conduct of qualified board members, whereas N.J.S.A. 18A:12-2 provides the standard for determining whether an individual is qualified to be a board member. Lastly, the Commissioner determined that N.J.S.A. 18A:12-2 falls within his jurisdiction and that he is not bound by the SEC's interpretation of the School Ethics Act. The State Board affirmed the Commissioner's decision on January 6, 2006.