NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2858-21
IN THE MATTER OF
MARILYN ROMAN AND
SUDHAN THOMAS, and
JERSEY CITY BOARD OF
EDUCATION, HUDSON
COUNTY.
_______________________
Argued December 5, 2023 – Decided December 21, 2023
Before Judges Sumners and Perez Friscia.
On appeal from the New Jersey Commissioner of
Education, Docket No. 1-1/22A.
David B. Rubin argued the cause for appellants Marilyn
Roman and Sudhan Thomas (David B. Rubin, PC,
attorneys; David B. Rubin, of counsel and on the briefs;
Ellen S. Bass, on the briefs).
Sadia Ahsanuddin, Deputy Attorney General, argued
the cause for respondent the Commissioner of
Education (Matthew J. Platkin Attorney General,
attorney; Donna Sue Arons, Assistant Attorney
General, of counsel; Sadia Ahsanuddin, on the brief).
Carl Tanksley Jr., General Counsel, attorney for amicus
curiae New Jersey School Boards Association (Carl
Tanksley Jr., on the brief).
PER CURIAM
Appellants Marilyn Roman and Sudhan Thomas appeal from the May 19,
2022 New Jersey Commissioner of Education's (Commissioner) final decision,
which found they had violated N.J.S.A. 18A:12-24(c), a provision of the School
Ethics Act (SEA), N.J.S.A. 18A:12-21 to -34, and issued the penalty of a
reprimand, accepting the School Ethics Commission's (SEC) adoption of the
Administrative Law Judge's (ALJ) initial decision. Appellants, former Jersey
City Board of Education (Board) members, argue they did not violate the SEA
by voting to approve a settlement regarding actions in which they were
personally named. Alternatively, if they erred in voting, the reprimand was
erroneously imposed because they had followed the advice of counsel. For the
following reasons, we affirm appellants' violation of N.J.S.A. 18A:12-24(c),
reverse the reprimand, and remand to the Commissioner to vacate the penalty.
I.
We discern the following facts from the record. Jersey City
Superintendent of Schools Marcia Lyles filed a federal lawsuit against the
Board, Thomas, Roman, and other defendants. Lyles alleged hostile work
environment and tortious interference, among other claims. Specifically, Lyles
claimed that Board President Thomas and Roman "engaged in a pattern of
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harassment and misconduct towards [her], culminating on January 2, 2019, with
an unlawful Board [r]esolution of non-renewal of her contract." Further, she
alleged they purposely acted to publicly "embarrass and defame" her.
Lyles also filed an administrative action before the Commissioner, which
named the Board and Thomas as defendants. Lyles alleged the Board, and
specifically Thomas, demonstrated "unlawful bias" and "unethical behavior"
against her. An ALJ later dismissed the administrative action as to Thomas.
Appellants were provided indemnification and counsel by the Board in the
respective actions. A global settlement of the federal lawsuit and the
administrative action was later reached. Appellants individually signed the
settlement agreement. Several days later, the Board, including Thomas and
Roman, voted to approve the settlement agreement.
Almost eight months later, Matthew Shapiro, a Board member, filed a
complaint with the SEC alleging that appellants violated the SEA by
"affirmatively vot[ing] to settle the lawsuit in which they were individually
named and at risk of damages." Specifically, Shapiro alleged that appellants
violated N.J.S.A. 18A:12-24(c) by voting in favor of the settlement, which
"served their own personal interests to get themselves out of that lawsuit (at no
personal penalty)." Shapiro also contended that appellants violated N.J.S.A.
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3
18A:12-24.1(e) by "signing the settlement documents as individual agents and
then voting on the settlement documents as board trustees," which amounted to
"private action with the potential to compromise the [B]oard."
Appellants moved to dismiss the complaint, which was denied by the SEC.
Appellants filed an answer to Shapiro's complaint followed by the SEC issuing
a notice: finding "probable cause to credit the allegations that [appellants]
violated N.J.S.A. 18A:12-24(c) and N.J.S.A. 18A:12-24.1(e)"; transferring the
matter to the Office of Administrative Law for a hearing; substituting the SEC
as the complainant for Shapiro; and providing the SEC's attorney, pursuant to
N.J.A.C. 6A:28-10.7(b)(1), would prosecute the matter. Thereafter, the matter
proceeded before an ALJ.
Following discovery, the SEC and appellants cross-moved for a summary
decision relying on a joint stipulation of facts. Paragraph eight of the stipulation
provided that the "Board voted to approve a written settlement agreement
settling both the federal court and administrative proceedings. . . . [Appellants]
were both present and voted in favor of approving the settlement." Paragraph
nine provided that, before voting on the settlement agreement, "[appellants]
consulted with the Board of Education's [g]eneral [c]ounsel . . . who explicitly
advised them that there was no ethical impediment to their voting on the matter
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or signing the settlement agreement." Before the ALJ, appellants argued they
did not commit an ethical violation because they only voted on the settlement
after the Board's counsel separately advised them that no conflict would prevent
them from voting.
In an initial decision, the ALJ partially granted appellants' motion for a
summary decision, finding no violation under N.J.S.A. 18A:12-24.1(e); and
partially granted the SEC's motion, finding appellants violated N.J.S.A. 18A:12-
24(c). The ALJ found that appellants did not violate N.J.S.A. 18A:12-24.1(e)
because "no conduct asserted suggest[ed] [appellants] made promises to anyone
concerning" the "voting upon or execut[ion] [of] the settlement agreement."
However, the ALJ found appellants violated N.J.S.A. 18A:12-24(c), reasoning
that although they "evidenced sensitivity to the issue of potential conflict in
seeking counsel's advice," and it was "reasonable to rely upon such advice," "a
public member could justifiably believe that their objectivity was impaired when
voting upon and executing the agreement." Further, the ALJ found that
appellants "acted in their official capacity in a matter where they had personal
involvement and received a benefit in violation of N.J.S.A. 18A:12-24(c)"
because "[u]nder the settlement agreement terms, Lyles agreed not to sue Roman
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or Thomas and release[d] them from all claims or actions she could bring against
them."
The ALJ considered the Board's counsel's certification that he did not
recall giving advice, but he would have intervened if he believed a conflict
existed. Further, if asked, he "likely would have told them that he saw no
problem because they were being completely indemnified by the school district,
as required by statute, and were not securing any personal benefit." He further
certified that, in his view, there were no ethical problems with their voting. The
ALJ recommended the penalty of a reprimand for appellants' violation of
N.J.S.A. 18A:12-24(c).
The SEC, substantially for the same reasons, adopted the ALJ's findings
that appellants violated N.J.S.A. 18A:12-24(c) but did not violate N.J.S.A. 12-
24.1(e). The SEC also adopted the ALJ's recommended penalty of a reprimand.
Appellants appealed the SEC's decision to the Commissioner of Education,
which the SEC opposed.
The Commissioner issued a final decision affirming the SEC's decision.
Given Lyles's claims that appellants "acted improperly, including by engaging
in a pattern of misconduct and harassment," the Commissioner found appellants'
"interest in resolving the claims [wa]s not one fully shared with the public."
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Additionally, the Commissioner found that the public could "justifiably believe"
appellants' "objectivity was impaired when voting to approve the settlement."
The "fact that [appellants] were financially indemnified for the costs of the
[actions] and settlement," the Commissioner found, was not "determinative"
because the "financial costs [we]re not the only benefit to settling [the actions]."
Finally, the Commissioner found the "lesser penalty" of a reprimand was
appropriate considering appellants settled the actions involving "the [B]oard as
a whole rather than . . . individual ethics charges" and because appellants had
relied on the advice of counsel.
Before us, appellants argue the Commissioner's decision erroneously:
expanded the meaning of N.J.S.A. 18A:12-24(c) to find appellants committed a
violation; committed de facto rulemaking under N.J.S.A. 18A:12-24(c); and
rejected appellants' advice of counsel defense.
New Jersey School Boards Association, appearing as amicus curiae,
supports appellants' position, arguing because "no greater benefit accrued to
these [B]oard members than that which could reasonably be expected to accrue
to other members of the board, no conflict and therefore no penalty should be
assessed." Amicus also posits the Commissioner's "portion of the decision
imposing a penalty on these board members" should be reversed.
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II.
"Judicial review of agency determinations is limited." Allstars Auto Grp.,
Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018). "An
administrative agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).
"Courts afford an agency 'great deference' in reviewing [the agency's]
'interpretation of statutes within its scope of authority.'" N.J. Ass'n of Sch.
Adm'rs v. Schundler, 211 N.J. 535, 549 (2012) (quoting N.J. Soc'y for the
Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385
(2008)). "Nonetheless, 'when an agency's decision is based on the "agency's
interpretation of a statute or its determination of a strictly legal issue," we are
not bound by the agency's interpretation.'" In re Ridgefield Park Bd. of Educ.,
244 N.J. 1, 17 (2020) (quoting Saccone v. Bd. of Trs., Police & Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014)).
To effectuate the Legislature's intent when interpreting a statute, a court
must first examine the plain language and ascribe to its words their ordinary
meaning. Conforti v. County of Ocean, 255 N.J. 142, 163 (2023). "Where
statutory language is clear, courts should give it effect unless it is evident that
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the Legislature did not intend such meaning." Bubis v. Kassin, 184 N.J. 612,
626 (2005) (quoting Rumson Ests., Inc. v. Mayor of Fair Haven, 177 N.J. 338,
354 (2003)). We "ascribe[] to the statutory words their ordinary meaning and
significance and read[] them in context with related provisions so as to give
sense to the legislation as a whole." W.S. v. Hildreth, 252 N.J. 506, 518 (2023)
(quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the language [of a
statute] is clear, the court's job is complete." In re DiGuglielmo, 252 N.J. 350,
360 (2022) (quoting In re Expungement Application of D.J.B., 216 N.J. 433,
440 (2014)). We review statutory interpretation de novo. In re Registrant H.D.,
241 N.J. 412, 418 (2020).
In enacting the SEA, "the Legislature declared its intention 'to ensure and
preserve public confidence' in local school board members by providing local
board members with advance guidance on ethical conduct so that such members
might conduct their personal affairs appropriately and within the bounds
ethically expected." Bd. of Educ. of Sea Isle City v. Kennedy, 196 N.J. 1, 16
(2008) (citation omitted) (first quoting N.J.S.A. 18A:12-22; and then citing
N.J.S.A.18A:12-24(j)). N.J.S.A. 18A:12-24(j) states, "Nothing shall prohibit
any school official, or members of his immediate family, from representing
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himself, or themselves, in negotiations or proceedings concerning his, or their,
own interests." N.J.S.A. 18A:12-24(c) states:
No school official shall act in his official capacity
in any matter where he, a member of his immediate
family, or a business organization in which he has an
interest, has a direct or indirect financial involvement
that might reasonably be expected to impair his
objectivity or independence of judgment. No school
official shall act in his official capacity in any matter
where he or a member of his immediate family has a
personal involvement that is or creates some benefit to
the school official or member of his immediate family.
Our Supreme Court has held that, under the common law, "[a] public
official is disqualified from participating in judicial or quasi-judicial
proceedings in which the official has a conflicting interest that may interfere
with the impartial performance of his duties as a member of the public body."
Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993) (alteration in original) (quoting
Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super. 566, 568
(App. Div. 1991)). A determination of "[w]hether a particular interest is sufficient
to disqualify is necessarily a factual one and depends on the circumstances of the
particular case." Paruszewski v. Township of Elsinboro, 154 N.J. 45, 58 (1998)
(quoting Wyzykowski, 132 N.J. at 523). "The question is whether there is a potential
for conflict, not whether the conflicting interest actually influenced the action."
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Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501, 513
(App. Div. 2006) (citing Wyzykowski, 132 N.J. at 523).
II.
The plain language of N.J.S.A. 18A:12-24(c) prohibits a board member
from "act[ing] in his official capacity in any matter where he . . . has an interest,
has a direct or indirect financial involvement that might reasonably be expected
to impair his objectivity or independence of judgment" and from "act[ing] in his
official capacity in any matter where he . . . has a personal involvement that is
or creates some benefit to the school official." Ibid. The legislative intent is
clear that board members shall not participate in a matter where they have an
interest that may interfere with their impartial performance. We therefore
concur with the Commissioner that appellants had a statutory conflict of interest
under N.J.S.A. 18A:12-24(c) as defendants in Lyles's complaint, which alleged
their explicit unethical and harassing misconduct. Thus, their voting on the
settlement agreement was prohibited. As the Commissioner found, Lyles's
complaint asserted claims against appellants for "personally" and "separately"
acting "improperly" outside of their membership on the Board. The
Commissioner's finding that appellants' "interest[s] . . . [were] not . . . fully
shared with the public" was supported by the "substantial credible evidence."
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Appellants' arguments that they had no interest in the outcome of the
actions because they were fully indemnified, had appointed counsel, and were
only sued "for dramatic effect" are unpersuasive. Appellants derived a benefit
from settling the actions which released them from all claims and terminated
their personal involvement. We discern no reason to disturb the Commissioner's
finding that under the plain language of N.J.S.A. 18A:12-24(c), appellants acted
in their official capacities on a matter where they had "a personal involvement
that . . . create[d] some benefit."
Further, we decline to address appellants' argument, raised for the first
time on appeal, that the Commissioner's determination on N.J.S.A. 18A:12-
24(c) "expanded the meaning and interpretation" of the provision "in a manner
that constitute[d] rulemaking and [wa]s thus noncompliant with the APA." See
Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (recognizing claims that are not
presented to a trial court are inappropriate for consideration on appeal).
We, however, part ways with the Commissioner's issuance of a reprimand.
We have previously considered four prerequisite factors to an advice of counsel
defense regarding an agency's decision on an ethical violation. See In re Zisa,
385 N.J. Super. 188, 198-99 (App. Div. 2006). They are: (1) "[t]hat the approval
or advice was received prior to the action being taken"; (2) "[t]hat the individual
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who offered the advice or approval relied upon possessed authority or
responsibility with regard to ethical issues"; (3) "[t]hat the individual seeking
advice or approval made a full disclosure of all pertinent facts and
circumstances"; and (4) "[t]hat the individual compl[ied] with the advice
received, including any restrictions it might contain." Ibid. (citations omitted).
Appellants squarely demonstrated all four prerequisites to avail of an
advice of counsel defense. It was stipulated that appellants each sought the
advice of the Board's counsel, who had the authority to provide advice, before
voting to approve the settlement. Appellants certified that they separately
consulted the Board's counsel about the propriety of voting on the settlement of
the actions in which they were named defendants. Thomas recalled discussing
with counsel whether he would have to sign the settlement agreement as Board
President and if that "pose[d] a[] conflict." Notably, the SEC stipulated that
counsel "explicitly advised them that there was no ethical impediment to their
voting on the matter or signing the settlement agreement." Appellants were
advised by informed counsel that there was no ethical barrier to their voting and
relied on that advice in approving the settlement, satisfying all four
prerequisites.
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Under N.J.S.A. 18A:12-29(f), the SEC "shall be authorized to determine
and impose the appropriate sanction including reprimand, censure, suspension[,]
or removal of the school official found to have violated [the SEA]." The plain
language of the provision does not foreclose the Commissioner from assessing
no penalty, as an "appropriate sanction includ[es]" but does not require the
penalty of "reprimand." See ibid. We note the Commissioner failed to
separately consider the four prerequisites elucidated in Zisa in "concur[ring]
with the ALJ and the SEC" regarding the penalty and finding the penalty
commensurate with appellants' reliance on counsel's advice. The application of
the advice of counsel defense requires a fact-sensitive analysis to determine if
the four prerequisites to an advice of counsel defense were met. Here, appellants
met all the conditions to warrant the defense of advice of counsel. See Zisa, 385
N.J. Super. at 199. Thus, we reverse the imposition of the penalty of a reprimand
and direct the Commissioner to vacate the penalty.
To the extent not addressed, appellants' remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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