The opinion
NOT FOR PUBLICATION WITHOUT THE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-3422-22
MICHAEL SPILLE,
Complainant-Appellant,
v.
KEVIN KOVELOSKI, MARTHA
DENNIS, DIANA PURSELL,
FILOMENIA HENGST, JIM
GALLAGHER, RONI
TODD-MARINO, LAUREN
BRAUN-STRUMFELS, TRACI
PACIULLI, MEAGAN
WARNER, SOUTH HUNTERDON
REGIONAL BOARD OF
EDUCATION, and
HUNTERDON COUNTY,
Respondents-Respondents.
_____________________________
NEW JERSEY DEPARTMENT
OF EDUCATION, SCHOOL
ETHICS COMMISSION,
Respondent.
_____________________________
Argued February 4, 2025 – Decided March 7, 2025
Before Judges Smith and Chase.
On appeal from the New Jersey Department of
Education.
Matthew C. Moench argued the cause for appellant
(King, Moench & Collins, LLP, attorneys; Michael
Spille, on the briefs).
Kerri A. Wright argued the cause for respondents
(Porzio, Bromberg & Newman, PC, attorneys; Kerri A.
Wright, of counsel and on the brief; Thomas J. Reilly,
on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent School Ethics Commission (Sadia
Ahsanuddin, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
Complainant, Michael Spille, appeals the School Ethics Commission's
("SEC") final agency decision dismissing his amended ethics complaint against
the South Hunterdon Regional Board of Education ("Board") and its members:
Kevin Koveloski (President), Filomena Hengst (Vice President), Lauren Braun-
Strumfels, Martha Dennis, Jim Gallagher, Traci Paciulli, Diana Pursell, Roni
Todd-Marino, and Megan Warner. According to Spille's complaint, respondents
violated multiple provisions of the School Ethics Act, N.J.S.A. 18A:12-21 to -
34 ("Act"), during the process to pass a referendum for the renovation of two
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schools within the South Hunterdon Regional School District ("District"). We
affirm.
I.
The Board oversees schools in Lambertville, Stockton, and West Amwell.
The District planned to improve two elementary schools: Lambertville Public
School ("LPS") and West Amwell School ("WAS"). In April 2021, the Board
voted unanimously to place a referendum on the November 2021 ballot seeking
public approval to sell a $33 million bond to implement the renovations.
In August 2021, the Board published general information about the
referendum and proposed renovations to the two schools. The information
discussed how the renovations would lead to increased property values
throughout the District and mentioned that "LPS repairs . . . are long overdue
while WAS has structural issues and site challenges."
The Board also released a "Referendum FAQ," which among other things,
discussed the potential impact on property values. The Board also produced a
video featuring Board President Koveloski discussing the possible consequences
of a failed referendum. That same month, the superintendent announced twenty-
four general information sessions for the public to learn more. The Board
released a second video on September 21, 2021, in which Koveloski discussed
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the impacts of area flooding on one of the schools. Koveloski concluded the
video with a message stating, "Please remember to vote on November 2nd. The
future of students depends on it."
On October 6, 2021, Koveloski and Gallagher appeared before the West
Amwell Township Committee as members of the Board and asked the Township
Committee to stay neutral when considering the referendum. That month, lawn
signs with the message "Vote Yes" also began appearing throughout the
community. While the Board did not create, authorize, or place the signs, the
signs used the District's color scheme, crest, and displayed the District's official
website address.
Soon after, Koveloski posted to the Lambertville and West Amwell
Facebook pages supporting the referendum. He further explained that he was
making the post as a "tax paying resident of West Amwell [T]ownship."
Koveloski did not include a disclaimer stating that he was not speaking as a
member of the Board. The posts included a link to the District's website, which
appeared with a picture of the District's crest. Additionally, Koveloski wrote,
"Please do not let the so-called social media experts persuade you in any way
with their negativity, false statements, and bad information."
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In October, the Board also released a monthly newsletter with information
about the referendum, links to the videos, and a reminder to vote on November
2nd. The newsletter stated that LPS repairs were long overdue and that WAS
presented structural and site challenges. During the same month, Gallagher
made a series of Facebook posts regarding the referendum. One post purported
to answer several questions about the referendum. Gallagher's posts made clear
that he was speaking as a member of the public, not as a Board member. Board
member Pursell also posted on the West Amwell Facebook site advocating for
the referendum. Although Pursell disclaimed her Board membership, she
included her District email address on the post.
Before the election, the Board released to the public a third video detailing
a former student's experience navigating LPS as a disabled individual. The
video highlighted various parts of the school that are out of ADA compliance.
The video also included a message stating "Please Vote on November 2nd." The
Board also sent out postcards to all residents within the District containing
financial information related to the referendum, while also including another
reminder to vote.
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During the time the referendum was pending, defendant board members
Braun-Strumfels, Todd-Marino, Warner, and Hengst also actively served on the
committee for a grassroots organization formed in 2017 known as "SaveLPS."
On November 2, the District voters approved the referendum by two votes
out of a total of 3,544 votes. A subsequent recount did not change the outcome.
Complainant filed an initial complaint with the SEC, alleging members of
the Board collectively and individually violated the Act. Complainant asserted
the materials set forth by the Board were highly biased and intended to influence
the electorate to vote "yes" on the referendum. After curing technical defects in
his initial complaint, he filed an amended complaint.
Complainant's amended complaint centered on three specific subsections
of the Code of Ethics for School Board Members ("Code"): N.J.S.A. 18A:12-
24.1(e) ("subsection (e)"), forbidding board members from "mak[ing] personal
promises or tak[ing] private actions that may compromise the board"; N.J.S.A.
18A:12-24.1(f) ("subsection (f)"), requiring board members not to "surrender
their independent judgment to special interest or partisan political groups"; and
N.J.S.A. 18A:12-24.1(g) ("subsection (g)"), requiring board members to hold
certain matters confidential and to refrain from providing inaccurate information
to the public.
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Complainant alleged that respondents Gallagher, Koveloski, Hengst,
Braun-Strumfels, Warner, Todd-Marino, and Pursell violated subsection (e);
that defendants Hengst, Braun-Strumfels, Todd-Marino, and Warner violated
subsection (f); and that the Board, Koveloski, Gallagher, Hengst, Braun-
Strumfels, Warner, and Todd-Marino violated subsection (g) . In lieu of filing
an answer, all respondents moved to dismiss. Complainant opposed and sought
leave to amend the complaint to include new violations. In a written decision,
the SEC denied complainant's motion to amend and dismissed the complaint.
Even assuming the factual allegations in the complaint were true, the SEC
found complainant failed to plead sufficient credible facts to support a finding
that respondents violated the Code. Regarding violations of subsection (e) the
SEC found, complainant "failed to provide sufficient factual evidence that the
named respondents made personal promises or took action beyond the scope of
their duties such that, by its nature, had the potential to compromise the Board."
Likewise, the SEC found the allegations would not support a finding that
respondents Hengst, Braun-Strumfels, Warner, and Todd-Marino violated
subsection (f). The SEC further explained it "is only when their vote inures a
unique and specific benefit to them, to the exclusion of all others, that a violation
may be viable."
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As to the alleged violations of subsection (g), the SEC stated:
In Counts 1-8, Count 12, Counts 14-15, and Count 18,
Appellant submits that [respondents] violated N.J.S.A.
18A:12-24.1(g). At its core, the Counts contend that
"the Board" acted unethically because it did not provide
accurate information, and/or presented biased or
incomplete information to the public regarding the
referendum. In its review, the Commission finds that
[Appellant] has not articulated exactly how any of the
named Respondents may have specifically violated the
confidentiality provision of N.J.S.A. 18A:12-24.1(g).
Instead, Appellant offers nothing more than general and
vague conclusory statements about what the "Board"
may have done, but does not offer any detailed facts
evidencing how the named Respondents may have
engaged in unethical conduct. Because such
generalized accusations are wholly insufficient to
satisfy Appellant's burden of proof, the Commission
finds that the alleged violations of N.J.S.A. 18A:12-
24.1(g) in Counts 1-8, Count 12, Counts 14-15, and
Count 18 should be dismissed.
The SEC found appellant's subsection (g) allegations against individual
respondents violating subsection (g) were "equally unsupported by specific
evidence of unethical behavior."
On appeal, complainant contends: the SEC erred in denying leave to
amend his complaint; a SEC advisory opinion and its own precedents support a
conclusion that the Code was violated; and the SEC failed to review the
allegations in the light most favorable to him, and the SEC's determination
ignores the statutory purpose of the Act.
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II.
A.
Our scope of appellate review with respect to a final agency decision is
limited. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16
(2006). We are not bound by an agency's interpretation of a statute. In re State
Bd. of Educ.'s Denial of Petition to Adopt, 422 N.J. Super. 521, 530 (App. Div.
2011). Our review of legal questions is de novo. Ibid. However, "Appellate
courts must defer to an agency's expertise and superior knowledge of a particular
field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
Moreover, "a court may not substitute its own judgment for the agency's even
though the court might have reached a different result." Ibid.
It is well settled that an agency decision will be upheld on appeal unless
it is shown to be "arbitrary, capricious[,] or unreasonable, or that it lacked fair
support in the evidence . . . ." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562
(1963). "The burden of demonstrating that the agency's action was arbitrary,
capricious[,] or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.),
certif. denied, 188 N.J. 219 (2006).
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B.
Prior to its repeal, N.J.A.C. 6A:28-8.31 provided that "[i]n determining whether
to grant a motion to dismiss, the SEC shall review the facts in the light most
favorable to the Complainant and determine whether the allegation(s), if true,
could establish a violation of the Act." The language mirrors the standard for
dismissal of a complaint pursuant to Rule 4:6-2(e). Thus, as in a Rule 4:6-2(e)
motion, the SEC is required to "'search[] the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being given to ame nd if
necessary.'" AC Ocean Walk, LLC v. Am. Guarantee & Liab. Ins. Co., 256 N.J.
294, 311 (2024) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116
1
N.J.A.C. 6A:28-8.3 was repealed on March 6, 2023. See N.J.A.C. 6A:28-8.3
(Feb. 2023) (repealed Mar. 2023). However, complainant filed his complaint,
and respondents filed their motion to dismiss, prior to the regulations repeal.
"'Generally, a regulation only applies prospectively. A regulation may apply
retroactively if the Legislature or agency has expressed that intent, either
explicitly or impliedly, and retroactive application would not cause a manifest
injustice or an interference with a vested right.'" L.R. ex rel J.R. v. Cherry Hill
Bd. of Educ., 473 N.J. Super. 568, 579 (App. Div. 2022) (citations omitted)
(quoting Rahway Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J.
Super. 101, 112 (App. Div. 2005)). We decline to impute retroactive intent to
the repeal of N.J.A.C. 6A:28-8.3.
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N.J. 739, 746 (1989)) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43
N.J. Super. 244, 252 (App. Div. 1957)).
We note the Legislature has declared that school board members and
administrators must conduct themselves so as to "avoid conduct which is in
violation of their public trust or which creates a justifiable impression among
the public that such trust is being violated." N.J.S.A. 18A:12-22(a). To that
end, the Legislature has also declared that public confidence in school members
is preserved through "specific standards to guide their conduct . . . ." N.J.S.A.
18A:12-22(b). Our analysis is informed by these principles.
III.
We affirm the dismissal of appellant's amended complaint, substantially
for the reasons expressed by the SEC in its cogent written opinion. We add the
following brief comments.
First, complainant argues the SEC improperly denied his request for leave
to amend the complaint to include the findings from an Open Public Records
Act ("OPRA") request. He further contends the denial was due to the SEC's
failure to utilize the "liberality and generosity" test, and the denial prevented the
surfacing of new inculpatory evidence against respondents.
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The process for filing an original complaint is detailed at N.J.A.C. 6A:28-
6.2, which permits either the filing of an original hard copy complaint and
exhibits with the SEC and additional copies for each named respondent or
electronic filing with the SEC and hard copies mailed to each named respondent.
Pursuant to N.J.A.C. 6A:28-6.7(b), "[a] [complainant] may amend a complaint
to cure technical defects or to clarify or amplify allegations made in the original
complaint." N.J.A.C. 6A:28-6.2(a)(1) to (2). And, N.J.A.C. 6A:28-6.7(c) states,
"[o]nce a written statement is filed, an amendment to a complaint may be made
by the appellant only with the consent of each respondent or by leave of the
[SEC] upon written application." Further, "[a]ny amendment made by the
[complainant] . . . shall be submitted in the same manner as the original
complaint with one copy, together with a copy for each respondent." N.J.A.C.
6A:28-6.7(d).
While N.J.A.C. 6A:28-6.7(d) governs how the amended complaint, once
approved, should be submitted to the SEC and respondents, it does not dictate
the manner in which leave to amend is requested. That said, complainant
submitted his request for amendment properly and in accordance with N.J.A.C.
6A:28-6.7(c).
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However, complainant's amendment motion sought to add new claims.
N.J.A.C. 6A:28-6.7(b) does not permit the addition of new claims, only the
clarification or amplification of claims which were part of the original
complaint. Complainant admitted that he wanted to add new claims related to
documents he obtained pursuant to OPRA.2 Since he sought to add allegations
to his complaint based on documents, he received in response to his OPRA
request, the SEC's denial of leave to amend the complaint was proper.
To the extent we have not specifically addressed any other contentions
raised by respondents, they lack sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
2
Complainant has not provided a copy of his amended complaint demonstrating
how the information he received in response to his OPRA request would support
his existing claims. At oral argument he conceded he could have filed a new
complaint with the information he received.
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