The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0366-23
RONALD DONNERSTAG,
KRISTIN LANKO, LISA
SNIDER, WENDY VACANTE,
MATTHEW DELPRETE, APPROVED FOR PUBLICATION
PATRICIA FORTUS, JAIME April 3, 2025
CESTARE, SCOTT ALFANO, APPELLATE DIVISION
and LYNNE SWEEZO,
Complainants-Appellants,
v.
HEATHER KOENIG, CENTRAL
REGIONAL BOARD OF
EDUCATION, OCEAN COUNTY,
Respondent-Respondent.
_______________________________
Argued October 29, 2024 – Decided April 3, 2025
Before Judges Sumners, Perez-Friscia and Bergman.
On appeal from the School Ethics Commission, New
Jersey Department of Education, Docket No. C19-22.
Daniel R. Dowdy argued the cause for appellants
(Selikoff & Cohen, PA, attorneys; Daniel R. Dowdy, of
counsel and on the briefs; Steven R. Cohen, on the
briefs).
Paul E. Kiel argued the cause for respondents (Gold,
Albanese & Barletti, LLC, attorneys; James N. Barletti,
of counsel and on the brief; Paul E. Kiel, 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).
The opinion of the court was delivered by
SUMNERS, JR., C.J.A.D.
Appellants, Central Regional Board of Education (Board) members
Ronald Donnerstag, Kristin Lanko, Lisa Snider, Wendy Vacante, Matthew
Delprete, Patricia Fortus, Jaime Cestare, Scott Alfano, and Lynne Sweezo,
appeal the School Ethics Commission's final agency decision dismissing their
five-count complaint under the School Ethics Act (Act), N.J.S.A. 18A:12-21 to
-34, seeking disciplinary action against fellow Board member, respondent
Heather Koenig. The allegations targeted Koenig's posts and reposts uploaded
on her public social media account while she was a Board member-elect and
Board member, and her violation of Governor Philip Murphy's Executive Order
251 by not wearing a facemask at a public board meeting while a sitting Board
member.
We affirm the Commission's dismissal of counts two and five, wherein it
granted Koenig's motion to dismiss. As to count three, which the Commission
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also dismissed on Koenig's motion, we reverse and remand to the Commission
to determine its merits. We leave it to the Commission to determine if a fact-
finding hearing before an ALJ is needed to resolve the count's allegation, or if
it can be resolved through a summary decision.
We affirm the Commission's summary dismissal of count four. As to the
Commission's dismissal of count one, we reverse and remand to the Commission
to determine Koenig's penalty. The penalty, however, shall not be imposed until
the Commission makes a final agency decision regarding count three.
I.
A. School Ethics Complaint
On November 2, 2021, Koenig was elected as a Board member. She used
her public social media account to campaign for her election and continued to
post and repost to it after she was sworn-in as a Board member on January 7,
2022.
On March 2, 2022, appellants filed a five-count school ethics complaint
with the Commission against Koenig alleging:
Count One – In violation of N.J.S.A. 18A:12-24.1(e),
Koenig compromised the Board by making a social
media post on January 12, 2022, without disclaiming
that the post was made in her personal capacity rather
than as a Board member, which "explicitly urged Board
employees to drop their membership with [Central
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Regional Education Association] (CREA) and [New
Jersey Education Association] (NJEA) (collectively,
the unions)" which violated the union membership
withdrawal procedures per the Workplace Democracy
Enhancement Act, N.J.S.A. 34:13A-5.11 to -5.15. On
March 7, the Board adopted a resolution renouncing
"any statements posted or attributed by any individual
that is contrary to the . . . WDEA." 1 On April 21, the
unions filed "an unfair practice charge against the
Board alleging the Board violated WDEA, specifically
citing [Koenig's] January 12 post urging teachers to opt
out of the NJEA."
Count Two – In violation of N.J.S.A. 18A:12-24.1(a)
and N.J.S.A. 18A:12-24.1(e), Koenig compromised the
Board and appeared to be speaking for the Board when
on January 7, 2022, she posted pictures being sworn in
as a Board member with her family by her side, not
wearing face masks in violation of Executive Order
251.
Count Three – In violation of N.J.S.A. 18A:12-24.1(a)
and N.J.S.A. 18A:12-24.1(e), Koenig failed to wear a
face mask at a board meeting on January 20, 2022,
which violated her ethical obligations to "uphold and
enforce all laws, rules and regulations of the State
Board of Education, and court orders pertaining to
schools."
Count Four – In violation of N.J.S.A. 18A:12-24.1(a)
and N.J.S.A. 18A:12-24.1(e), on January 10, 2022,
Koenig posted on her social media account her demand
1
The Workplace Democracy Enhancement Act, N.J.S.A. 34:13A-5.11 to -5.15
sets forth union membership withdrawal procedures.
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that Governor Murphy not extend Executive Order 251
and called him a "Tyrannical POS." 2
Count Five – In violation of N.J.S.A. 18A:12-24.1(e),
Koenig made a "'racist post' on her public [account] [on
December 5, 2021,] . . . [that] 'could reasonably be seen
as compromising the Board and as speaking for the
Board by a member of the public.'"
B. School Ethics Commission's Dismissal of Three Counts of
Appellant's Complaint
On July 26, 2022, the Commission, construing "the facts in the light most
favorable to the non-moving party [(appellants)], and determin[ing] whether the
allegation(s), if true, could establish a violation(s) of the Act" per N.J.A.C.
6A:28-8.3, granted in part and denied in part Koenig's motion to dismiss in lieu
of an answer. The Commission dismissed counts two, three, and five, but
declined to dismiss counts one and four. 3
After Koenig responded to counts one and four, the matter was transmitted
to the Office of Administrative Law for a contested hearing. Appellants later
moved for summary decision. Koenig did not cross-move for relief. The ALJ
2
POS is a slang term meaning "piece of shit." Dictionary.com,
http://www.dictionary.com/browse/pos (last visited Mar. 10, 2025).
3
Appellants sought interlocutory review of the Commission's decision before
the Commissioner of Education. Koenig cross-moved for interlocutory review
of the decision sustaining counts two and four. The Commissioner of Education
declined review.
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granted the motion, issuing an initial decision specifically finding that in counts
one and four Koenig violated N.J.S.A. 18A:12-24.1(e). The ALJ determined
Koenig should be censured because it would "send[] a message to both [her] and
other Board members, that using social media as a platform, should not and
cannot come at the expense of each Board's members affirmative obligations
under the [Act] for Board members."
On August 22, 2023, the Commission issued its final agency decision
rejecting the ALJ's initial decision. Thus, appellants' entire complaint was
dismissed resulting in this appeal.
II.
The Commission is charged with resolving complaints of unethical
conduct filed against school board members. N.J.S.A. 18A:12-29. Upon the
filing of a complaint against a member of a local school board, the Commission
"shall determine whether the conduct complained of constitutes a violation of
th[e A]ct, or in the case of a board member, th[e A]ct or the code of ethics, or
whether the complaint should be dismissed." N.J.S.A. 18A:12-29(9)(c). The
Commission is authorized to dismiss a complaint, "or specific allegations in [a]
complaint[]," based on a "[l]ack of jurisdiction," N.J.A.C. 6A:28-9.2(a)(1), or
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when "[t]he complaint, on its face, fails to state a claim under the Act," N.J.A.C.
6A:28-9.2(a)(7).
The Commission decides a motion for summary decision under N.J.A.C.
1:1-12.5(b), applying "substantially the same" standard a trial court employs in
considering a Rule 4:46-2 summary judgment motion. Contini v. Bd. of Educ.
of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995). Like the trial court, an
agency's findings of fact "are considered binding on appeal when supported by
adequate, substantial and credible evidence." Sager v. O.A. Peterson Constr.,
Co., 182 N.J. 156, 164 (2004) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co.
of Am., 65 N.J. 474, 484 (1974)). Summary decision is appropriate "where the
undisputed material facts . . . indicate that a particular disposition is required as
a matter of law." In re Robros Recycling Corp., 226 N.J. Super. 343, 350 (App.
Div. 1988). Yet, we owe no deference to the trial court's conclusions of law.
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citations
omitted). In contrast, we "strive to give substantial deference to the
interpretation [the] agency gives to a statute that the agency is charged with
enforcing." In re Virtua-W. Jersey Hosp. Voorhees for a Certificate of Need,
194 N.J. 413, 423 (2008) (alteration in original) (internal quotation marks and
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citations omitted). We review the grant of summary decision de novo. N.J. Div.
of Tax'n v. Selective Ins. Co. of Am., 399 N.J. Super. 315, 322 (App. Div. 2008).
"[W]e will not upset a State agency's determination in the absence of a
showing that it was arbitrary, capricious or unreasonable, or that it lacked fair
support in the evidence, or that it violated a legislative policy expressed or
implicit in the governing statute." In re Camden Cnty. Prosecutor, 394 N.J.
Super. 15, 22-23 (App. Div. 2007) (emphasis omitted) (quoting Cnty. of
Gloucester, Bd. of Chosen Freeholders v. Pub. Emp. Rels. Comm'n, 107 N.J.
Super. 150, 156 (App. Div. 1969) aff'd, 55 N.J. 333 (1970)). "The burden of
demonstrating that the agency's action was arbitrary, capricious or unreasonable
rests upon the [party] challenging the administrative action." In re Adoption of
Amends. to Northeast, Upper Rariten, Sussex Cnty., 435 N.J. Super. 571, 582
(App. Div. 2014) (alteration in original) (quoting In re Arenas, 385 N.J. Super.
440, 443-44 (App. Div. 2006)). Arbitrary and capricious action means that an
agency engaged in "willful and unreasoning action, without consideration and
in disregard of the circumstances." Northgate Condo. Ass'n v. Borough of
Hillsdale Plan. Bd., 214 N.J. 120, 145 (2013) (quoting Worthington v. Fauver,
88 N.J. 183, 204 (1982)).
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Guided by these principles, we address appellants' contentions regarding
the dismissal of their complaint through a motion to dismiss and summary
decision.
III.
Motion To Dismiss
In its July 26, 2022 agency decision, the Commission ruled that Koenig's
social media posts––as alleged in counts two, three, and five––did not violate
N.J.S.A. 18A:12-24.1(e) and dismissed them. We separately address the
dismissal of each count.
A. Count Two
In count two, appellants allege Koenig's social media post of her Board
swearing-in picture without wearing a mask violated Executive Order 251 and,
in turn, N.J.S.A. 18A:12-24.1(a) and N.J.S.A. 18A:12-24.1(e), by compromising
the Board for appearing to speak on behalf of it when she broke the law.
The Commission determined that, accepting appellants' allegations as
true,
there are absolutely no facts from which the
Commission could possibly conclude that the taking of
a family photograph, even without a mask, exceeded
the scope of [Koenig's] duties and responsibilities as a
Board member and/or had the potential to compromise
the Board.
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Before us, appellants contend Koenig's violation of Executive Order 251,
refusing to wear a mask in the school facility, was her conscious decision to
break the law. They claim "[Koenig] was asked to wear a mask . . . and refused
. . . stat[ing] 'I'm not wearing a mask.'" They assert Koenig's action
compromised the Board by showing that Board members disregard the law.
We agree with the Commission's dismissal of count two. The alleged
violation of N.J.S.A. 18A:12-24.1(a) was correctly dismissed on procedural
grounds. To sustain a violation of N.J.S.A. 18A:12-24.1(a), a complainant
"shall include a copy of a final decision from any court of law or administrative
agency of this State demonstrating that the respondent(s) failed to enforce all
laws, rules, and regulations of the State Board of Education, and/or court
orders." N.J.A.C. 6A:28-6.4(a)(1). Because there is no indication in the record
that an administrative agency or court issued an order that appellants complied
with N.J.A.C. 6A:28-6.4(a)(1), appellants failed to establish a violation of
N.J.S.A. 18A:12-24.1(a).
While there is no dispute that Executive Order 251 is a valid exercise of
the Governor's authority, executive orders are not specifically included in
N.J.A.C. 6A:28-6.4(a)(1), which states "laws, rules, and regulations of the State
Board of Education, and/or court orders," and we do not have the authority to
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amend the regulation to include executive orders. See, e.g., Marino v. Marino,
200 N.J. 315, 329 (2009) (alteration in original) (citing O'Connell v. State, 171
N.J. 484, 488 (2002)) ("We will not 'rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something other than that
expressed by way of the plain language.'"). Since there is no final court or
administrative agency order that Koenig violated Executive Order 251, count
two's allegation that she violated N.J.S.A. 18A:12-24.1(a) was properly
dismissed.
As to the alleged violation of N.J.S.A. 18A:12-24.1(e), it was correctly
dismissed on its merits. The statute provides that school board members
"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."
N.J.S.A. 18A:12-24.1(e). Appellants failed to establish by specific evidence
that Koenig's decision to not wear a mask at her swearing-in indicated she was
acting on behalf of the Board or compromised the Board. The Commission
reasonably found that a mere photograph of an unmasked Koenig without
more—even in a school facility—does not rise to the level of factual evidence
needed to sustain count two. The Commission's ruling was not arbitrary,
capricious, or unreasonable.
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B. Count Three
In count three, appellants allege Koenig violated N.J.S.A. 18A:12-24.1(e)
by not wearing a face mask at a Board meeting on January 20, 2022, as required
by Executive Order 251. Specifically, they assert Koenig's defiance of the mask
mandate encouraged others to follow suit which compromised the Board as her
action was perceived to have been speaking for Board.
The statute provides that school board members "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." N.J.S.A. 18A:12-24.1(e).
The Commission dismissed count three, reasoning:
[Appellants] have not provided any facts indicating
how [Koenig's] personal decision for which she, and
she alone, could face consequences, related to her
duties as a Board member or could have impacted the
Board. There is no suggestion that [Koenig]
encouraged other members of the Board, members of
the public, teaching staff members (if they were
present), or students (if they were present) to defy the
Executive Order.
Unlike the dismissal of count two, we disagree and reverse.
Viewing the facts in the light most favorable to appellants, there are
sufficient facts in the record to support appellants' assertion in count three. As
appellants contend, prior to the January 22 Board meeting, Koenig made several
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posts on her social media account publicly showing her disdain for the mask
mandate in public buildings: (1) December 9, 2021 –– reposting
"unmasknjschools.com" statement, "Murphy's pandemic response on children
. . . needs to end now!"; (2) January 9, 2022 –– equating pandemic safety
measures to domestic violence; and (3) January 10 –– calling Governor Murphy
a "Tyrannical POS" for issuing the mask mandate and demanding that parents
"remember your rights and start to stand for them and your children."
Appellants also stress that Koenig's contempt of the Executive Order is evident
by appellant Kristin Lanko's certification that Koenig stated at the Board
meeting, "I'm not wearing a mask," as well as Koenig's discovery responses that
she refused to wear a mask "because [she] believe[s] Executive Order 251
violates [her] freedoms as an American citizen."
Accordingly, the Commission should not have granted Koenig's motion to
dismiss count three as her unmasked presence at a public Board meeting in
defiance of Executive Order 251 could be a violation of N.J.S.A. 18A:12-24.1(e)
may have compromised the Board by encouraging others to not wear masks. Its
decision was arbitrary, capricious, and unreasonable. We reverse and remand
to the Commission to determine the merits of count three. We leave it to the
Commission to determine if a fact-finding hearing before an ALJ is needed to
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resolve the count's allegation, or if it can be resolved through a summary
decision.
C. Count Five
In count five, appellants allege Koenig violated N.J.S.A. 18A:12-24.1(e)
by making a December 5, 2021 racist post on her social media account despite
not being sworn in as a Board member. The Commission dismissed the count,
finding it "does not have jurisdiction to regulate or sanction the conduct of a
school official that occurred before he or she was subject to the requirements of
the Act."
Appellants argue the Commission improperly refused to address the
substance of their arguments by finding it lacked jurisdiction. Appellants stress,
"the Commission directly contradicted an [a]dvisory [o]pinion it publicly issued
. . . which clearly stated that it has jurisdiction over newly elected school board
members who have not yet been seated." The opinion states in relevant part:
Similar to all other newly elected, as well as currently
seated, Board members, this Board member is bound by
and charged with understanding and complying with
the ethical standards set forth in the Act.
[Advisory Op. A36-17, at 2 (Sch. Ethics Comm'n Jan.
3, 2018).]
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Appellants contend they were denied due process when the Commission
refused to address their allegations. As to count five's merits, appellants
emphasize the post remained on Koenig's account when she was sworn in and
stayed there until the Board passed a resolution on March 17, 2022, condemning
the post and demanding it be removed due to "community outrage." Appellants
contend this demonstrates that Koenig's post compromised the Board in
violation of N.J.S.A. 18A:12-24.1(e) and reason Koenig's motion to dismiss
count five should not have been granted because the Commission's decision
lacked credible evidence in the record.
We discern no error in the Commission's ruling that it lacked jurisdiction
to address count five because its allegations arose before Koenig was a Board
member. Koenig correctly cites Donnerstag v. Borawski, Docket No. C20-22,
at 8-9, wherein the Commission clarified its Advisory Opinion A36-17, finding:
To the extent that Complainants believe that language
from Advisory Opinion A36-17 (A36-17), specifically,
"[s]imilar to all other newly elected, as well as currently
seated, Board members," stands for the proposition that
school officials are bound by the standards enumerated
in the Act prior to the start of their term, such reliance
is misplaced. The language in A36-17 was written to
ensure that all new Board members understand that,
once their term begins, they, like their currently seated
colleagues, are immediately bound by the provisions of
the Act. Moreover, A36-17 details the Commission's
advice regarding the subject school official's
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prospective behavior and did not in any way suggest
that the Commission had the authority to find a
violation of the Act and/or recommend a sanction for
conduct that occurred prior to the start of a school
official's term.
[(Emphasis added).]
Therefore, the Commission clarified its Advisory Opinion by ruling it does not
have jurisdiction under the Act for a school board member's conduct arising
before the board member's swearing-in.
We also conclude appellants' due process rights were not violated. As
reflected in the Commission's decision, Koenig argued before it that the
allegations in count five "did not form the basis of a [c]omplaint" because she
was not sworn in as a Board member when the post was made. And as Koenig
points out, appellants opposed her lack of jurisdiction argument before the
Commission. Moreover, the inquiry in Advisory Opinion A36-17 was "whether
there are any ethical prohibitions on this Board member's activities given that
he is currently enrolled in the District as a student." Advisory Op. A36-17, at 1.
The Commission determined "there is no basis to presume that this Board
member's status as a Board member is somehow diminished, or limited, because
he is a student." Id. at 2. Thus, the Board member was permitted to vote on
matters involving personnel, collective bargaining, labor grievances, school
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related activities, and student activities. Ibid. The Advisory Opinion did not
address the specific issue raised here in count five – whether the Act covers a
board member-elect's conduct. As the Advisory Opinion recognized, its opinion
is "determined by, and [is] limited to, the facts presented before it." Id. at 3.
The Commission did not therefore waive a prior jurisdictional ruling regarding
the Act's application to a Board member-elect.
The Commission's ruling was not arbitrary, capricious, or unreasonable.
Given the dismissal of count five on jurisdictional grounds, we do not address
its merits.
IV.
Summary Decision
In its August 22, 2023 final agency decision, the Commission rejected the
ALJ's summary decision that Koenig's social media posts, as alleged in counts
one and four, violated N.J.S.A. 18A:12-24.1(e). The Commission dismissed
both counts. We address each count separately.
A. Count One
In count one, appellants allege Koenig violated N.J.S.A. 18A:12-24.1(e)
by posting on her social media account that Board employees should rescind
their union membership.
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The Commission, applying the standard it pronounced in Aziz v.
Nikitinsky, determined that, despite Koenig's lack of a disclaimer, a reasonable
member of the public would not per se perceive that her post was made in her
capacity as a Board member. SEC No. C-56-22 (Oct. 17, 2022) (slip op. at 8).
The Commission noted, "the use of a disclaimer on social media can help to
clarify whether an individual is speaking in his or her official capacity . . .
however, the presence of a disclaimer is not dispositive." Ibid. (emphasis added)
(internal quotations omitted). The Commission noted that even though Koenig's
comments were "divisive, inflammatory, and hostile," appellants' claim was not
viable under the Act. The Commission found Koenig's posts were uploaded on
her private page, insufficiently connected to her Board member position, and
did not deviate from her official duties. The post did not mention her position
on the Board nor appeared to represent the thoughts of the Board at-large. The
mere fact that Koenig also utilized the same social media account to campaign
for her election to the Board, in the Commission's view, did not establish a
sufficient nexus with her independent posts, which were silent as to her Board
involvement. Thus, the Commission found Koenig did not violate N.J.S.A.
18A:12-24.1(e) because her post was neither a personal promise nor
compromised the Board.
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Appellants contend the Commission's summary dismissal of count one
was arbitrary, capricious, and unreasonable because it was contrary to the
substantial credible evidence in the record that Koenig's post compromised the
Board in violation of N.J.S.A. 18A:12-24.1(e). They emphasize that Koenig's
posts involved her Board member activities––campaigning and swearing-in
pictures––and created negative consequences for the Board––community
members protested her posts at Board meetings, two Board resolutions
denounced her posts, and the unions sued the Board due to her post. They stress
Koenig's social media account was public, and she admitted that followers of
her social media account were aware she was a Board member. Appellants argue
her conduct "created a justifiable impression among the public that the public
trust was being violated, and that she did so by taking action which . . . actually
did [] compromise the Board." They add that by failing to disclaim her opinions
as separate from her position as a Board member, as the Commission stressed in
Melnyk v. Fiel, SEC Docket No. C64-18 (2019), the public believed she was
speaking as a Board member given her prominent use of her social media
account for campaigning and her Board membership.
Although we defer to the Commission's findings on laws it is directed to
enforce, we are constrained here to conclude that its grant of summary judgment
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dismissal of count one was in error because it was not supported by the
undisputed facts in the record. We conclude the ALJ correctly assessed the
record and the law in determining that Koenig's post advocating for Board
employees to rescind their labor union memberships violated N.J.S.A. 18A:12-
24.1(e).
The Commission recognized that under Aziz it applies a two-part test to
determine whether a board member's social media posts violate the Act. The
test is:
[(1)] whether a reasonable member of the public could
perceive that the school official is speaking in his or her
official capacity or pursuant to his or her official duties.
. . . [(2)] Whether a school official is perceived as
speaking in his or her official capacity and pursuant to
his or her official duties turns, in large part, on the
content of the speech. . . .
[Aziz, at 8 (internal quotations omitted).]
Furthermore, "if the speech in question does relate to the business of the Board
and/or its operations, it may then be reasonable for the reader to perceive the
speech as being offered in an official capacity and pursuant to his or her official
duties, provided there is a sufficient nexus between the individual's social media
page and his or her role/membership on the Board." Ibid. The Aziz ruling noted
that a disclaimer on a social media post can "help to clarify" whether someone
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is speaking in their official capacity or pursuant to their official duties, but "the
presence of a disclaimer is not dispositive." Ibid.
Appellants correctly contend that Koenig's social media account was her
way of communicating to the public about her Board activities. She used it to
campaign for a seat on the Board; celebrated her election to the Board; and
publicized her swearing-in. By posting "Teachers . . . OPT OUT of NJEA" mere
days after being sworn in as Board member, Koenig voiced her opposition to the
collective bargaining group with whom the Board was legally obligated to
negotiate the terms and conditions of teachers' employment in the school district.
Thus, she was speaking directly to the Board's activities. And given she was a
Board member, the school district community viewed her posts in that context
which, in turn, compromised the Board. This was evidenced by the protests at
the Board meeting and the unions filing an unfair labor practice charge against
the Board due to Koenig's anti-union assertion. See N.J.A.C. 6A:28-6.4(a)(5)
("Factual evidence of a violation of N.J.S.A. 18A:12-24.1.e shall include
evidence that the respondent made personal promises or took action beyond the
scope of the respondent's duties such that, by its nature, had the potential to
compromise the district board of education or the board of trustees."). Koenig's
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post impacted collective bargaining between the Board and the union. Thus, the
Board was compromised by her post.
Because Koenig's social media account was an extension of her Board
member persona, our view of her post might differ had she disclaimed her
comment as not speaking as a Board member. A disclaimer, however, may not
be dispositive of the capacity Koenig was speaking through her post. See Aziz
at 8. Yet, the absence of a disclaimer here strongly supports appellants' position
that Koenig's comments gave the school district community the impression she
was speaking as a Board member and not giving her personal opinion. In fact,
just months before the Commission's summary decision, it issued Advisory
Opinion A02-22 (Sch. Ethics Comm'n Feb. 25, 2022), wherein its sentiment
shifted to suggest that the inclusion of disclaimers is preferrable. In an apparent
effort to guide members "to avoid violating, or being accused of violating, the
[Ethics] Act," the Commission gleaned support from I/M/O Treston, C71-18 at
12, advising that:
when use of social media and online publications has
become commonplace . . . and given that there has been
a significant influx in the number of complaints filed
with the Commission regarding use (or nonuse) of
disclaimers in electronic publications (not just on social
media), it is now more critical than ever to underscore
and emphasize that when Board members want to speak
as private citizens, they must include an appropriate
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disclaimer that makes the capacity in which they are
speaking clear and unambiguous.
[(Emphasis added).]
The Commission reasoned that the anti-union post "do[es] not mention
[Koenig's] membership on the Board nor does she advertise or rely upon her
Board membership when publishing material on her social media page."
However, given her practice of using her social media account, the public would
obviously think she was speaking as a Board member. Under the totality of
circumstances, we conclude appellants carried their burden by showing in count
one that Koenig violated N.J.S.A. 18A:12-24.1(e). Thus, we reverse the
Commission's decision that count one should be dismissed because its ruling
was contrary to the credible evidence in the record and is thus arbitrary,
capricious, and unreasonable. We remand to the Commission to recommend to
the Commissioner of Education whether Koenig should be "reprimand[ed],
censure[d], suspen[ded], or remov[ed]" from the Board for her violation. See
N.J.S.A. 18A:12-29(c). The penalty, however, shall not be imposed until the
Commission makes a final agency decision regarding count three.
B. Count Four
In count four, appellants allege Koenig violated N.J.S.A. 18A:12-24.1(e)
in her social media post harshly criticizing Governor Murphy's possible
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extension of his Executive Order requiring that masks be worn in public school
buildings and reposting on her social media account an anti-mask social media
post by a parent group.
The Commission dismissed count four for the same reasons it dismissed
count one. And appellants raise the same arguments challenging count four as
it did for count one: the Commission's decision was arbitrary, capricious, and
unreasonable; and it was contrary to the credible evidence in the record because
Koenig used her social media account for her Board activities, which created an
impression that the public trust was violated and compromised the Board.
Unlike with count one, we agree with the Commission that the record does
not sustain the allegations in count four that Koenig violated N.J.S.A. 18A:12-
24.1(e). While Koenig's post and repost informed the school district community
of her position on the possible extension of the Governor's mask mandate for
public buildings, the pronouncement did not directly concern her Board
activities. The post and repost, albeit "divisive, inflammatory, and hostile" as
the Commission opined, was Koenig's personal belief that the Governor should
not extend his mask mandate. It did not affect any of her specific Board member
duties. She did not affirmatively state that she would not follow the mandate if
extended. Moreover, there is no indication in the record that her post
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compromised the Board, e.g., caused disruption or any legal action against the
Board. We thus conclude there was an insufficient nexus between her social
media post and her position as a Board member. The Commission's ruling was
not arbitrary, capricious, or unreasonable.
To the extent we have not addressed any of appellants' arguments, we
conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D)
and (E).
Affirmed in part and reversed and remanded in part for proceedings
consistent with this opinion. We do not retain jurisdiction.
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