All “school officials” are required to comply with the School Ethics Act (Act).[1] “School officials” include board members, all employees of the New Jersey School Boards Association, and “administrators.”[2]

There are many times when school officials have questions or concerns about whether an activity or service they wish to undertake or a message they intend to make may violate the Act. One resource they may access is the school board attorney. Of course, doing so will require the board attorney to undertake research to render an opinion and this will incur costs to the board for the attorney’s services. Another resource is to access the School Ethics Commission’s (SEC’s) advisory opinions posted online and try to locate a published advisory opinion that addresses the underlying question or concern.[3]

The final and perhaps best way to have an ethics question answered is to submit a request for an advisory opinion to the SEC. The SEC receives approximately 30 to 40 requests for advisory opinions per year, but will deny approximately one-third of them if the issue has already been addressed in a publicly available opinion, if the requestor is not a school official, or for other reasons.[4] School officials should be aware that the regulations governing matters involving the SEC were recently readopted by the State Board of Education with amendments including changes to the process for requesting an advisory opinion.

As previously stated, only school officials are entitled to request an advisory opinion.[5] The school official or an attorney acting on behalf of the school official, may request an advisory opinion regarding whether any proposed conduct or activity within the same school district in which the school official serves would constitute a violation of the Act.[6] If an attorney makes a request on behalf of a school official, the request must provide the name of the school official and the name of the school district.[7]

There are certain procedures that must be followed when requesting an advisory opinion. First, the letter request must be sent to the SEC by regular mail and by email to school.ethics@doe.nj.gov. The SEC’s mailing address is:

School Ethics Commission
New Jersey Department of Education
100 Riverview Plaza
P.O. Box 500
Trenton, NJ 08625

Second, the request must state in detail the following: (i) the anticipated future conduct or activity the school official wants to undertake; (ii) the exact role the school official anticipates having in that activity or conduct; and (iii) the anticipated date(s) the prospective activity is to occur or begin.[8]

Third, which is a new element, the request must include a statement that the school official has reviewed the public advisory opinions available on the SEC’s website, and that the concern raised in the request has not already been addressed by the SEC in one of those opinions.[9] The Department of Education clarified during the rulemaking process that the SEC will hold harmless a school official if there is already an existing advisory opinion that is found to be responsive to the advisory opinion request.[10]

Fourth and last, if the requestor is inquiring about the conduct or activity of another school official, the requestor must provide “proof of service” that the school official who is the subject of the request has been copied on it.[11] There are five different ways to effectuate proof of service as follows: (1) an acknowledgment of service signed by the school official’s attorney indicating the address where it was served; (2) an affidavit of the person who effectuated service, sworn or affirmed to be true, indicating the address at which the school official was served; (3) a signed and dated certification indicating the address at which school official was served and on which the serving party states “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.;” (4) a copy of the receipt for certified mail or delivery; or (5) a copy of the email address at which the school official was served, along with a copy of the “delivered” and/or “read” receipt.[12] The school official whose conduct is in question will then have 10 days from receipt of the request to submit a response, if any, to the SEC.[13]

When the SEC receives the request, it will assign it a file number.[14] The information in a request for an advisory opinion will not be made public unless the SEC votes to make it public.[15] While the request is being processed, it will only be identified by file number for purposes of public access, and not by the name of the requestor.[16]

In terms of processing a request for an advisory opinion, the SEC has several options available to it. It may hold off issuing an advisory opinion pending the final resolution of any litigation involving the subject matter of the request.[17] It may request additional information from the school official or his/her attorney or may require the school official’s appearance before the SEC to provide such information.[18] It may also deny the request for an advisory opinion.[19] It may do so if there is a publicly available advisory opinion that sufficiently addresses the question, the request fails to comply with the procedures set forth above, or where there is insufficient time for the SEC to consider the request before the proposed activity is to occur.[20]

The SEC may, of course, process the request and then issue an advisory opinion. The SEC can decide to make the advisory opinion public with at least six votes.[21] If it does so, all identifying information will be omitted including the names of any persons and school district involved.[22] The SEC may copy the board attorney on its response to the request for an advisory opinion unless the requestor has stated to the SEC that s/he wants the submission to remain confidential.[23]

School officials should always seek advice and guidance when they have questions or concerns about employment, business interests, or other activity relative to the school district with which they are associated. Requesting an advisory opinion from the SEC is a great way to get such guidance. However, it is now a prerequisite that the school official review publicly available advisory opinions and see whether any address his/her particular circumstances before making any request. If after undertaking a review of the publicly available advisory opinions the school official still has a concern, s/he may make the request to the SEC and will need to follow the rules specified in N.J.A.C. 6A:28-5.2 as discussed above.