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22-17ASEC (SEC Decision: http://www.state.nj.us/education/legal/ethics/2013/C58-14.pdf)
AGENCY DOCKET NO. 4-10/15A
SEC DOCKET NO. C58-14
MATTHEW CHENG, :
COMPLAINANT, :
V. : COMMISSIONER OF EDUCATION
STEVEN RODAS, WEST NEW YORK : DECISION
BOARD OF EDUCATION, HUDSON
COUNTY, :
RESPONDENT. :
____________________________________
This matter involves an appeal of the School Ethics Commission’s
September 22, 2015 determination that respondent Steven Rodas, Board President, West New
York Board of Education (the Board), violated N.J.S.A. 18A:12-24.1(e) of the Code of Ethics for
School Board Members when he personally issued a Rice
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notice to the Board
Secretary/Business Administrator (B.A.) and when he directed the Board attorney to issue a
second Rice notice to the B.A., both without prior notification to the Board nor the
superintendent’s recommendation.
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The Commission recommended a penalty of reprimand for
the violation. Having carefully reviewed the Commission’s decision and the record in its
entirety, the Commissioner finds that the Commission’s decision is supported by sufficient,
credible evidence, and that respondent failed to establish that the decision is arbitrary, capricious
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Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64 (App. Div. 1977), certif.
denied, 76 N.J. 238 (1978).
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At the hearing, complainant withdrew the allegations set forth in Paragraphs 9 through 12 of the Complaint that
respondent violated N.J.S.A. 18A:12-24.1(e) and (j) of the Code of Ethics for School Board Members. The matter
proceeded on claims that respondent violated N.J.S.A. 18A:12-24.1(e) as alleged in Paragraphs 3 through 8 of the
Complaint. Upon review, the Commission dismissed the allegations in Paragraphs 3 and 6 through 8 of the
Complaint, but found that respondent violated N.J.S.A. 18A:12-24.1(e) as to Paragraphs 4 and 5 of the Complaint.
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or contrary to law. N.J.A.C. 6A:4-1.1(a). Additionally, the Commissioner finds that a penalty of
reprimand is appropriate.
In his appeal to the Commissioner, respondent maintains that he did not violate
N.J.S.A. 18A:12-24.1(e) because he was advised by the Board attorney that – according to his
interpretation of Melindo Persi v. Daniel Woska, Township of Brick Board of Education,
Ocean County, Commissioner’s Decision No. 260-14A, decided June 17, 2014 – the Board
president had authority to issue a Rice notice to the B.A., and respondent relied upon that advice.
Specifically, the Board attorney reasoned that since the Commissioner found in Persi that a
Board president was permitted to issue a Rice notice to the superintendent, one could draw the
conclusion that the Board president should also be permitted to issue a Rice notice to the B.A.
Respondent also argues that he did not violate N.J.S.A. 18A:12-24.1(e) because he did not make
personal promises or take private action to compromise the Board; while his action may have
been individual action, it was taken on behalf of the board and not himself.
Respondent contends that he should not be penalized for conduct that was not a
clear violation of the School Ethics Act. He points out that the School Ethics Commission’s
September 22, 2015 decision recommends a change to the Persi decision so that authority to
issue a Rice notice would lie with the Board president and a majority of the Board, rather than
the Board president or the full majority of the Board. (SEC Decision at 9 n. 4) Respondent
argues that there was no way he could have known about this change of interpretation at the time
of his actions.
Alternatively, respondent argues that even if the Board attorney was incorrect in
his interpretation of Persi, respondent should not be penalized because he relied upon the good
faith advice of counsel, and “relying upon the advice of counsel insulates board members from
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blame.” (Respondent’s brief at 15) Respondent relies upon three Commission decisions – In the
Matter of Lorraine Perrino, Little Egg Harbor Township Board of Education, Ocean County,
SEC Dkt. No. C30-14, July 29, 2015; In the Matter of Carmine Cimino, Little Egg Harbor
Township Board of Education, Ocean County, SEC Dkt. No. C31-14, July 29, 2015; and In the
Matter of Martha “June” Palan, Little Egg Harbor Township Board of Education,
Ocean County, SEC Dkt. No. C32-14, July 29, 2015 – in which board members did not suffer a
penalty when they relied upon the advice of counsel that their actions would not likely result in
an ethical violation.
Finally, respondent contends that at the ethics training for board members, he was
instructed to consult with a board attorney for specific advice. He argues that he should not be
penalized for relying upon the advice of board counsel when he was told by the New Jersey
School Board Association to seek such advice. Respondent further points out that the cases cited
by the Commission in support of a reprimand are not similar to this matter, as his actions do not
rise to the same level of the misuse of power as the respondents in those cases. As such,
respondent maintains that he did not violate N.J.S.A. 18A:12-24.1(e), and – even if he did – he
should not suffer a penalty.
Upon a comprehensive review of the record, the Commissioner finds that the
decision of the Commission as to a determination of a violation of N.J.S.A. 18A:12-24.1(e) is
supported by sufficient credible evidence, and the respondent has not established that the
Commission’s decision is arbitrary, capricious or contrary to law.
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N.J.A.C. 6A:4-4.1(a). The
evidence in the record fully supports the Commission’s determination that respondent took
action beyond the scope of his authority when he unilaterally issued a Rice notice to the B.A. and
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The Commissioner is also in accord with the Commission’s determination that the respondent did not violate
N.J.S.A. 18A:12-24.1(e) based on the allegations in Paragraphs 3 and 6 through 8 of the Complaint, but rather only
for the allegations in Paragraphs 4 and 5 of the Complaint.
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when he directed the Board attorney to issue a second Rice notice to the B.A., both without
notice to the Board or the superintendent’s recommendation. The respondent – in his Answer –
admitted to issuing the Rice notice and directing the Board attorney to issue a Rice notice,
without any advance notice or discussion. Such action can only be construed as private action,
as it was taken independently and without the recommendation of the Board. Issuing a Rice
notice, and directing another to issue said notice – without either notification to the Board or the
recommendation of the superintendent – compromised the Board because it implied that
respondent was acting on behalf of that body, when in fact no one authorized the Rice notice to
be issued – resulting in the B.A.’s resignation. For the reasons expressed in the Commission’s
comprehensive decision, the respondent’s conduct violated N.J.S.A. 18A:12-24.1(e).
The Commissioner does not find respondent’s arguments to be persuasive. With
respect to respondent’s argument that he relied on the advice of Board counsel, the
Commissioner notes – at the outset – that there is no evidence in the record that respondent
actually relied upon the advice of Board counsel. Respondent did not testify to set forth the facts
upon which he relies for this argument. Nevertheless, the Board attorney’s advice – upon which
respondent claims to have relied – was incorrect.
In Persi, the Commissioner was charged with determining who has the authority
to issue a Rice notice to a school superintendent. Persi, Commissioner’s Decision No. 260-14A,
decided June 17, 2014. The Commissioner found that “a single board member is without
authority to direct issuance of a Rice notice to the chief school administrator of a district. Rather,
that authority lies with the president of a district board of education or a majority of the full
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membership of a district board of education.”
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Id. at 3. The testimony in the Persi matter
indicated that “ordinarily, a Rice notice would be signed by the Business Administrator, the
Superintendent or Assistant Superintendent, in this instance, the Interim Superintendent was to
be the subject of the discussion.” Persi, SEC Docket No. C25-08, dated February 28, 2012, at 7.
Thus, as the chief school administrator could not issue a Rice notice to himself or herself, the
procedure changed and the Commissioner found that a Board president or majority of the board
had the authority to issue the Rice notice to the superintendent in that unique circumstance. It
does not follow that a Board president would have the authority to issue a Rice notice to any
other employee, because there would be no need for an exception to the standard procedure.
Accordingly, the Board president here was required to consult with the superintendent rather
than unilaterally issuing a Rice notice to the B.A.
Although respondent argues that the Perrino, Cimino, and Palan decisions
demonstrate that his reliance on the advice of counsel insulates him from blame, such a
conclusion is without basis. In those matters, the complainant alleged that the respondents
violated the Code of Ethics for School Board Members when they participated in the hiring
process for the new superintendent, even though they each had an immediate family member
who was a district employee. Perrino, Cimino, and Palan, supra, at 2. Specifically, the Board
attorney had advised them that although they need to be recused from the search and selection
process and from voting on the candidate, it would not likely violate the School Ethics Act if
they participated in the process of selecting and appointing the consulting firm to conduct the
search for the superintendent. Ibid. After the Commission issued an advisory opinion indicating
that Board members may not participate in any aspect of the superintendent’s search, the Board
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The Commission recommended that the ruling in Persi be modified to require that the authority to issue a Rice
notice to the chief school administrator lies with the president and a majority of a district board of education. (SEC
Decision, at p. 9, n. 4) As that is not an issue in this matter, the Commissioner need not reach that issue.
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voted to rescind the vote to select the consulting firm and allow only the non-conflicted Board
members to vote on a new firm. Id. at 3.
The respondents in the above-cited cases argued that they should not be held
accountable for their actions because they “followed advice of counsel and there was not
prevailing authority to prohibit [their] voting for the firm to conduct the search.” Id. at 5. The
Commission found that “[t]he respondent[s] also argue[] that the legal advice the Board received
insulates [them] from blame for [their] conduct. It does not. Each Board member undergoes
ethics training as each is responsible for [his or her] own ethical conduct. That responsibility
cannot be delegated or avoided.” Id. at 6. As such, the Commission found that the respondents
were in violation of the School Ethics Act. Id. at 7. Nevertheless, the Commission declined to
issue a penalty because “the non-conflicted Board members summarily took remedial action to
rescind the vote of June 10, 2014, corrected the minutes and voted to select a different consulting
firm to lead the search without the Respondent[s’] involvement.” Ibid.
As such, those decisions make clear that respondent is not “insulated from blame”
by relying upon the advice of counsel. To the contrary, the Commission reiterated that
respondents are responsible for their own actions. Here, as noted in the Commission’s decision,
respondent should have completed his ethics training and has a duty to act prudently and
cautiously. In this matter, the Board attorney did not provide legal support for his finding that
the Board president could issue a Rice notice to the B.A. Given the sufficient uncertainty,
respondent should have filed a request for an Advisory Opinion with the Commission on the
matter, rather than taking action on his own. Although the Commission chose not to impose a
penalty on the respondents in Perrino, Cimino, and Palan since their actions had been
remediated and the vote had been rescinded, such circumstances do not exist here. No remedial
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action was taken; instead, the B.A. resigned based on the Rice notice. Respondent’s actions
resulted in a permanent outcome.
As such, the Commissioner accepts the Commission’s recommendation – for the
reasons expressed in the Commission’s decision – that a reprimand is the appropriate penalty in
this matter. In so ruling, the Commissioner finds that issuance of a reprimand here is consistent
with penalties in prior cases involving violations of N.J.S.A. 18A:12-24.1(e). Therefore, the
Commission’s recommended penalty will not be disturbed.
Accordingly, IT IS ORDERED that Steven Rodas is hereby reprimanded as a
school official found to have violated the School Ethics Act.
IT IS SO ORDERED.
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ACTING COMMISSIONER OF EDUCATION
Date of Decision: January 20, 2017
Date of Mailing: January 20, 2017
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This decision may be appealed to the Superior Court, Appellate Division, pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1)
