Michael Skowronski v. Board of Education ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3602-21
MICHAEL SKOWRONSKI,
Petitioner-Respondent,
v.
BOARD OF EDUCATION
OF THE TOWNSHIP OF
EAST GREENWICH,
GLOUCESTER COUNTY,
Respondent-Appellant.
________________________
Argued December 13, 2023 – Decided January 16, 2024
Before Judges Currier, Firko, and Susswein.
On appeal from the New Jersey Commissioner of
Education, Docket No. 92-6/21.
Christopher R. Welgos argued the cause for appellant
(Weiner Law Group LLP, attorneys; Stephen J.
Edelstein, of counsel and on the briefs; Christopher R.
Welgos, on the briefs).
Benjamin W. Spang argued the cause for respondent
Michael Skowronski (Dilworth Paxon LLP, attorneys;
Benjamin W. Spang, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent Commissioner of Education (Laurie L.
Fichera, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Appellant Board of Education of the Township of East Greenwich,
Gloucester County (the Board) appeals from the June 16, 2022 final decision of
the Acting New Jersey Commissioner of Education (Acting Commissioner)
requiring the Board to indemnify respondent Michael Skowronski for his legal
fees and costs incurred in defending an ethics complaint lodged against him by
the former superintendent of the Board under N.J.S.A. 18A:12-20. We affirm.
I.
The underlying facts, as initially found by the School Ethics Commission,
the Administrative Law Judge (ALJ), and thereafter adopted by the Acting
Commissioner, are undisputed. In January 2019, complainant Dr. James J.
Lynch served as superintendent of the Board. On January 2, 2019, Skowronski
began service as a Board member. On January 15, 2019, the Board and all of
its members received a letter sent by email from Lisa Christopher, a teacher
employed by the East Greenwich School District and the parent of three children
enrolled in the District.
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In her letter, Christopher raised concerns about a recent incident at a
United Parcel Service (UPS) facility in Logan Township involving an individual
with a handgun who held two hostages in the building in a standoff with law
enforcement. The suspect was shot by the police after exiting the facility.
Christopher's letter inquired about what actions, if any, the Board was taking to
ensure everyone's safety and mentioned some schools had been put on "shelter
in place" as a precaution. Christopher stated she called the school in the District
where her children were in attendance and was told "the school [wasn't] doing
anything" in response to the incident and "we were far enough away and not to
worry." Christopher expressed her concern to the staff at her children's school
and was advised that Dr. Lynch would be informed of her safety concerns.
According to Christopher, Dr. Lynch asked her to meet with him in his
office. During the meeting, Christopher claimed Dr. Lynch was "highly
offended" that she questioned his authority. Christopher explained in her letter
the police officers "were not and are not always present at the entrance of the
[school] building" and "should have been" on the day of the shooting.
Christopher expressed to Dr. Lynch at their meeting that she was concerned
about preschool age children who were dismissed from school at approximately
the time the incident occurred without officers present.
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Dr. Lynch told Christopher that "he doesn't question" the officers about
their jobs "just like they don't question him about his job." In her letter,
Christopher wrote even though she was not the only parent complaining about
school safety that day, she felt singled out by Dr. Lynch, "communication was
important," and the Board should have emailed the parents and employees in the
District to inform them about what was happening that day.
On January 16, 2019, Board President Lyn 1 McGravey responded to
Christopher's emailed letter and copied the entire Board. McGravey stated in
her email that the Board would "collectively review" and discuss the concerns
raised in Christopher's letter. At a regularly scheduled meeting that day,
Skowronski moved for an executive session to discuss "[p]ersonnel" and an
"employer's communication concerning the [d]istrict's response to the incident
at the UPS in Logan Township." Skowronski claimed he was informed that Dr.
Lynch was handling the issue. According to Skowronski, he objected during the
public session to Dr. Lynch handling Christopher's complaint himself. The
public minutes reflect Christopher's concerns were addressed in the executive
session.
1
Also referred to as "Evelyn" in the record.
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On January 19, 2019, McGravey sent an email to Christopher and copied
the entire Board informing Christopher that the Board discussed the concerns
raised in her letter during its executive session:
After receiving your letter, the Board discussed the
points and questions you raised during our executive
session held on January 16, 201[9], including, but not
limited [to], the actual decision[-]making process,
communication, safety protocols and the use of the
expertise of the East Greenwich Police Department
[EGPD] to assist in making both immediate decisions
regarding an incident and short and long term school
safety plans and measures. While it is always easier for
us to review, analyze, and sometimes second guess a
course of action after the fact, the Board concurs that
the safety of the students was not in jeopardy on
Monday and reliance on the expertise of the EGPD was
properly placed. Please know that the Board recognizes
and is committed to ensuring the safety of both students
and staff is of utmost importance and has empowered
the District leadership team to make decisions
regarding school safety that protect everyone without
causing undue panic.
In response, Christopher sent another letter via email to the Board that
same day again raising concerns about her interaction with Lynch and the
Board's handling of it. On January 22, 2019, McGravey responded to
Christopher via email and indicated she felt the Board had addressed her
concerns.
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On January 22, 2019, Skowronski sent an email to the entire Board
expressing his concerns about how the Board was handling Christopher's
complaints and his recommendations on how to proceed. Skowronski's email
stated:
Good morning fellow [B]oard members. I did see
[McGravey's] most recent response, but in regards to
Ms. Christopher's letters . . . This whole situation has
weighed heavily on me since our last meeting. And I
thought long and hard as to whether I should send my
own email in these past few days. Since we received
this second communication, I feel compelled to suggest
we revisit this, or "re-handle" this, if not only via email
as a group. And PLEASE, indicate to me what I may
be missing here . . . But I do not feel we really
addressed this (and the very specific concerns outlined)
adequately. I don't think having Dr. Lynch handle a
complaint about Dr. Lynch is how we really want to
handle this. Again, PLEASE indicate to me what I may
be missing here. May be there is an aspect of this
situation I am not understanding or aware of. But the
concerns in the communications are serious, and
specific. I believe the 4 points are (harassment, safety,
communication, and fear of retaliation), but her
communication additionally includes the following:
First letter
• Was called out of her classroom
• Singled out and was called to the office
• Children dismissed without officers present
• No officer at entrance of building
• Dr. Lynch doesn't question them about their jobs
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• No community member, parent, or employee
should be made to feel wrong for questioning the
safety
• Email should have been sent informing parents
[and] staff we were aware
Second letter:
• Communication as a whole seems to be an
underlying problem in our [D]istrict
• Why couldn't an email still go out to alleviate any
concerns
• Board thinks its acceptable for the superintendent
to not only berate a parent for expressing a
concern but to also tell that parent they shouldn't
question his authority and for the superintendent
to intimidate them at work
• I was under the impression that as a parent and a
taxpayer I have a right to ask questions
• I was very uncomfortable writing the first letter
• Fear of retaliation for herself, children, and
family
• Putting my faith in the [Board].
Employers are nervous when faced with safety,
discrimination, and harassment complaints, and so
should we. Such complaints lead to workplace tension,
government investigations, and costly legal battles. If
the complaint is mishandled, even if unintentionally,
we may unwittingly put ourselves and our stakeholders
at risk.
If we take the complaint seriously however, we can
reduce the likelihood of a lawsuit and even improve
employee/parent/guardian relations in the process. I
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would suggest either "[R]icing"2 those we need to talk
to, not in a "you're in trouble" sort of way, but rather in
a due-diligence sort of way. Alternatively, we can look
at it as an opportunity to review or discuss best
practices in-house. Not in an accusatory manner, but as
an exercise in how we must treat these situations, our
staff, and to mitigate risk.
We answered Ms. Christopher's original message
saying we discussed it as a [B]oard. But I don't know
that it would have even happened had I not called the
[executive session] . . . , and that both worries and
saddens me . . . I feel we have a fiduciary
responsibility to address these specific concerns as a
group, including Dr. Lynch. Ms. Christopher is correct,
changes aren't made by keeping silent and sweeping
things under the carpet. This seemed poignant to me in
light of the MLK Holiday yesterday.
I attached some best practice suggestions from NOLO 3
to this email if anyone wants to take a look.
I look forward to hearing others' opinions on this as
well.
Thank you all!
2
Presumably, the reference to "Ricing" in the email refers to a Rice notice. A
Rice notice refers to the right of a public employee to receive notice of the
intention of the Board of Education to consider personnel matters related to
them. Rice v. Union Cnty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 74
(App. Div. 1977).
3
NOLO is a free legal website that amalgamates information from various
websites, offers resources such as an encyclopedia of legal articles, online
forms, software, books, and e-Guides, and connects users to attorneys. About
Us, NOLO, https://www.nolo.com/about/about.html (last visited Jan. 9, 2024).
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-Mike
Skowronski inadvertently included Christopher—who was not a member of the
Board—on his email by hitting "reply all." Another Board member copied on
Skowronski's email forwarded it to Dr. Lynch. On February 20, 2019, Dr. Lynch
filed a three-count complaint against Skowronski 4 before the School Ethics
Commission (Commission) alleging violations of the Open Public Meetings Act,
N.J.S.A. 10:4-6 to -21 (count one); violations of the confidentiality of executive
sessions, N.J.S.A. 10:4-13 (count two); and violations of the Code of Ethics for
School Board members, N.J.S.A. 18A:12-24.1(g).
On June 19, 2019, Skowronski moved to dismiss the three-count
complaint in lieu of filing an answer. The Commission granted his motion in
part, dismissing counts one and two, leaving the remaining third count: that
Skowronski "wrote an email to the entire [B]oard with a copy to a member of
the public in which there are negative comments on [D]istrict personnel,
specifically the [s]uperintendent," in violation of N.J.S.A. 12-24.1(g).
The Commission held that "[i]f [c]omplainant can additionally prove that
certain/specific information in the email message was confidential (e.g. specific
issues/matters discussed in executive session that are not (yet) public), and can
4
Lynch v. Skowronski, No. EEC 10213-19, 2020 WL 12175787 (Jan. 25, 2020).
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cite to the authority/basis for the confidential nature of that information,
[c]omplainant may be able to establish a violation of N.J.S.A. 18A:12 -24.1(g)."
The matter was referred to the Office of Administrative Law as a contested case.
On March 6, 2019, Skowronski's attorney sent a letter to the Board's
attorney and demanded indemnification from the Board for legal fees and costs
to defend the allegations in the complaint. The Board's attorney responded that
Skowronski's request would be considered at the conclusion of the matter.
On November 20, 2019, the ALJ conducted a one-day hearing. At the
hearing, Skowronski testified that the inclusion of Christopher, a non -Board
member, on his January 22, 2019 email was an inadvertent mistake, as he only
intended to send the email to his fellow Board members. McGravey testified
that no confidential information was disclosed in Skowronski's email, however,
the opinions expressed in his email "did not reflect the [B]oard's official
position." McGravey stated parts of Skowronski's email were "critical of the
Board's actions by conveying the impression that the Board did not do enough
to address Christopher's concerns."
On February 25, 2020, the ALJ issued an initial decision finding that
Skowronski had not violated N.J.S.A. 18A:12-24.1(g), and dismissing the third
count of the complaint. The ALJ determined that Skowronski testified
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"credibly" that the inclusion of Christopher on his January 22, 2019 email was
"an inadvertent mistake." The ALJ noted Christopher's letters were not derived
from the closed Board session as Dr. Lynch alleged and "were not confidential
or otherwise not previously known to any of the recipients of Skowronski's
email." The ALJ found it was "undisputed" that the Board's discussion of
Christopher's letters was conducted during an executive session on January 16,
2019, and the Board's deliberations held in executive session are entitled to
confidentiality.
However, the ALJ determined "[t]he fact that Christopher's
communications were discussed in executive session that evening, by itself, is
not confidential information within the purview of N.J.S.A. 18A:12-24.1(g)."
The ALJ added that McGravey's email to Christopher on January 19, 2019,
updating her on the status of the Board's actions in response to her letters
undermined the confidentiality of the information regarding Christopher.
Dr. Lynch filed exceptions to the ALJ's decision, essentially contending
the email contained a complaint about him "berating a parent," "intimidating
someone at work," at least one Board member felt the Board might be faced with
a "harassment" complaint based on his actions, and all of this information was
derived from the closed executive session.
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On May 19, 2020, the Commission disagreed with the ALJ's initial
decision, issued a final decision determining that Skowronski had violated
N.J.S.A. 18A:12-24.1(g), and recommended a penalty of reprimand. The
Commission determined the information disclosed in Skowronski's email to
Christopher was confidential. In addition, the Commission found Skowronski's
email contained "new" information that had never been discussed by the Board,
such as how the Board was handling or should handle Christopher's concerns
and the "potential legal ramifications" for not doing so. Skowronski appealed
to the Commissioner.
On December 15, 2020, the Acting Commissioner affirmed the
Commission's decision and the recommended penalty. Skowronski filed a
motion for reconsideration, which the Acting Commissioner denied. On
February 25, 2021, Skowronski's attorney sent another letter to the Board's
attorney seeking indemnification since the matter had concluded. On March 22,
2021, the Board's attorney sent a letter to Skowronski's attorney denying the
request for indemnification stating Skowronski did not have "approval to
disclose the Board's deliberative process" and therefore "did not act in the course
of performing his duties as a [B]oard member."
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On May 27, 2021, Skowronski filed a petition with the Commissioner
seeking to compel the Board to indemnify him for the costs of his defense of the
School Ethics charge pursuant to N.J.S.A. 18A:12-20, which requires a Board
to indemnify Board members for all costs in defending against civil actions,
including ethics complaints. Skowronski alleged he incurred over $38,000 in
legal fees and costs in defending the ethics complaint. The Board filed an
answer and affirmative defenses asserting Skowronski's petition should be
dismissed for failure to state a claim on which relief could be granted.
Skowronski moved for partial summary decision, and the Board moved for
summary decision under N.J.A.C. 1:1-12.5.
On May 5, 2022, a second ALJ issued an initial summary decision finding
that Skowronski was entitled to indemnification by the Board for legal fees and
costs he incurred in defending the ethics allegations brought against him by the
District superintendent. The ALJ concluded Skowronski's conduct that resulted
in the filing of the ethics complaint "arose out of and in the performance of his
duties as a member of the Board."
The ALJ found Skowronski sent the email using his Board email account
in direct response to an email from the Board's president, regarding a matter
pending before the Board. The ALJ highlighted that the Commissioner
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previously found Skowronski's email was part of the Board's deliberative
process. The ALJ concluded that Skowronski was entitled to indemnification
under N.J.S.A. 18A:12-20, because his conduct arose out of the performance of
his duties as a member of the Board and defending school ethics allegations
brought against him by the District superintendent. The ALJ found
Skowronski's conduct resulted in "a civil administrative action for violation of
the School Ethics Act." The Board filed exceptions to the initial summary
decision.
On June 16, 2022, the Acting Commissioner issued a final decision
upholding the ALJ's initial summary decision and ordering the Board to
reimburse Skowronski for reasonable legal fees and costs in connection with the
matter. Relying on Quick v. Bd. of Educ. of Twp. of Old Bridge, Middlesex
Cnty., 308 N.J. Super. 338, 342 (App. Div. 1998), the Acting Commissioner
noted "the outcome of the action is irrelevant," and N.J.S.A. 18A:12-20,
"protects both successful and unsuccessful litigants." The Acting Commissioner
found the fact that Skowronski disclosed confidential information did not
preclude indemnification. The Acting Commissioner determined the
Commission's decision is "supported by sufficient, credible evidence," and
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Lynch failed to establish that the decision was "arbitrary, capricious, or contrary
to law," under N.J.A.C. 6A:4-1.1(a). This appeal followed.
The Board raises two arguments for our consideration:
(1) the Acting Commissioner erred when she failed to
review the time, place, and subject matter of
Skowronski's actions; and
(2) the Acting Commissioner erred when she found
Skowronski was entitled to indemnification.
We disagree.
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) (citing Russo v.
Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)). An agency
decision will be upheld unless "there is a clear showing that it is arbitrary,
capricious, or unreasonable, or that it lacks fair support in the record." Russo,
206 N.J. at 27 (quoting In re Herrmann, 193 N.J. 19, 27-28 (2007)). "The burden
of demonstrating that the agency's action is arbitrary, capricious, or
unreasonable rests upon the party challenging the administrative action."
Lavezzi v. State, 219 N.J. 163, 166 (2014) (quoting In re J.S., 431 N.J. Super.
321, 329 (App. Div. 2013)).
Our role in reviewing administrative action is limited to three inquires:
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(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
Allstars Auto Grp., 234 N.J. at 157 (quoting In re Stallworth, 208 N.J. 182, 194
(2011)). If the criteria are met, then a court owes substantial deference to the
agency's decision, even if the court would have come to a different decision. In
re Herrmann, 192 N.J. at 28. However, reviewing courts are not bound by an
agency's interpretation of statute or law. Allstars Auto Grp., 234 N.J. at 158;
see Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992) (finding
that, "[a]gencies . . . have no superior ability to resolve purely legal questions,
and that a court is not bound by an agency's determination of a legal issue is
well established"). Thus, our analysis is guided by these standards.
With the enactment of the School Ethics Act, the Legislature has declared
that school board members must conduct themselves 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. The
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Legislature has further declared that public confidence in school board members
is preserved through "specific standards to guide their conduct." Ibid. Those
standards include a Code of Ethics for School Board Members, embodied in
N.J.S.A. 18A:12-24.1. Subsection (g) provides:
I will hold confidential all matters pertaining to the
schools which, if disclosed, would needlessly injure
individuals or the schools. In all other matters, I will
provide accurate information and, in concert with my
fellow [B]oard members, interpret to the staff the
aspirations of the community for its school.
N.J.S.A. 18A:12-20 entitles members of Boards of Education to be
indemnified for the cost of defense of a civil or criminal action:
Whenever a civil , administrative, criminal or quasi-
criminal action or other legal proceeding has been or
shall be brought against any person for any act or
omission arising out of and in the course of the
performance of his [or her] duties as a member of a
[B]oard of [E]ducation, and in the case of a criminal
or quasi-criminal action such action results in final
disposition in favor of such person, the [B]oard of
[E]ducation shall defray all costs of defending such
action, including reasonable counsel fees and
expenses, together with costs of appeal, if any, and shall
save harmless and protect such person from any
financial loss resulting therefrom.
[(emphasis added).]
And in a civil proceeding, N.J.S.A. 18A:12-20, must be "construed liberally to
promote a diversity of views on educational issues and policy and encourage
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members of local [B]oards of [E]ducation to express their views freely, without
fear of intimidation." Castriotta v. Bd. of Educ. of Twp. of Roxbury, 427 N.J.
Super. 592, 602 (App. Div. 2012) (citing Quick, 308 N.J. Super. at 342).
We are satisfied the Acting Commissioner's affirmance of the
Commission's decision was not arbitrary, capricious, or unreasonable, and is
supported by substantial credible evidence in the record. Consequently, the
Board's challenge has no merit. The Acting Commissioner applied the correct
legal standard under N.J.S.A. 18A:12-20, entitling Skowronski to
indemnification because his actions in sending his subject email arose out of or
were in the course of performance of his duties as a Board member.
The Acting Commissioner acknowledged the Commission's finding that
Skowronski violated N.J.S.A. 18A:12-24.1(g), for two reasons: (1) his email
was pre-decisional; and (2) deliberative in nature. She noted the Board had just
received Christopher's email, and the Board had not yet determined how to
respond, making it pre-decisional. The Acting Commissioner held Skowronski's
email is deliberative in nature because he "expressed concern that mishandling
the complaint could put the Board and its stakeholders at risk," recommended
the Board issue a "Rice notice," and "opined on the Board's fiduciary
responsibilities." Moreover, the Acting Commissioner found these types of
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"tentative thoughts, suggestions, and questions are part and parcel of the Board's
overall deliberative process."
Affirmed.
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