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 appellan t (Weiner Law Group LLP, attorneys; Stephen J. Edelstein, of counsel and on the briefs; Christophe r 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).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3602

- 21 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 Ea st Greenwich, Gloucester County (the Board) appeals from the June 16, 2022 final decision of the Acting New Jersey Commissioner of Education (Ac ting Commissioner) requiring the Board to indemnify respondent Michael Skowronski for his legal fees and costs incurred in defending an ethics comp laint 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 Sc hool Ethics Commission , the Administrative Law Judge (ALJ), and thereafter adopted by the Acting Commissioner, are undisputed. In January 2019, com plainant Dr. James J. Lynch served as superintendent of the Board. On Ja nuary 2, 2019, Skowronski began service as a Board member. On January 15, 20 19, the Board and all of its members received a letter sent by email from Li sa Christopher, a teacher employed by the East Greenwich School District and the parent of three children enrolled in the District.3 A- 3602

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In her letter, Christopher raised concerns about a recent incident at a United Parcel Service (UPS) facility in Logan Towns hip involving an individual with a handgun who held two hostages in the buildin g in a standoff with law enforcement. The suspect was shot by the police af ter exiting the facility. Christopher's letter inquired a bout 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 s taff 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 m eet with him in his office. During the meeting, Christopher claimed Dr . Lynch was "highly offended" that she questioned his authority. Chris topher explained in her letter the police officers "were not and are not always prese nt at the entrance of the [school] building" and "should have been" on th e day of the shooting. Christopher expressed to Dr. Lynch at their meeting that she was concerned about preschool age children who were dismissed from schoo l at approximately
the time the incident occurred without officers present

.4 A- 3602

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Dr. Lynch told Christopher that "he doesn't questio n" 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 email ed the parents and employees in the District to inform them about what was happening th at 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 discus s "[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.5 A- 3602

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On January 19, 2019, McGravey sent an email to Chr istopher and copied the entire Board informing Christopher that the Boa rd discussed the concerns raised in her letter during its executive session:

After receiving your letter, the Board discussed th e points and questions you raised during our executiv e 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 [E GPD] to assist in making both immediate decisions regarding an incident and short and long term schoo l safety plans and measures. While it is always easi er 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 wa s properly placed. Please know that the Board recogn izes and is committed to ensuring the safety of both stu dents and staff is of utmost importance and has empowered the District leadership team to make decisions regarding school safety that protect everyone witho ut causing undue panic. In response, Christopher sent another letter via em ail to the Board that same day again raising concerns about her interacti on with Lynch and the Board's handling of it. On January 22, 2019, McGra vey responded to Christopher via email and indicated she felt the Bo ard had addressed her

concerns.6 A- 3602

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On January 22, 2019, Skowronski sent an email to t he entire Board expressing his concerns about how the Board was han dling Christopher's complaints and his recommendations on how to procee d. Skowronski 's email stated: Good morning fellow [B]oard members. I did see

[McGravey's] most recent response, but in regards t o Ms. Christopher's letters . . . This whole situati on 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 receive d this second communication, I feel compelled to sugg est 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 outl ined) adequately. I don't think having Dr. Lynch handle a complaint about Dr. Lynch is how we really want to hand le 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 jobs7 A- 3602

- 21 • 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 unintentionall y, we may unwittingly put ourselves and our stakeholder s 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. I8 A- 3602

- 21 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, b ut 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 t he [executive session] . . . , and that both worries a nd saddens me . . . I feel we have a fiduciary responsibility to address these specific concerns a s a group, including Dr. Lynch. Ms. Christopher is cor rect, 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 emai l refers to a Rice notice. A Rice notice refers to the right of a public employe e to receive notice of the intention of the Board of Education to consider per sonnel matters related to them. Rice v. Union Cnty. Reg'l High Sch. Bd. of Edu c., 155 N.J. Super. 64, 74 (App. Div. 1977).

3 NOLO is a free legal website that amalgamates infor mation 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.c om/about/about.html (last visited Jan. 9, 2024 ).9 A- 3602

- 21 -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 e xecutive 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 Commiss ion granted his motion in part, dismissing counts one and two, leaving the re maining third count: that Skowronski "wrote an email to the entire [B]oard wi th a copy to a member of the public in which there are negative comments on [D]ist ri ct 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 a dditionally prove that certain/specific information in the email message w as 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 1217 5787 (Jan. 25, 2020).10 A- 3602

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cite to the authority/basis for the confidential na ture 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 Administra tive Law as a contested case. On March 6, 2019, Skowronski's attorney sent a let ter to the Board's attorney and demanded indemnification from the Boar d for legal fees and costs to defend the allegations in the complaint. The Bo ard's attorney responded that Skowronski's request would be considered at the con clusion 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 inadve rtent mistake, as he only intended to send the email to his fellow Board memb ers. McGravey testified that no confidential information was disclosed in S kowronski's email, however, the opinions expressed in his email "did not reflec t the [B]oard's official position." McGrav ey stated parts of Skowronski's email were "critica l of the Board's actions by conveying the impression that th e Board did not do enough to address Christopher's concerns." On February 25, 2020, the ALJ issued an initial dec ision finding that Skowronski had not violated N.J.S.A. 18A:12-24.1(g) , and dismis sing the third count of the complaint. The ALJ determined that Skowronski testified11 A- 3602

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"credibly" that the inclusion of Christopher on his January 22, 2019 email was "an inadvertent mistake." The ALJ not ed 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 rec ipients of Skowronski's email." The ALJ found it was "undisputed" that the Board's discussion of Christopher's letters was conducted during an execu tive session on January 16, 2019, and the Board's deliberations held in executi ve session are entitled to confidentiality. However, the ALJ determined "[t]he fact that Christ opher'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 i n response to her letters undermin ed the confidentiality of the information regarding C hristopher. Dr. Lynch filed exceptions to the ALJ's decision, e ssentially contending
the email contained a complaint about him "berating a parent," "intimidating someone at work," at least one Board member felt th e Board might be faced with a "harassment" complaint based on his actions, and all of this information was derived from the closed executive session.12 A- 3602

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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 Com mission found Skowronski's email contained "new" information that had never be en discussed by the Board, such as how the Board was handling or should handle Christopher's concerns and the "potential legal ramifications" for not doi ng so. Skowronski appealed to the Commissioner. On December 15, 2020, the Acting Commission er affirmed the Commission's decision and the recommended penalty. Skowronski filed a motion for reconsideration, which the Acting Commis sioner denied. On February 25, 2021, Skowronski's attorney sent anoth er letter to the Board's attorney seeking indemnification since the matter h ad concluded. On March 22, 2021, the Board's attorney sent a letter to Skowron ski's attorney denying the request for indemnification stating Skowronski did not have "approval to disclose the Board's deliberative process" and ther efore "did not act in the course of performing his duties as a [B]oard member."13 A- 3602

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On May 27, 2021, Skowronski filed a petition with the Commissioner seeking to compel the Board to indemnify him for th e 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 defendi ng against civil actions, including ethics complaints. Skowronski alleged he incurred over $38,000 in legal fees and costs in defending the ethics compla int. The Board filed an answer and affirmative defenses asserting Skowronsk i's petition should be dismissed for failure to state a claim on which rel ief 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 summ ary decision finding that Skowronski was entitled to indemnification by the Board for legal fees and costs he incurred in defending the ethics allegatio ns brought against him by the District superintendent. The ALJ concluded Skowronsk i'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 B oard email account in direct response to an email from the Board's pre sident, regarding a matter pending before the Board. The ALJ highlighted that the Commissioner14 A- 3602

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previously found Skowronski's email was part of the Board's deliberative process. The ALJ concluded that Skowronski was ent itled 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 s chool ethics allegations brought against him by the District superintendent. The ALJ found Skowronski's conduct resulted in "a civil administr ative 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 Bri dge, Middlesex Cnty., 308 N.J. Super. 338, 342 (App. Div. 1998), t he Acting Commission er noted "the outcome of the action is irrelevant," an d N.J.S.A. 18A:12- 20 , "protects both successful and unsuccessful litigant s." The Acting Commissioner found the fact that Skowronski disclosed confidenti al information did not preclude indemnification. The Acting Commissioner determined the Commission's decision is "supported by sufficient, credible evidence," and15 A- 3602

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Lynch failed to establish that the decision was "ar bitrary, 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 considerati on:

(1) the Acting Commissioner erred when she failed t o review the time, place, and subject matter of Skowronski's actions; and (2) the Acting Commissioner erred when she found Sk owronski was entitled to indemnification. We disagree.
II. "Judicial review of agency determinations is limite d." Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 15 7 (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 sh owing 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 arbitr ary, capricious, or unreasonable rests upon the party challenging the a dministrative 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:16 A- 3602

- 21 (1) whether the agency's action violates express o r implied legislative policies, that is, did the agen cy 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 t o the facts, the agency clearly erred in reaching a concl usion that could not reasonably have been made on a showi ng 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 owe s substantial deference to the agency's decision, even if the court would have come to a di fferent decision. In re Herrmann, 192 N.J. at 28. However, reviewing co urts are not bound by an agency's interpretation of statute or law. Allstar s 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 determ ination of a legal issue is well established"). Thus, our analysis is guided by these standards. With the enactment of the School Ethics Act, the Legi slature has declared that school board members must conduct themselves t o "avoid conduct which is in violation of their public trust or which creates a justif iable impression among the public that such trust is being violated." N.J .S.A. 18A:12-22. The17 A- 3602

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Legislature has further declared that public confid ence in school board members is preserved through "specific standards to guide t heir 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 injur e individuals or the schools. In all other matters, I will provide accurate information and, in concert with m y 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 Ed ucation to be indemnified for the cost of defense of a civil or c riminal action:

Whenever a civil , administrative, criminal or quas icriminal 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 fin al disposition in favor of such person, the [B]oard of [E]ducation shall defray all costs of defending suc h ac tion , including reasonable counsel fees and expenses, together with costs of appeal, if any, an d 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 encourage18 A- 3602

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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 affirma nce of the Commission's decision was not arbitrary, capricious , or unreasonable, and is supported by substantial credible evidence in the r ecord. 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 Commissio n's finding that Skowronski violated N.J.S.A. 18A:12-24.1(g), for tw o reasons: (1) his email was pre-decisional; and (2) deliberative in nature. She n oted the Board had just received Christopher's email, and the Board had not yet determined how to respond, making it pre-decisional. The Acting Comm issioner held Skowronski's email is deliberative in nature because he "express ed concern that mishandling the complaint could put the Board and its stakehold ers at risk," recommended the Board issue a "Rice notice," and "opined on the Board's fiduciary responsibilities." Moreover, the Acting Commission er found these types of19 A- 3602

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"tentative thoughts, suggestions, and questions are part and parcel of the Board's overall deliberative process." Affirmed.