“JUST BETWEEN YOU AND ME” RARELY EVER STAYS BETWEEN YOU AND ME FOR BOARD OF EDUCATION MEMBERS
In a recent decision, Anthony M. Fleres v. Yu Taylor Zhong, the School Ethics Commission (“Commission”) determined that a board of education member violated the confidentiality mandate of the School Ethics Act (“Act”) through the use of his private social media platform.
This case focused on the action of West Windsor Plainsboro Board of Education President Yu Taylor Zhong. In February 2018, Mr. Zhong received a text message from a District parent, inquiring about an alleged incident at the high school resulting in the discipline of a student. Although the text message did not identify the student by name, the information provided was sufficient to identify the student. The text message also detailed the alleged incident as well as the suspension imposed on the student by the high school administration.
Upon his receipt of the text message, Mr. Zhong forwarded the message to his wife and two high school-aged children by way of the social media platform WeChat. Mr. Zhong did not include any message of his own when forwarding the text message. One of his family members proceeded to forward the text message to others outside of Mr. Zhong’s initial message group of three (3) family members. The text message was eventually seen by the student discussed in the text message. The student was notably upset that information regarding his conduct and suspension had been made public without his knowledge or consent.
When the details outlined above were brought to the attention of the Board of Education, fellow Board member Anthony Fleres filed an Ethics Complaint against Mr. Zhong claiming that he violated the Code of Ethics for School Board Members. Specifically, Mr. Fleres alleged that Mr. Zhong violated N.J.S.A. 18A:12-24.1(g).
N.J.S.A. 18A:12-24.1(g) holds board members to the following obligation: “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 board members, interpret to the staff the aspirations of the community for its school.”
As a Board member, confidential information was routinely entrusted to Mr. Zhong’s care, as was often necessary for the Board to make decisions in the best interest of the District. However, it is critical for board members to understand the importance of maintaining and ensuring the confidentiality of such information. Failure to do so can result in significant injury or harm, such as a student’s perception of a violation of privacy.
While the initial text message was not sent by a District employee or a fellow Board member, the lower court found, and the Commission agreed, that the text message was sent to Mr. Zhong “because he was a member of the Board of Education and as such, believed to be in a position to know the truth of the incident.” Mr. Zhong received the text message solely because of his position on the Board and the public perception of him as a source of reliable and truthful information.
In affirming the decision of the lower court, the School Ethics Commission determined that as a general rule, information relating to students, including information relating to student discipline, is considered confidential information. By forwarding the initial text message to his family members, “without the benefit of any comment, caution or instruction” that the content of the message had not been verified or come from a reliable source, Mr. Zhong violated the confidentiality obligation explicitly outlined in the Act. Given the nature of Mr. Zhong’s position as President of the Board, his “family members believed the information to be ‘news’ and shared it with others.”
Although Mr. Zhong argued that he did not intend for his family members to further disseminate the text message, the Commission stated that confidential information received by a board member should not be shared with anyone, even immediate family. According to the Commission, Mr. Zhong’s reaction to the initial text message should have been to contact the Superintendent, rather than passing confidential student information along to members of the public.
In sum, the Commission found that Mr. Zhong carelessly passed on information about a student that he had received by the nature of his position as President of the Board. Without any comment, caution or instruction, his family members or other members of the public would conclude that the words were not his own and were not to be trusted as if they were. More generally, the Commission went one step further than the lower court and strongly disagreed with Mr. Zhong’s decision to forward the text message to his family at all, even if it had been accompanied by a disclaimer. The Commission reinforced the principle that the confidentiality provision of the Act must be taken very seriously and is a critical part of the efficient functioning of a board of education.
The Commission’s decision in this case should serve as a warning to all board of education members that their obligations under the School Ethics Act are in effect at all times, whether they are at a board meeting or on vacation, using a board of education e-mail address or a private cell phone. It is important for board members to bear in mind that anything posted to social media or sent via text message or e-mail can be disseminated to countless unintended recipients and immortalized in a matter of minutes.
Board of education members are encouraged to contact legal counsel prior to the posting or electronic sending of any confidential information or if there are any questions as to whether specific information qualifies as “confidential.” Additionally, although certainly difficult, board of education members must remember that their role as a family member and their role as a board of education member must be kept distinctly separate.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Anthony P. Sciarrillo of Sciarrillo Cornell at firstname.lastname@example.org.