N.J. school board member facing ethics complaint over Facebook post asking for opinions on tax hike files lawsuit

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A South Jersey school board member’s social media post was intended to start a community conversation. Instead, it sparked a lawsuit about constitutional free speech rights.

In April, Alloway Township school board member Gail Nazarene posted a question on her Facebook page that asked people in town their opinion on a proposed tax increase for school expenses. A fellow board member filed a complaint with the New Jersey School Ethics Commission.

The complaint alleges that the Facebook posts created confusion and concern among members of the public, and conveyed the impression that Nazarene was speaking on behalf of the board without authorization.

Nazarene disputed that, and said decisions about taxes should be made by the people, not just a small group of individuals.

“I should be on board with what my neighbors want. It’s important to be community, not just self,” she said.

Nazarene said she was told by a school board official that her Facebook post was disappointing, and that it was similar to yelling fire in a movie theater.

“I didn’t really know how to respond to that,” she said. “I couldn’t equate that asking questions of people would be equivalent to standing in the middle of a place and telling someone that the building is on fire.”

A short time later, she was told that she should not post anything on Facebook.

The ethics complaint is currently pending before the commission, but Daniel Zahn, an attorney for the Foundation for Individual Rights and Expression, has filed a pre-enforcement challenge.

“She is no longer talking to her constituents about school board issues,” Zahn said. “In order to alleviate that chill and allow Gail to confidently speak to her constituents about school issues without fearing punishment from the state, we have filed suit.”

He said that for years the commission has interpreted New Jersey’s School Ethics Act to mean that all elected school board members should be prohibited from speaking to constituents online about issues that are pending or could possibly come before the board.

He said, in the past, when school board members asked questions or made comments about issues related to the school district, they have been reprimanded,  censured, suspended or removed from the school board.

“The key issue is that democracy and the First Amendment require elected officials to be able to communicate with their constituents,” Zahn said. “The founders didn’t believe in taxation without representation. It seems tough to think that we should tolerate representation without communication, especially about taxation.”

Nazarene said she feels strongly about free speech.

“We have a right to speak in this country, people died so that we can speak in this country,” she said. “We’re Americans and we have a constitution and that constitution is really important.”

Zahn said that, in the past, several school board members have appealed decisions made by the School Ethics Commission to censure them for asking questions or expressing opinions, but the Commissioner of Education has denied such appeals. He said he believes Nazarene’s is the first legal challenge that’s been made that focuses on how the School Ethics Act is being used to muzzle First Amendment rights.

Nazarene said she ran for the board of education to improve the struggling school system in town, and because she was not happy with the lack of information.

“I received more votes than any other school board member,” she said. “I think it’s because I knocked on doors, people saw my face, they saw that I had integrity and wasn’t going to hide.”

She said she prayed “long and hard” before deciding to file a lawsuit with the Foundation for Individual Rights and Expression.

“If we don’t have a voice, we will never survive,” she said. “We’re going to be overrun by the government if we don’t stand up and say something. New Jersey, you can’t do this. You are not the end-all, be-all of the law, you are not the one that tells people when they can and cannot speak.”

A spokesman for the state Department of Education and the School Ethics Commission declined to comment on the case.

In mid-December, the U.S. District Court for the District of New Jersey is expected to consider the request for a preliminary injunction that would prevent the commission and the state Commissioner of Education from using the School Ethics Act to punish Nazarene.