State of New Jersey

OFFICE OF ADMINISTRATIVE LAW

ORDER ON MOTION FOR

INVOLUNTARY DISMISSAL
OAL DOCKET NO. EEC 15476-19
AGENCY DKT. NO. C13-19
IN THE MATTER OF
ERIC HIBBS, MARLBORO BOARD
OF EDUCATION, MONMOUTH COUNTY.
_____________________________________

Sadia Ahsanuddin, Deputy Attorney General, for petitioner (Gurbir S. Grewal, Attorney
General of New Jersey, attorney)

David B. Rubin, Esq., for respondent (David B. Rubin, P.C., Attorney at Law, attorneys)

BEFORE JACOB S. GERTSMAN, ALJ t/a:

STATEMENT OF THE CASE

This matter arises from a decision in which petitioner, School Ethics Commission (SEC or
Commission) found probable cause to credit a complaint alleging violations of the School Ethics
Act, N.J.S.A. 18A:12-22 to -34, by respondent Eric Hibbs (Hibbs), Superintendent of the Marlboro
Township School District (District). Specifically, the Commission alleges that Hibbs used his official
position to secure unwarranted employment for Dana Blair (Blair) as Director of Special Services
for the District, in violation of N.J.S.A. 18A:12-24(b), and that Hibbs’ personal involvement in the
hiring of Bernard Bragen (Bragen), with whom the SEC further alleges that Hibbs had a past
business relationship, as Dana Blair’s paid mentor, violated N.J.S.A. 18A:12-24(c).

New Jersey is an Equal Opportunity Employer

OAL DKT. NO. EEC 15476-19

As part of this matter, and after the Commission put on its case before the Office of
Administrative Law (OAL), Hibbs filed a motion for judgment of involuntary dismissal, arguing
that the complaint against him should be dismissed because the Commission has failed to
present sufficient evidence to meet its burden of proof that Hibbs violated the School Ethics Act.

PROCEDURAL HISTORY

On March 4, 2019, Craig Marshall (Marshall), a former member of the Marlboro

Township Board of Education (Board), filed with the SEC a complaint alleging that Hibbs
violated the School Ethics Act (The Act). According to Marshall’s allegation, while Hibbs’
educational consulting firm, AME Educational Consultants (AME), was employed by the Hazlet
Township Public Schools, Hibbs “retained the Hazlet Superintendent (Bernard Bragen) as an
‘educational consultant’ to mentor a ‘newly hired employee’ for the District (Dana Blair),” who
“was hired as Director of Special Services despite having ‘minimal experience as an
administrator and no experience or certification in Special Education,’ and notwithstanding that
she applied for a different position in the District.” Marshall further alleged that Hibbs, “when
recommending Dr. Bragen for the education consultant position in the District, failed to disclose
that AME was employed/retained by Hazlet.” Thus, according to Marshall,

by failing to disclose ‘his company’s mutually beneficial

position . . . in Hazlet . . . when he recommended retaining the
Hazlet Superintendent to oversee and mentor’ Ms. Blair, and
recommending an individual (Ms. Blair) ‘with little administrative
experience nor certification, to serve as the lead administrator
for the District’s educational programs and services for our
most vulnerable students, [Hibbs] violated N.J.S.A. 18A:12-
24(b) and N.J.S.A. 18A:12-24(c).1

1 Hibbs had filed a motion to dismiss in lieu of answer with the SEC, which granted the motion in part and
dismissed several other allegations made by Marshall. However, the SEC denied the motion with respect to
the allegations described herein.

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In response, Hibbs denied any wrongdoing. According to Hibbs, “although Ms. Blair did
not specially apply for the position of Director of Special Education, she did interview for a
different position in the District, and because the interview committee was impressed with her
leadership qualities, they recommended that she apply for the Director of Special Education
position.” Hibbs also contended that “Ms. Blair ‘was appropriately certified’ and, although she
admittedly did not have experience as a special education director per se, ‘she had the
executive skills’ needed for the position, and [Hibbs] ‘was confident that with proper mentoring
she would succeed in her new role.’”

Hibbs also maintained that, with respect to the hiring of Bragen, “it was the [Marlboro
Business Administrator/Board Secretary (BA/BS)], and not [Hibbs], who recommended [Bragen]
as a mentor because [the BA/BS] had ‘been impressed by him at a speaking engagement.’”
Hibbs further argued that the Board “subsequently interviewed Dr. Bragen, was satisfied with his
credentials, and appointed his firm,” and that “’at no time did the consulting relationship between
[AME] and . . . Hazlet . . . play any part in the appointment of [Bragen’s] firm.’”

In finding probable cause for Hibbs’ alleged violations of the School Ethics Act, the SEC
noted that under N.J.S.A. 18A:12-24(b), “[n]o school official shall use or attempt to use his official
position to secure unwarranted privileges, advantages or employment for himself, members of
his immediate family or others[,]” and that, under N.J.S.A. 18A:12-24(c), “[n]o school official shall
act in his official capacity in any matter where he, a member of his immediate family, or a business
organization in which he has an interest, has a direct or indirect financial involvement that might
reasonably be expected to impair his objectivity or independence of judgment” and “[n]o school
official shall act in his official capacity in any matter where he or a member of his immediate family
has a personal involvement that is or creates some benefit to the school official or member of his
immediate family[.]”

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As for the alleged violation of N.J.S.A. 18A:12-24(b), the SEC stated:

If [Marshall] can prove that [Hibbs] used his position to secure

‘unwarranted’ employment for [Ms. Blair] who [Hibbs] admits did not
apply for the position for which she was hired in the District, a
violation of N.J.S.A. 18A:12-24(b) may be established. Whether the
recommendation to hire Ms. Blair emanated from the interview
committee (as [Hibbs] claims) or from [Hibbs] (as [Marshall] alleges),
are factual questions to be borne out in a hearing.

Regarding the alleged violation of N.J.S.A. 18A:12-24(c), the SEC stated:

If [Marshall] can prove that [Hibbs’] actions in hiring (or

recommending) Dr. Bragen to serve as an educational consultant
in the District was a quid pro quo for the fact that Hazlet had
previously retained AME, and thus constituted [Hibbs’]
involvement in a matter in which [Hibbs] had a direct or indirect
financial involvement that impaired his objectivity, and/or one in
which he had a personal involvement that created a benefit to an
‘other,’ a violation of N.J.S.A. 18A:12-24(c) may be established.
Whether the decision to hire Dr. Bragen originated from the
BA/BS (as [Hibbs] claims) or from [Hibbs] (as [Marshall]
contends), are factual questions to be borne out in a hearing.

As a result of the SEC’s finding of probable cause, the agency on November 4, 2019,
transmitted the matter to the Office of Administrative Law (OAL) for a contested case hearing.2
On May 1, 2020, Hibbs filed a motion for summary decision dismissing the complaint against
him. On September 2, 2020, upon consideration of Hibbs’ motion papers and the SEC’s
opposition papers, the undersigned issued an order denying Hibbs’ motion, finding that there
were genuine issues of material fact necessitating a hearing to determine if, and to what extent,
Hibbs violated the School Ethics Act.

2 Under the rules implementing the School Ethics Act, “[u]pon a finding of probable cause, the complainant
shall no longer be a party to the complaint. Where the Commission transmits a complaint to the OAL . . . the
attorney for the Commission shall prosecute those allegations in the complaint which the Commission found
probable cause to credit.” N.J.A.C. 6A:28-10.7(b)(1).

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A hearing was held on January 14, January 15, and January 22, 2021. As the party with
the burden of proof, the SEC proceeded with its case first. At hearing, the following individuals
testified on behalf of the SEC: Christopher Mullins, Hazlet Township Public Schools Business
Administrator/Board Secretary (BA/BS); Samuel Hendrickson, a former Principal and Director of
Human Resources for the District; Robert Klein, a former Director of Special Services for the
District; Jonathan Hart, a former Director of Human Services for the District; Jennifer Zona, a former
Director of Special Services for the District; Vincent Caravello, the BA/BS for the District; Dara Enny,
former Board member; and, Ellen Xu, former Board member.

HIBBS’ MOTION FOR INVOLUNTARY DISMISSAL

On January 30, 2021, after the close of the SEC’s case, Hibbs filed a motion for involuntary
dismissal. In a supporting brief, Hibbs argues that involuntary dismissal is appropriate because
the SEC has failed to meet its burden of proving that he violated the School Ethics Act and that, as
a result, there is no need for him to put on his case. Hibbs argues that the SEC did not elicit any
testimony showing that Hibbs’ actions with respect to the employment of Blair as Director of Special
Services violated N.J.S.A. 18A:12-24(b) or that Hibbs’ actions regarding the retention of Bragen as
Blair’s mentor violated N.J.S.A. 18A:12-24(c).

First, Hibbs contends that the testimony shows that, although Blair’s hire as Director of
Special Services may have been unconventional, given her lack of special education experience
and the fact that she did not directly apply or interview for that position, her employment was not
unwarranted, because she possessed the necessary credentials, and leadership and
interpersonal skills, that would make her a good fit for the position, especially with guidance from a
mentor with special education experience. Moreover, according to Hibbs, the testimony proves
that it was Ballone, and not Hibbs, who first suggested the idea of hiring Blair as Director of Special
Services after her impressive interview for the vacant principal position.

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Second, Hibbs maintains that there is also “no evidence of any actual or attempted quid
pro quo” in connection with the retention of Bragen as Blair’s mentor. Hibbs notes that “Bragen
left Hazlet in December 2017, six months before his firm’s engagement in Marlboro,” and that
“[n]early a year had passed since AME performed any work in Hazlet, and Bragen had nothing
to offer Hibbs as of June 2018.” [Hibbs Brief in support of motion (Hibbs Brief) at 14.] According
to Hibbs, both Hibbs’ answers to interrogatories and a certification from former BA/BS Cindy
Barr-Rague show that it was Barr-Rague, and not Hibbs, who came up with the idea of hiring
Bragen as Blair’s mentor.

Thus, Hibbs argues that the SEC’s case should be dismissed because there is no evidence
that Hibbs violated the School Ethics Act through an “unethical conspiracy” in which he
“recommended Blair, an unqualified candidate, to fill a vacancy as Director of Special Services to
create an otherwise-unnecessary mentorship opportunity for Bragen’s firm.” (Hibbs Brief at 4.)

On April 26, 2021, the SEC submitted a brief in opposition to Hibbs’ motion.3 First, the SEC
argues that “[t]he testimonial evidence, together with the exhibits, demonstrates that Hibbs granted
unwarranted employment to Blair, an unqualified individual for the position of Director of Special
Services, in breach of the public trust,” and in violation of N.J.S.A. 18A:12-24(b). [SEC Brief in
opposition to motion (SEC Brief) at 1.] Second, the SEC contends that there is sufficient evidence
showing that, in violation of N.J.S.A. 18A:12-24(c), “Hibbs had a long-standing business
relationship with Bragen, which culminated in a year-long contract to mentor Blair, when no former
employee required an independent contractor to train them for their position.” Ibid.

Finally, in a reply brief submitted on May 17, 2021, Hibbs reiterates his position that the
testimony shows that involuntary dismissal is appropriate, and states that the SEC brief “either
takes out of context, or at times, completely misstates the record being cited.” He added that “at
[o]ther times, counsel relies on hearsay or other objectional testimony to which I raised objections
that Your Honor sustained.” (Hibbs Reply Brief at 1.)

3 The lengthy delay in the filing of the SEC’s opposition to Hibbs’ motion was due to its request, to submit its
response after counsel had the opportunity to review the transcript of the hearing.

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FACTUAL DISCUSSION

TESTIMONY

Christopher Mullins (Mullins), the BA/BS for Hazlet, verified that Hazlet, as reflected
in Exhibit J-1, paid Hibbs and/or AME $18,500 for services rendered between September 2016
and August 2018.

Samuel Hendrickson (Hendrickson), a former Principal and Director of Human

Resources for the District, served on the committee that interviewed Blair for a vacant principal
position in 2018. The interview committee also included Hibbs, Hart, and Ballone, who was
then the Director of Curriculum & Instruction. Although the principal position ultimately went to
another individual, Hendrickson thought Blair “was a viable candidate” for the principal position
due to her education, experience, and training. (TT1 62:13.)

Hendrickson “recall[ed] at the end of the one day of interviewing Mr. Ballone put forth the
idea that Dana Blair would be a fit for the vacancy of Director of Special Education” due to her
intelligence and leadership qualities. (TT1 63:19-22.) Hendrickson was “surprised” by Ballone’s
suggestion because Hendrickson “didn’t at the time think she met . . . the kind of qualifications and
criteria that we were looking for in a Director of Special Education” (TT1 66:2-5) and Blair’s
background “was a really big contrast . . . in terms of the kind of qualifications and experiences”
(TT1 67:23-25) of the two prior individuals who held that position for the District. Hendrickson noted
that Blair lacked experience with special education matters such as Individualized Education Plans
for students and due process hearings between parents and a school district. However,
Hendrickson acknowledged that Blair had the necessary certifications to serve in the position.

Hendrickson recalled that Hibbs “kind of thought about [Ballone’s suggestion of Blair
as Director of Special Education]” and “seemed to like the idea” (TT1 66:21-24) and “it
became clear that . . . this was the candidate that he wanted to move forward too and he
was excited about her candidacy.” (TT1 84:8-11.) Hendrickson testified that Blair did not

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specifically interview for the Director of Special Education position, and that none of the
people who applied for the job were interviewed.

Hendrickson stated that Hibbs “brought the idea about having a ‘mentor’” (TT1 79:25) for
Blair, and although Hendrickson was initially skeptical of Blair’s candidacy for the special education
position, he stated that “ultimately me and the other[s] that were on that panel concluded that she
would be a good candidate again with the caveat of a mentor, but we were really excited about her
leadership capacity and . . . what we thought was her ability to move the department in the direction
the District wanted to.” (TT1 84:13-18.) Hendrickson “represented to the Board I supported the
candidacy of Dana Blair for the Director of Special Education” (TT1 89:1-3) and “further
encouraged the Board’s agreement to go forward with a mentor.” (TT1 112:14-15.)

According to Hendrickson, Hibbs did not initially name a specific mentor, and “it was a later
conversation where he mentioned the name Dr. Bernie Bragen.” (TT1 80:5-6.) That was the first
time Hendrickson had heard of Bragen. However, Hendrickson conceded on cross-examination
that he did not know where the idea originally came from to recommend Bernard Bragen’s firm to
be hired by the District and could not refute the proposition that Cindy Barr-Rague, the District’s
BA/BS in 2018, suggested Bragen to Hibbs. Hendrickson stated that Blair was “the first
administrator in my time there that required or that received a paid mentor.” (TT1 87:22-23.)

Robert Klein (Klein), is a former Director of Special Education for the District who left
his position on August 31, 2017. His major responsibility was the child study teams, which
he supervised, evaluated, collaborated with, and helped guide them in their decision making.
According to Klein, he did not have a mentor for his last position with the District but did have
a mentor when he began his employment because he had “an eligibility for principal
certificate and I needed, by code, by regulation, to have a mentor to make that into a standard
certificate.” (TT2 98:22-25.)

Klein recalled that in the fall of 2016, Bragen “presented an in-service to my

department,” because Hibbs “basically imposed” Bragen on him. (TT1 156:9, 13.)

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Jonathan Hart (Hart), was Director of Human Services for the District between October
2015 and June 30, 2018. He was responsible for recruiting, interviewing, and hiring staff, and
oversaw the mentoring program.

Hart recalled that Blair’s predecessor as Director of Special Education, Jennifer Zona,
underwent two interviews prior to her hire. The second interview included a discussion of a sample
IEP. Hart was part of the interview committee who considered Blair for the principal position. He
considered Blair “a very strong candidate with previous leadership experience.” (TT2 34:15-16.)

As for the Director of Special Services position, Hart described the necessary
qualifications as “leadership experience,” “knowledge of the operations of schools,” and the
ability to “work collaboratively and productively with staff, students . . . and be a good member
of the administrative team.” (TT2 33:15-25.) Hart also considered Blair as a strong candidate
for the director position because “she demonstrated very strong leadership skills when we had
interviewed her for the elementary principal position” and those skills “would serve her well in
any school leadership position.” (TT2 36:15-19.)

Hart testified that, once the interview committee decided on Blair for Director of Special
Services, “[t]here was an executive session where there was a discussion with the Board of
Education about [Blair’s] candidacy, about appointing her a mentor, and then there was an
opportunity for the Board to ask questions and meet Dr. Blair as a candidate.” (TT2 40:16-20.)
He did not know who came up with the idea to have Bragen mentor Blair.

In light of Zona’s resignation in May 2018, Hart conceded on cross-examination that the
District wanted to fill the Director of Special Services position as quickly as possible because
the special education program requires a lot of work in the summer. He also stated that, in
Blair, “we had found a qualified candidate and [there was a risk that] should we drag our feet
or wait longer, that she would seek other positions.” (TT2 67:23-25, 68:1.) Hart could not think
of any law preventing the District from circumventing a traditional hiring process in order to offer
Blair the director position.

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Jennifer Zona (Zona), was Blair’s predecessor as Director of Special Services for the
District and served in that position for a year. She described her duties as compliance with all
the legal requirements for the IEP, supervise the instructional activities involving the full
continuum of services and programming, the annual budget, and supervised the faculty within
the department of special services. Zona did not have a mentor from outside the District to train
her for her position. She held several certificates in special education and she had served as the
supervisor of special education in another district prior to her employment with Marlboro.

Dara Enny (Enny), served as a Board member from January 2014 to January 2020.
She first heard of Bragen and Blair shortly before a June 12, 2018, Board meeting. Ahead of
the meeting she was given notes on each candidate. The notes for Blair indicated that she
had applied for the principal position, but that Hibbs “felt that she was the most qualified person
for the job of Director of Special Ed with Dr. Bragen as the mentor.” (TT3 17:19:21.) The notes
on Blair also stated that she did not have special education experience, and Enny wondered
how somebody without special education experience could fulfill the responsibilities of Director
of Special Services. Finally, the notes on Blair stated that “she can bring people together and
that’s what we need and the other stuff will come in time.” (TT3 18:19:21.)

Enny described the June 12, 2018, Board meeting at which Hibbs, Ballone, Hart, and
Hendrickson spoke in support of her candidacy. At another Board meeting the following week,
the Board met with Blair, and then convened an executive session in which they discussed her
qualifications. There was concern among the members about her lack of special education
experience, but “Hibbs said that Dr. Bragen was there to help her along, that he was going to
be her mentor and that everybody coming into any position in our township . . . gets a mentor.”
(TT3 28:20-23.) Hibbs also said that “he felt that [Blair] was the most qualified.” (TT3 35:1.)

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Enny “knew that [Blair] didn’t have the right qualifications,” but voted against her hire
“because of the process, not the person,” that is, Enny was “totally against the process of
only bringing in one person” during the hiring process for Director of Special Services. (TT3
33:4-8.) She also noted that during the regular session of the Board meeting, there were
parents who also raised concerns about Blair’s lack of special education experience.

As for Bragen, the notes Enny received on him included his special education background
and why he would make a good mentor. At the June 12th Board meeting, another member asked
Hibbs if Bragen would be paid as a mentor, to which Hibbs replied that Bragen would be paid
$12,000, but that there would also be $37,000 in savings from the salary of the new Supervisor of
Special Services. Enny recalled that the Board “liked Dr. Bragen” and that she thought “wow . . .
can he be our director?” (TT3 29:1-7.) However, she did not vote to hire Bragen, because like with
Blair, “not the person, the process.” (TT3 34:13-14.)

Enny testified that Hibbs did not disclose to the Board his business relationship with
Hazlet. Enny also testified on cross-examination about her concern about the extent of special
education litigation between parents and the District due to “the District not doing what they
should do for special needs children and them fighting everybody every step of the way,” (TT3
62:12-14) and conceded that one quality in a Director of Special Services would be interpersonal
skills to help avoid such litigation. Additionally, she conceded that she voted to renew Blair’s
contract a year later since “it was just easier at that point to just go along with it and it was just
easier for me.” (TT3 41:18-19.)

Ellen Xu (Xu), was a Board member from January 2016 to January 2019. Like Enny,
Xu testified that Hibbs represented to the Board that Blair was “the most qualified candidate,”
and that although she did not have the “relevant experience,” the prospect of hiring Bragen,
with extensive special education experience, as her mentor, “give us some confidence that she
might be able to handle this position.” She voted “yes [for Blair] with doubts in my mind.” (TT3
99:8,16; 100:10-11; 127:1.)

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When Xu met Bragen at a Board meeting, she asked him if he had similar mentor
experience as the proposed arrangement with Blair, to which Bragen responded yes. He also
told Xu that he could help Blair with “information and input” and that he expected the mentorship
to last one year. Xu did not “remember having any time that we had to approve . . . [a] set up”
like the one between Blair and Bragen. (TT3 107:18-19.)

Xu testified that Hibbs did not inform the Board about AME or his business relationship
with Hazlet.

LEGAL ANALYSIS AND CONCLUSIONS

I. Standard for Motion for Judgment of Involuntary Dismissal

In an administrative hearing, if the party with the burden of proof proceeds first, the
respondent may rely on R. 4:37-2(b) to move for involuntary dismissal at the close of the
petitioner’s case “on the ground that upon the facts and upon the law the [petitioner] has shown
no right to relief.” 37 New Jersey Practice, Admin. Law & Practice, § 5.19 (Steven L. Lefelt,
Anthony Miragliotta & Patricia Prunty) (2d ed. 2000); R. 4:37-2(b).4 The applicable standard
for a motion for judgment of involuntary dismissal is “whether ‘the evidence, together with the
legitimate inferences therefrom, could sustain a judgment in favor’ of the party opposing the
motion, i.e., if, accepting as true all the evidence which supports the position of the party
defending against the motion and according him the benefit of all inferences which can
reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion
must be denied.” Dolson v. Anastasia, 55 N.J. 2, 5 (1969) [quoting R. 4:37-2(b)].

4 The UAPR does not include a rule pertaining to a motion for involuntary dismissal. However, under N.J.A.C.
1:1-1.3(a), “[i]n the absence of a rule, a judge may proceed in accordance with the New Jersey Court Rules,
provided the rules are compatible with these purposes.” Since R. 4:37-2(b), which may serve the interests
of time and expense, is compatible with the UAPR’s purpose “to achieve just results, simplicity in procedure,
fairness in administration and the elimination of unjustifiable expense and delay,” N.J.A.C. 1:1-1.3(a), Hibbs’
motion for involuntary dismissal, and the application of R. 4:37-2(b) in deciding his motion, is appropriate.

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In considering a motion for involuntary dismissal, a judge “is not concerned with the worth,
nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most
favorably to the party opposing the motion.” Id. at 5-6. Crucially, “[a] motion for involuntary
dismissal only should be granted where no rational [factfinder] could conclude that the plaintiff
marshaled sufficient evidence to satisfy each prima facie element of a cause of action.” Godfrey
v. Princeton Theological Seminary, 196 N.J. 178, 197 (2004) (citations omitted). In this matter, the
Commission has the burden of proving by a preponderance of the credible evidence that Hibbs
violated the School Ethics Act.

II. The School Ethics Act

The School Ethics Act recognizes that school board members and administrators must
“hold the respect and confidence of the people,” and is thus designed to prevent school officials
from engaging in “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(a). To serve
this goal, the law and its implementing regulations, N.J.A.C. 6A:28-1.1 to -11.1, require school
officials to avoid certain conflicts of interest, N.J.S.A. 18A:12-24, and task the School Ethics
Commission with “enforcing those ethical standards through a procedure for reviewing
complaints of ethical violations, investigating those complaints and ultimately rendering
recommendations to the Commissioner [of Education] as to the imposition of sanctions when
violations are demonstrated.” N.J.A.C. 6A:28-1.1(b).

The prohibited conflicts of interest at issue in this matter are found at N.J.A.C. 18A:12-
24(b) and (c). The former provision states that:“[n]o school official shall use or attempt to use
his official position to secure unwarranted privileges, advantages or employment for himself,
members of his immediate family or others.” While under the latter provision,

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No school official shall act in his official capacity in any matter where
he, a member of his immediate family, or a business organization in
which he has an interest, has a direct or indirect financial
involvement that might reasonably be expected to impair his
objectivity or independence of judgment. No school official shall act
in his official capacity in any matter where he or a member of his
immediate family has a personal involvement that is or creates some
benefit to the school official or member of his immediate family.

If a person files a complaint alleging the violation of the School Ethics Act, “the Commission
shall decide by majority vote whether probable cause exists by determining whether there is a
reasonable ground of suspicion supported by facts and circumstances strong enough in
themselves to warrant a reasonable person to believe that the Act has been violated.” N.J.A.C.
6A:28-10.7(b). If the Commission finds probable cause, “the complainant shall no longer be a
party to the complaint” and “[w]here the Commission transmits a complaint to the OAL . . . the
attorney for the Commission shall prosecute those allegations in the complaint which the
Commission found probable cause to credit.” N.J.A.C. 6A:28-10.7(b)(1).

At an OAL hearing, which is conducted pursuant to the Uniform Administrative Procedure

Rules (UAPR), N.J.A.C. 1:1-1.1 to -21.6, the Commission has the burden of proving by a
preponderance of the evidence that a school official violated the School Ethics Act. A school official
who is found to have committed an ethical violation may be subject to sanctions, including
“reprimand, censure, suspension, or removal of the school official.” N.J.S.A. 18A:12-29(c);
N.J.A.C. 6A:28-10.12(a).

III. The alleged violation of N.J.S.A. 18A:12-24(b)

While it is not clear from the School Ethics Act who falls within the ambit of “others” under
N.J.S.A. 18A:12-24(b), the SEC, the Agency charged with enforcing the ethics law, has advised
that “any individual can be an ‘other’” when considering the applicability of that provision.
Specifically, under Advisory Opinion, A24-17 (September 26, 2017), https://www.nj.gov/education
/legal/ethics/advisory/, the SEC explained that “[a]lthough ‘others’ is not defined by the Act, any
individual can be an ‘other,’” and “[f]or these ‘others,’ a school official is prohibited from using

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his/her official position to secure an unwarranted privilege, advantage or employment.”5 Thus,

although there is no evidence that Hibbs and Blair are related, or even knew each other prior
to her interview for the principal position, Blair – as “any individual” - qualifies as an “other” for
purposes of N.J.S.A. 18A:12-24(b). As such, and in light of the standard for involuntary dismissal,
the question becomes whether the SEC has presented any evidence Hibbs used his position as
superintendent to secure “unwarranted” employment for Blair.

There is insufficient evidence that Hibbs violated N.J.S.A. 18A:12-24(b) with respect to the
circumstances leading to Blair’s employment as Director of Special Services. In transmitting this
matter to the OAL for a hearing, the SEC specifically stated that, in determining if Hibbs violated
N.J.S.A. 18A:12-24(b), “[w]hether the recommendation to hire Ms. Blair emanated from the
interview committee . . . or from [Hibbs] . . . are factual questions to be borne out in a hearing.” At
the hearing, the SEC’s own witnesses, Hendrickson and Hart, testified that it was Ballone, and not
Hibbs, who first suggested the idea of hiring Blair as Director of Special Services.6 The SEC did
not present any other evidence showing that Hibbs came up with the idea to hire Blair.

Moreover, the SEC presented insufficient evidence that Blair’s hiring was unwarranted.
As argued by Hibbs in his brief supporting his motion, although Blair’s hire as Director of Special
Services may have been unconventional, given her lack of special education experience, and
the fact that she did not directly apply or interview for that position, the testimony failed to
establish that her employment was unwarranted. Instead, the testimony from Hendrickson and
Hart indicated that she possessed the necessary credentials, and leadership and interpersonal
skills, that would make her a good fit for the position, especially with guidance from a mentor
with special education experience. Although Blair’s two predecessors did not have a mentor
like Bragen, the fact that the interview committee – Hibbs, Ballone, Hendrickson, and Hart –
thought that Blair needed a mentor for at least the first year of her employment also does not
lead to the conclusion that Blair’s hire was unwarranted.

5 Under the School Ethics Act, “[a] school official may request and obtain from the commission an advisory
opinion as to whether any proposed activity or conduct would in its opinion constitute a violation of the
provisions of this act.” N.J.S.A. 18A:12-31.
6 It should be noted that “Michael” Ballone is the “M” in AME.

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Finally, the SEC also did not present any credible evidence linking Hibbs’ support of
Blair’s candidacy to some sort of scheme to secure a paid mentorship for Bragen. Neither the
testimony nor exhibits submitted by the SEC supports this notion.

In sum, the Commission failed to make a prima facie case showing that Hibbs violated
N.J.S.A. 18A:12-24(b), such that he used his position as superintendent to secure unwarranted
employment for Blair, that Hibbs had a relationship with Blair that created a conflict of interest
in recommending her to the Board for employment, or that Hibbs recommended Blair to the
Board as pretext for retaining Bragen. The testimony confirmed that the suggestion to hire
Blair came from Ballone and that all four members of the interview committee, not just Hibbs,
ultimately thought Blair was the right choice for the job. As Xu testified, although Blair did not
have the “relevant experience” in terms of special education, the prospect of hiring Bragen,
with extensive special education experience, as her mentor, “give us some confidence that she
might be able to handle this position,” (TT3 100:10-11) and the Board voted in favor of Blair’s
employment as Director of Special Services. In the absence of a conflict of interest, it would
be inappropriate here to second guess Hibbs’ managerial prerogative to recommend to the
Board an outside-the-box hire for Director of Special Services.

Accordingly, I CONCLUDE that the testimony and exhibits presented by the

Commission fail to establish a prima facie case that Hibbs violated N.J.S.A. 18A:12-24(b) by
using his position as Superintendent to secure unwarranted employment for Dana Blair as
Director of Special Services.

IV. The alleged violation of N.J.S.A. 18A:12-24(c)

As noted above, the School Ethics Act is designed to prevent school officials from
engaging in “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(a). Thus,
under N.J.S.A. 18A:12-24(c),

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No school official shall act in his official capacity in any matter where
he, a member of his immediate family, or a business organization in
which he has an interest, has a direct or indirect financial
involvement that might reasonably be expected to impair his
objectivity or independence of judgment. No school official shall act
in his official capacity in any matter where he or a member of his
immediate family has a personal involvement that is or creates some
benefit to the school official or member of his immediate family.

There are few published administrative or judicial cases in which, like here, a school
official was alleged to have violated N.J.S.A. 18A:12-24(c) by acting in a matter involving a
non-family member. However, in Sch. Ethics Comm’n v. Famularo, EEC 2723-97, Dkt. No.
C23-96 (February 24, 1998),7 the Commission determined that a school board member,
James Famularo, violated N.J.S.A. 18A:12-24(c), when he moved and voted in favor of hiring
as a principal within the school district Albert Reinoso, for whose political campaign Famularo
had served as an unpaid treasurer six months before the school board vote.

In that case, the Commission explained that, in finding a violation under N.J.S.A. 18A:12-
24(c), “the determinative factor is the public’s perception and not the school official’s belief as to
whether he could participate in a matter objectively,” and that “[t]he violation is based on an actual
relationship that a reasonable person would expect to create a conflict of interest.” Thus, as the
Commission noted in Famularo, “[t]he issue is whether respondent acted in his official capacity in
a matter in which he had a personal involvement that might reasonably be expected to impair his
objectivity.” Even if “Mr. Famularo may have believed that he was voting for the best candidate
when he voted for Mr. Reinoso,” he should have abstained from the matter “if the public would
reasonably expect that the motion and vote were tainted by his personal involvement.”

The Commission concluded that “Mr. Famularo’s position as Mr. Reinoso’s campaign
treasurer created a personal involvement that might reasonably be expected to impair his
objectivity in making and supporting the motion for Mr. Reinoso’s appointment to the position of
principal.” According to the Commission, “Mr. Famularo’s service with Mr. Reinoso’s campaign

7 This decision is publicly available at https://www.nj.gov/education/legal/ethics.

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as his campaign treasurer created a justifiable impression among the public that Mr. Famularo’s
support of his appointment to the position of principal was based more on his political ties to Mr.
Reinoso, than Mr. Reinoso’s qualifications as a principal.” The Commission also “reject[ed] the
argument that the six-month lapse between Mr. Famularo’s service as campaign treasurer and
the vote in question was enough time to dilute any reasonable suspicion of favoritism.”

Here, as in Famularo, the issue is whether, in connection with Bragen’s hire as Blair’s
paid mentor, Hibbs acted in his official capacity as Superintendent in a matter in which he had
a personal involvement that might have been reasonably expected to impair his objectivity, in
violation of N.J.S.A. 18A:12-24(c). On this count, the evidence, together with the legitimate
inferences therefrom, could sustain a judgment in favor of the Commission and, as such, Hibbs’
motion must be denied in part.

The factual question the Commission presented in its Decision on Probable Cause was
whether Hibbs or the former BA/BS initially suggested Bragen as a mentor for Blair. At the hearing,
Hendrickson testified that Hibbs “brought the idea about having a ‘mentor’” (TT1 79:25) for Blair,
and that although Hibbs did not initially name a specific mentor, “it was a later conversation where
he mentioned the name Dr. Bernie Bragen,” (TT1 80:5-6) and that it was the first time Hendrickson
had heard of Bragen. While Hendrickson conceded on cross-examination that he did not know
from whom the idea to hire Bragen as a mentor originally came and he could not refute the
proposition that Cindy Barr-Rague, the District’s BA/BS in 2018, suggested Bragen to Hibbs,
Hendrickson’s testimony, unopposed, could lead reasonable minds to conclude that the idea to
hire Bragen originally came from Hibbs.

While Hibbs notes that the Commission submitted as an exhibit Hibbs’ answers to the
Commission’s interrogatories, which included Hibbs’ statement that “Cindy Barr-Rague made
the formal recommendation to utilize Dr. Bragen as a mentor for Dr. Blair and that the idea was
not mine at all,” that “Cindy Barr-Rague certified that Dr. Bragen was her idea,” (P-36 at 2-3)
and that “the recommendation to engage Dr. Bragen in June 2018 came not from him but from
Board Secretary/School Business Administrator Cindy Barr-Rague after she and Assistant

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Business Administrator Chris Jelinsky attended a speaking engagement where Bragen was
presenting” (Reply Brief at 9, P-36 at 21), any such statement or certification cannot substitute
for live testimony subject to cross-examination. In other words, the existence of Hendrickson’s
testimony regarding the origin of the idea of Bragen’s hire – that, as a member of the interview
committee, he first heard the idea of Bragen as a mentor from Hibbs - when viewed most
favorably to the Commission is sufficient to deny Hibbs’ motion with respect to the issue of
whether he violated N.J.S.A. 18A:12-24(c).

Also informing the issue of whether Hibbs violated N.J.S.A. 18A:12-24(c), is the testimony
from Enny and Xu that Hibbs did not disclose his past business relationship, through AME, with
Hazlet, to the Board when recommending Bragen’s hire. While Hibbs argues that “Bragen left
Hazlet in December 2017, six months before his firm’s engagement in Marlboro,” and that “[n]early
a year had passed since AME performed any work in Hazlet, and Bragen had nothing to offer
Hibbs as of June 2018,” (Hibbs Brief at 14), the record must be further developed to determine
whether this constitutes “enough time to dilute any reasonable suspicion of favoritism” rendering
this matter distinguishable from Famularo.

Viewed in a light most favorable to the Commission, I CONCLUDE that the testimony
presented thus far could lead reasonable minds to conclude that a preponderance of the credible
of evidence shows that Hibbs violated N.J.S.A. 18A:12-24(c). Accordingly, I FURTHER
CONCLUDE that Hibbs’ motion must be denied in part, and he now must present his case on
whether or not he violated N.J.S.A. 18A:12-24(c).

ORDER

Based on the foregoing, it is hereby ORDERED that respondents’ motion for involuntary
dismissal with respect to N.J.S.A. 18A:12-24(b) is GRANTED. It is FURTHER ORDERED that
respondents’ motion for involuntary dismissal with respect to N.J.S.A. 18A:12-24(c) is DENIED.

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This order may be reviewed by the SCHOOL ETHICS COMMISSION, DEPARTMENT

OF EDUCATION, upon interlocutory review only, pursuant to N.J.A.C. 1:1-14.10. Parties may
not file exceptions to this order after issuance of the initial decision. N.J.A.C. 1:1-14.10(l).

June 30, 2021

DATE JACOB S. GERTSMAN, ALJ t/a

JSG/nd
c: Clerk OAL-T

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APPENDIX

EXHIBITS8

Jointly:
J-1 Chart summarizing payments from Hazlet to AME and Hibbs between September
2016 and August 2018 in the total amount of $18,500
J-2 Chart summarizing payments from the Board to Bragen’s firm, Defined Learning
Solutions, between November 2016 and March 2017 in the total amount of $1,100,
and between November 2018 and June 2019 in the total amount of $12,000 for
Bragen’s work as Blair’s mentor

Petitioner:
P-1 Marlboro BOE Certification of Documents
P-2 Marlboro Township Job Posting, Principal at Frank J. Dugan Elementary School
P-3 Dana Blair Employment Application
P-4 Dana Blair Interview Questions and Notes, Principal
P-5 Job posting for Director of Special Services
P-6 Not admitted
P-7 Dana Blair Interview Sheets, Director of Special Services
P-8 Dana Blair Employment Contract
P-9 Not admitted
P-10 Jennifer Zona Employment Application
P-11 Unsuccessful Candidates for Director of Special Services 2018
P-12 Marlboro BOE Executive Session Minutes, June 19, 2018
P-13 Marlboro BOE Meeting Minutes, June 19, 2018
P-14 Marlboro BOE Video Recording of June 19, 2018 Meeting
P-15 Bernard Bragen/Defined Learning Solutions Employment Contract

8 The following reflects the exhibits entered into the record at the time of the motion. The record may be further
developed as the hearing continues.

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P-16 Bernard Bragen, Defined Learning Solutions Invoices

P-17 Bernard Bragen, Defined Learning Solutions Purchase Order
P-18 Bernard Bragen, Defined Learning Solutions Business Documents
P-19 Marlboro BOE Policy 0175, Contracts with Independent Consultants
P-20 Eric Hibbs Twitter account, post about Bernard Bragen
P-21 Hazlet Certification of Documents
P-22 New Jersey Association of School Administrators (NJASA) Committee
Assignments 2017-2018 Emails from Bernard Bragen and Eric Hibbs
P-23 Personalized Learning Workshop Sign-in Sheets
P-24 Hazlet BOE Policy 0175 – Contracts with Independent Consultants
P-25 Hazlet School District Purchase Orders, August 31, 2016, to August 1, 2018
P-26 Hazlet School District Bills and Vendor Report, September 26, 2016
P-27 Hazlet School District Bills and Vendor Report, October 24, 2016
P-28 Hazlet School District Bills and Vendor Report, January 30, 2017
P-29 Hazlet School District Bills and Vendor Report, February 27, 2017
P-30 Hazlet School District Bills and Vendor Report, March 20, 2017
P-31 Hazlet School District Bills and Vendor Report, May 8, 2017
P-32 Hazlet School District Bills and Vendor Report, June 19, 2017
P-33 Hazlet School District Bills and Vendor Report, July 31, 2017, to August 30, 2017
P-34 Hazlet School District Bills and Vendor Report, August 27, 2018
P-35 Eric Hibbs Responses to Requests for Admission
P-36 Hibbs’ Answers to Interrogatories

Respondent:
R-2 Email from Monmouth County ASBO to P. Genovese, et al., dated February 22,
2018, Forwarding Bragen PowerPoint Presentation
R-5 Complainant’s Answers to Interrogatories, dated February 26, 2020
R-6 Minutes of June 19, 2017, Hazlet Board of Education Meeting (excerpt)
R-9 Certification of Cindy Barr-Rague, dated April 24, 2019

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