Heather Garcia v. Board of Education of the Borough of Norwood, Bergen County, 01/19/2022, (#9-22)

9-22
New Jersey Commissioner of Education
Final Decision
Heather Garcia,
Petitioner,
v.
Board of Education of the Borough of Norwood,
Bergen County
Respondent.
Synopsis
The petitioner, a member of the Board of Education of the Borough of Norwood (BOE), also sits on the
Board of Trustees of the Valley Kids Matter Foundation, Inc. (VKMF), an organization that advocates for
children with special needs. In a separate action, fellow members of the BOE filed a School Ethics
complaint alleging that petitioner’s board membership with VKMF is in conflict with her responsibilities
to the BOE, and therefore petitioner’s removal as a member of the BOE is appropriate and necessary to
protect the interests of the BOE. In the instant matter, petitioner sought indemnification for the fees
and costs of defending herself in the School Ethics case, as well as for the costs associated with the
within petition. The parties filed cross motions for summary decision.
The ALJ found, inter alia, that: there is no genuine issue as to any material fact here, and the matter is
ripe for summary decision; the issue of indemnification of members of boards of education against the
cost of legal proceedings is governed by N.J.S.A. 18A:12-20, which provides for indemnification when a
legal action against a board member arises out of and in the course of the performance of their duties as
a member of the board; the issue in this case is whether N.J.S.A. 18A:12-20 requires that petitioner be
indemnified for legal fees and expenses incurred in connection with her defense against a School Ethics
complaint filed by fellow members of the BOE. The ALJ concluded that those allegations arose out of
petitioner’s private activities involving VKMF, not her service as a member of the BOE. Accordingly, the
ALJ granted the Board’s motion for summary decision, denied petitioner’s cross motion, and dismissed
the petition.
Upon review, the Commissioner concurred with the ALJ that the allegations against petitioner in this
matter are based on private actions and therefore petitioner is not entitled to indemnification under
N.J.S.A. 18A:12-20. Accordingly, the Commissioner denied petitioner’s motion for summary decision,
and granted the Board’s cross-motion for summary decision. The petition of appeal was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader.
It has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 04851-21
Agency Dkt. No. 78-5/21
New Jersey Commissioner of Education
Final Decision
Heather Garcia,
Petitioner,
v.
Board of Education of the Borough of
Norwood, Bergen County,
Respondent.
The record of this matter, the Initial Decision of the Office of Administrative Law (OAL), the
exceptions filed by petitioner pursuant to N.J.A.C. 1:1-18.4, and the Board’s reply thereto, have been
reviewed and considered.
Petitioner, who is a member of the Norwood Board of Education, is the subject of a complaint
alleging that she is in violation of the School Ethics Act (Act) because she also serves on the Board of
Trustees of the Valley Kids Matter Foundation, Inc. (VKMF), an organization that advocates for children
with special needs and is alleged to be in conflict with petitioner’s responsibilities to the Board.1 In the
instant matter, petitioner seeks indemnification for the fees and costs of defending herself in the
School Ethics matter, as well as for those associated with the instant petition. Following cross-motions
for summary decision, the Administrative Law Judge (ALJ) concluded that the allegations against
petitioner in the School Ethics complaint are based on private action, outside the performance of her
duties as a member of the Board. Accordingly, the ALJ concluded that petitioner is not entitled to
indemnification and granted the Board’s cross-motion for summary decision.
1 The School Ethics complaint is pending separate adjudication and this decision does not address the merits of
that complaint.
9-22

2
In her exceptions, petitioner argues that the School Ethics complaint does not accuse petitioner
of doing anything unethical by forming VKMF, but rather only alleges that petitioner improperly
received confidential information, participated in discussions, and voted to further VKMF’s objectives.
Petitioner contends that these actions clearly arise out of her duties as a Board member and thus she is
entitled to indemnification.
In reply, the Board argues that all of the violations alleged in the School Ethics complaint arose
with the incorporation of VKMF, and none pertain to any act or omission petitioner performed as a
member of the Board. Therefore, the Board contends, petitioner is not entitled to indemnification.
Upon review, the Commissioner concurs with the ALJ that the allegations against petitioner are
based on private actions and therefore petitioner is not entitled to indemnification. The Commissioner
does not find petitioner’s exceptions, which reiterate arguments made below that were considered and
rejected by the ALJ, to be persuasive. N.J.S.A. 18A:12-20 provides for indemnification when a legal
proceeding against a board member arises out of and in the course of the performance of her duties.
Here, the allegations arise out of petitioner’s activities involving VKMF, not her activities involving the
Board.
Accordingly, the petitioner’s motion for summary decision is denied, and the Board’s cross-
motion for summary decision is granted. The petition of appeal is hereby dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
January 19, 2022
January 19, 2022

New Jersey Is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
SUMMARY DECISION
OAL DKT. NO. EDU 04851-21
AGENCY REF. NO. 78-5/21
HEATHER GARCIA,
Petitioner,
vs.
BOARD OF EDUCATION OF THE
BOROUGH OF NORWOOD,
BERGEN COUNTY,
Respondent.
_____________________________
David B. Rubin, Esq., for Petitioner (Law Office of David B. Rubin, LLC,
attorneys)
Stephen R. Fogarty, Esq., for Respondent (Law Office of Fogarty & Hara,
attorneys)
Record Closed: November 29, 2021 	Decided: December 9, 2021
BEFORE: JOHN P. SCOLLO, ALJ:
STATEMENT OF THE CASE
The matter at hand in Heather Garcia v. Norwood Board of Education, OAL
Docket Number EDU 04851-21 (referred to as the “Indemnification Matter”) deals with

OAL DKT. NO.: EDU 04851-21
2
the question of whether Heather Garcia (hereinafter referred to as “Garcia”) is entitled
under N.J.S.A. 18A:12-20 to be indemnified for attorney’s fees, expenses and costs
associated with her defense of another OAL matter, I/M/O Heather Garcia, Norwood
Board of Education, OAL Docket Number EEC-10392-20.
BACKGROUND
I/M/O Heather Garcia, Norwood Board of Education (soon to be re-titled School
Ethics Commission v. Heather Garcia) concerns a Complaint filed under the School
Ethics Act, N.J.S.A. 18A:12-21 to 24 and under the Code of Ethics for School Board
Members, N.J.S.A. 18A: 12-24.1 alleging that Heather Garcia (hereinafter, “Garcia”), a
current member of the Norwood Board of Education (hereinafter, the “BOE”) is in
violation of several provisions of said laws in connection with her incorporation of,
membership on the Board of Trustees of, and affiliation with a New Jersey 501(c)(3)
non-profit corporation named Valley Kids Matter Foundation, Inc. (referred to herein as
“VKMF”) while simultaneously serving as a member of the Norwood Board of Education.
In essence, the Complaint filed by fellow BOE members alleges that VKMF is an
advocate for parents of special needs children (referred to herein as “special needs
parents”) who reside in the same school district (Northern Valley) wherein Norwood is
located; that VKMF’s avowed purpose is to advocate on behalf of said parents and
children (it clients) including being involved in actions brought against said school
district and / or Norwood BOE; that as a member of both the Norwood BOE and VKMF,
Garcia would repeatedly find herself in situations where her loyalties must necessarily
be divided between the BOE and the clients of VKMF; that Garcia’s membership on the
Norwood BOE places her in a position to obtain information that is not generally
available to the public and to use that information against the interests of the BOE and
the District; that Garcia would thereby place herself into a conflict of interest with
respect to her duties to the BOE, and also with respect to her duties to VKMF’s clients;
and that, inasmuch as her affiliation with VKMF conflicts with her duties to the Norwood

OAL DKT. NO.: EDU 04851-21
3
BOE, her removal from the BOE’s Board is appropriate and is necessary to protect the
interests of the BOE.
By way of further background information, Garcia asked the School Ethics
Commission (the “SEC”) for an Advisory Opinion seeking to determine (1) whether her
or her husband’s (Daniel Garcia’s) role or participation with VKMF poses a potential
conflict of interest with her membership on the Norwood BOE, (2) whether there is “an
ethical 	prohibition 	or 	issue 	with 	the 	organization 	(VKMF) 	performing 	fundraising
activities designed to pay for private services, directly to the provider of the services,
such as physical therapy, occupational therapy, equine or canine therapy, or the like”;
and (3) if there is a conflict related to Heather Garcia’s or Daniel Garcia’s participating in
the foundation (i.e., VKMF), or in other words, “Would a non-immediate family member
who is not an elected or appointed school board trustee possess such a conflict?”. 	On
April 21, 2020, the SEC, in response to Garcia’s request, issued Advisory Opinion A07-
20. This April 21, 2020 Advisory Opinion A07-20 is attached to Garcia’s Summary
Decision Motion papers as Exhibit ‘B’.) The essence of the Advisory Opinion is that
“ 	[T]he 	[School 	Ethics] 	Act 	does 	not 	prohibit 	[Garcia’s]
involvement in [VKMF] generally, or in a leadership role
specifically. Therefore, and based on your representations
set forth in your request, there is no current prohibition on
your involvement with the foundation. However, although
you are permitted to be involved with the foundation in the
capacity that you described, you would violate the Act if
[Garcia], 	[Garcia’s] 	spouse, 	or 	any 	other 	member 	of
[Garcia’s] foundation provided services to the families of the
students 	who 	attend 	the 	District’s 	schools.” 	[Emphasis
supplied.]
ISSUE TO BE DECIDED HEREIN
The issue in EDU 04851-21 is: Under the circumstances of this matter, does
N.J.S.A. 18A: 12-20 require that Garcia be indemnified for her legal fees and expenses
incurred in connection with her defense against the charges of the Amended Complaint

OAL DKT. NO.: EDU 04851-21
4
filed on March 30, 2020 by her fellow members of the Board of Education, which is the
subject of EEC 10392-20?
PROCEDURAL HISTORY
Carlos Guzman and five other members of the Norwood BOE filed a Complaint
on March 17, 2020 with the School Ethics Commission (the “SEC”), which the SEC
found deficient. 	After curing the deficiencies, an Amended Complaint was filed on
March 30, 2020 and served on Heather Garcia, on April 1, 2020. On April 1, 2020, the
SEC issued a letter to Garcia and to the Norwood BOE in which Garcia (therein referred
to as the “Respondent” for purposes of the Complaint) was directed to file an Answer or
a Motion to Dismiss within twenty days.
On May 4, 2020, after receiving an extension, Garcia sought to dismiss the
March 30, 2020 Amended Complaint by filing a Motion to Dismiss in Lieu of Answer
(hereinafter, the “Motion to Dismiss”). The Complainants (Guzman, et als.) filed a
response to the Motion to Dismiss. The SEC considered the filings at its meeting of
June 23, 2020 and on July 21, 2020 voted to deny the Motion to Dismiss and directed
Garcia to file her Answer. Moreover, the SEC found that the Complaint was not frivolous
and denied Garcia’s Motion for sanctions. Garcia filed her Answer to the Amended
Complaint on August 10, 2020.
On September 21, 2020 the SEC notified the Norwood BOE and Garcia that the
SEC would place this matter on its agenda for September 29, 2020 to make a
determination regarding probable cause. Having considered the filings on September
29, 2020, the SEC, at its meeting on October 27, 2020, voted to find probable cause for
all of the allegations of the March 30, 2020 Amended Complaint and also voted to
transmit the matter (hereinafter referred to as the “Ethics Matter”) to the Office of
Administrative Law (OAL). Sometime after the October 27, 2020 finding of probable
cause, Garcia hired David B. Rubin, Esq. to represent her.

OAL DKT. NO.: EDU 04851-21
5
The above-mentioned Ethics matter was filed with the OAL on November 4, 2020
under Docket Number EEC 10392-20 as a contested case pursuant to N.J.S.A. 52:14B-
1 to -15; N.J.S.A. 52: 14F-1 to -13 and assigned to a judge. (Thereafter, in June, 2021,
the Ethics Matter was re-assigned to John P. Scollo, ALJ, who held an Initial Telephone
Conference on June 25, 2021 and issued a Pre-hearing Order on June 28, 2021.)
On an unspecified date, a request for indemnification for legal fees, costs and
expenses was sent to the SEC. On May 11, 2021, the SEC determined that it was not
obligated to indemnify Garcia and notified her of its decision. On May 17, 2021, Garcia’s
counsel filed a Verified Petition of Appeal seeking indemnification. On June 4, 2021
Stephen R. Fogarty of Fogarty & Hara filed an Answer to the Petition of Appeal.
Garcia’s counsel filed a Petition (hereinafter referred to as the Indemnification Matter)
with the OAL seeking indemnification for her legal fees, costs and expenses. The
Indemnification Matter was filed under OAL Docket Number EDU 04851-20 on June 4,
2021. 	The Indemnification matter was assigned to John P. Scollo, ALJ, who held an
Initial Telephone Conference on June 22, 2021 and issued a Pre-Hearing Order on
June 24, 2021.
On October 19, 2021, counsel for Garcia filed a Motion for Summary Decision.
Counsel for the Norwood BOE filed Opposition papers and the BOE’s Cross-Motion for
Summary Decision on November 12, 2021. On November 29, 2021, counsel for Garcia
filed Reply papers to the BOE’s Opposition, which also served as Opposition to the
BOE’s Cross-Motion, and the record closed that day.
FINDINGS OF FACT
A reading of the parties’ submissions, shows that both sides agree that: (1)
Heather 	Garcia has been 	and presently 	is 	a member 	of 	the Norwood Board of
Education; (2) Heather Garcia and her husband Daniel Garcia, formed a New Jersey
501(c)(3) non-profit corporation named Valley Kids Matter Foundation, Inc. (VKMF) on
January 9, 2020; (3) Heather Garcia, Daniel Garcia and Anthony Shand, Heather

OAL DKT. NO.: EDU 04851-21
6
Garcia’s father, compromise the entire membership of VKMF’s board of trustees; (4)
according to its Certificate of Incorporation, VKMF’s purpose clause reads as follows:
“To provide support to families of special needs children by providing support groups,
educational speakers, community events and financial assistance for therapy, and
advocacy services”; (5) there are no factual issues standing in the way of deciding the
legal issue set forth above; and (6) The School Ethics Commission issued Advisory
Opinion A07-20 on April 21, 2020.
APPLICABLE LAW
The definition of “relevant evidence” is set forth is Rule 401 of the New Jersey
Rules of Evidence:
“Relevant evidence” means evidence having a tendency in
reason to prove or disprove any fact of consequence to the
determination of the action.
Relevant Portions of the School Ethics Act
The School Ethics Act at N.J.S.A. 18A:12-21 et seq. at 18A:12-24 (Conflicts of
Interest), in pertinent parts, (i.e., omitting sections (b), (e), (h), (i) (j) and (k)) provides:
(a) 	No school official or member of his immediately family
shall have an interest in a business organization or engage
in any business, transaction, or professional activity, which is
in substantial conflict with the proper discharge of his duties
in the public interest;
(c) 	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

OAL DKT. NO.: EDU 04851-21
7
has a personal involvement that is or creates some benefit to
the school official or member of his immediate family;
(d) 	No school official shall undertake any employment or
service, 	whether 	compensated 	or 	not, 	which 	might
reasonably be expected to prejudice his independence 	of
judgment in the exercise of his official duties;
(f) No school official shall use, or allow to be used, his public
office 	or 	employment, 	or 	any 	information, 	not 	generally
available to members of the public, which he receives or
acquires in the course of and by reason of his office or
employment, for the purpose of securing financial gain for
himself, any member of his immediate family, and or any
business organization with which he is associated;
(g) 	No school official or business organization in which he
has an interest shall represent any person or party other
than the school board or school district in connection with
any cause, proceeding, application or other matter pending
before the school district in which he serves or in any
proceeding involving the school district in which he serves
or, for officers or employees of the New Jersey School
Boards Association, any school district. 	This provision shall
not be deemed to prohibit representation within the context
of 	official 	labor 	union 	or 	similar 	representational
responsibilities.
Relevant Portions of the Code of Ethics for School Board Members
The School Ethics Act at N.J.S.A. 18A:12-24.1 (Code of Ethics for School Board
Members), in pertinent parts, requires a school board member, in the performance of
his duties, to set aside his own interests and the interests of others and to exercise
independence of judgment. Specifically, under the following sections of N.J.S.A. 18A:
12-24.1 (omitting sections (a), (b), (d), (h) and (j)) the Board member under oath
pledges:
(c) I will confine my board action to policy making, planning,
and appraisal, and I will help to frame policies and plans only

OAL DKT. NO.: EDU 04851-21
8
after the board has consulted those who will be affected by
them;
(e) 	I will recognize that authority rests with the board of
education and will make no personal promises nor take any
private action that may compromise the board;
(f) 	I will refuse to surrender my independent judgment to
special interest or partisan political groups or to use the
schools for personal gain or for the gain of friends;
(g) 	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.
(i) 	I will support and protect school personnel in proper
performance of their duties.
The Law of Indemnity of Members of Boards of Education Against Cost of Defense of
Civil and Criminal Actions
N.J.S.A. 18A:12-20 governs the issue of indemnification of members of boards of
education against the cost of legal proceedings brought against them. The law reads as
follows:
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 duties as a member
of a board of education, and in the case of a criminal or
quasi-criminal action such action results in final disposition in
favor of such person, the board of education 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. 	Indemnification 	for
exemplary or punitive damages shall not be mandated and
shall be governed by the standards and procedures set forth
in N.J.S.A. 59:10-4. Any board of education may arrange for

OAL DKT. NO.: EDU 04851-21
9
and 	maintain 	appropriate 	insurance 	to 	cover 	all 	such
damages, losses and expenses. [Emphasis supplied.]
ANALYSIS OF THE PARTIES’ ARGUMENTS AND CONCLUSIONS
The Complaint asserts that Garcia violated the School Ethics Act N.J.S.A.
18A:12-24 (a),(c) (d) and (f) and the Code of Ethics for School Board Members 18A:12-
24.1 (c), (f) and (i), when she formed VKMF and took a seat on the Board of Trustees of
VKMF. 	The Complainants allege that the goals of VKMF and the business of the BOE
are in substantial conflict and are such that they will certainly be adversaries in the
foreseeable future. This being so, the BOE asserts that Garcia will find herself in a
position where her loyalty must be divided between these opposing entities, the one
representing the clients of VKMF and the other being the BOE.
Petitioner-Norwood BOE’s Position
The BOE’s positions are as follows. 	As a member of the BOE, Garcia is
obligated under N.J.S.A. 18A:12-24(a) not to have an interest in a business organization
or to engage in any business, transaction, or professional activity, which is (or will be) in
substantial conflict with the proper discharge of her duties to the schools. In regard to
the charge brought pursuant to N.J.S.A. 18A:12-24(a), the BOE points out that Garcia
and her husband are board members of VKMF, an entity whose purpose is to advocate
on behalf of parents of special needs students in obtaining services from schools. In
other words, VKMF exists to assist special needs parents to obtain services from the
school districts and school boards. As everyone would agree, such services cost money
and there are frequent disagreements between special needs parents on the one hand,
and school districts on the other hand over the appropriateness and cost of such
services, which can and does lead to costly litigation. 	The BOE argues that because of
the likelihood of such disputes and litigation, there exists a substantial conflict between
the duties Garcia owes to the BOE and her activities on behalf of VKMF and the clients
VKMF serves. The BOE argues that Garcia’s involvement with VKMF creates the type

OAL DKT. NO.: EDU 04851-21
10
of conflict of interest contemplated by N.J.S.A. 18A:12-24(a) and so, the conflict makes
Garcia ineligible for continued membership on the Norwood BOE.
As 	a 	member 	of the BOE, 	under 	N.J.S.A. 	18A:12-24(c), 	Garcia 	would 	be
prohibited from acting on any matter where the business organization she has an
interest in (VKMF) has a direct or indirect financial involvement that might reasonably be
expected to impair her objectivity or independence of judgment. The BOE’s position is
that its Complaint is not based on any of Garcia’s particular BOE-related actions (i.e.,
Garcia’s participation in BOE meetings or BOE votes). Rather, the BOE takes the
position that its Complaint is based on Garcia’s formation of and involvement with
VKMF, private actions which are outside her duties to the Board of Education. The
BOE’s position is that Garcia’s involvement with VKMF runs counter to the provisions of
N.J.S.A. 18A:12-24(c) because it can reasonably be expected that it will result in a
direct or indirect financial involvement (i.e., on behalf of VKMF’s clients) regarding
whether or not they obtain services or increased benefits from boards of education or
school districts, and thus can reasonably be expected to impair Garcia’s objectivity or
independence of judgment.
Under N.J.S.A. 18A:12-24(d), Garcia, as a school official, would be prohibited
from 	undertaking 	any 	services 	(compensated 	or 	uncompensated) 	which 	might
reasonably be expected to prejudice her independence of judgment in the exercise of
her official duties.
The BOE views VKMF as an advocacy organization formed to advocate for
special needs parents whose interests can be reasonably expected to result in disputes
with 	boards 	of 	education. 	The 	BOE 	takes 	the 	position 	that 	Garcia’s 	continued
involvement 	with 	VKMF 	runs 	counter 	to 	the 	provisions 	of 	N.J.S.A. 	18A:12-24(d)
because it raises a reasonable expectation of prejudice to Garcia’s independence of
judgment.

OAL DKT. NO.: EDU 04851-21
11
Finally, under N.J.S.A. 18A:12-24(f), Garcia would be prohibited from using
information made known to her in the course of and by reason of her position as a
member of the Board of Education, for the purpose of securing a financial gain for any
business organization with which she is associated. 	In accordance with the goals of
N.J.S.A. 18A:12-24(f), the BOE’s concern is that while being involved with VKMF,
whose clients will be adversaries of the BOE in foreseeable disputes, Garcia would
have access to information not generally available to the general public and which could
be used to the advantage of VKMF’s clients and to the detriment of the BOE. While not
accusing Garcia of having disclosed such information to anyone who might use it
against the interests of the BOE, the BOE argues that the potential for disclosure of
such information requires Garcia’s termination as a board member of the BOE.
In regard to the Code of Ethics for School Board Members, N.J.S.A. 18A:12-24.1,
the BOE maintains that Garcia is in violation of several sections due to her involvement
with VKMF and her simultaneous membership on the BOE’s board. Under N.J.S.A.
18A: 12-24.1(c), Garcia as a member of the Norwood board (BOE) must confine her
board action to policy making, planning, appraisal, and must help to frame the BOE’s
policies and plans. The BOE views VKMF’s purpose clause and foreseeable advocacy
on behalf of its clients, including activity that can lead to litigation, as adverse to the
interests of the Northern Valley School District and to the Norwood BOE. Therefore, the
BOE maintains that Garcia’s formation of and involvement with VKMF will inevitably
include the rendering of services to VKMF clients and thus interfere with her duties to
the BOE regarding policy making, planning, etcetera.
Under 	N.J.S.A. 	18A:12-24(f), 	Garcia 	is 	obligated 	not 	to 	surrender 	her
independent judgment to special interest groups or to partisan political groups. 	The
BOE maintains that VKMF is a special interest group. The BOE maintains that VKMF is
a partisan group, which according to its purpose clause, exists to advocate on behalf of
special needs parents against school districts and boards of education. 	Therefore, the
BOE maintains that Garcia’s formation of and involvement with VKMF will interfere with

OAL DKT. NO.: EDU 04851-21
12
her independent judgment when and where the interests of VKMF and the school
authorities differ.
Under N.J.S.A. 18A:12-24(i), Garcia is obligated to support school personnel in
the proper performance of their duties. The BOE maintains that VKMF is a special
interest 	group 	which 	exists 	to 	advocate 	for 	special 	needs 	parents 	and 	that 	that
advocacy will inevitably bring VKMF’s clients into disputes with the BOE. Therefore, the
BOE maintains that Garcia’s formation of and involvement with VKMF will compromise
her duty to work with her fellow BOE board members for the interests of the BOE.
To sum-up, the BOE’s positions demonstrate its concern, as reflected in the
cautionary language of Advisory Opinion A07-20, that in simultaneously serving two
different and foreseeably opposed masters, VKMF and its clients on the one hand and
the BOE on the other hand, Garcia will be unable to adequately serve either one.
Insofar as the BOE’s interests are concerned, it believes that it is within its rights to
remove Garcia from her current position on the board due to obvious conflicts of interest
arising out of her formation of and involvement with VKMF.
Having set forth its case that Garcia’s membership on the BOE is fraught with
conflicts of interest, the BOE maintains that it does not seek Garcia’s removal as a
result of actions she has taken as a BOE member. 	The BOE maintains that in having
formed and involved herself with VKMF, an entity dedicated to advocating for special
needs parents, Garcia has already placed herself between the interests of two masters
whose interests conflict. Therefore, these conflicting interests presently disable Garcia
from performing and fulfilling her duties to and for the BOE and her removal is therefore
justified.
Respondent-Garcia’s Position
The essence of Garcia’s position is that the Complaint against which she is
defending was brought against her for reasons arising out of the performance of her

OAL DKT. NO.: EDU 04851-21
13
duties as a member of the BOE. 	Garcia maintains that since she is defending herself
against an action occasioned by her activities as a BOE member, she comes within the
ambit 	of 	N.J.S.A. 	18A:12-20’s 	indemnification 	provisions 	and 	therefore 	should 	be
afforded indemnification for her attorney’s fees, expenses and costs of suit and for any
financial losses resulting from the action.
Garcia argues that the Complaint was brought because she participated in BOE
meetings 	which 	necessarily 	involve 	her 	participation 	in 	board 	business 	such 	as
discussions, reviewing of information and materials (which are not necessarily of the
type generally available 	to members of the public) and her participation in votes made
on board resolutions. 	Inasmuch as the aforementioned activities are regular parts of
fulfilling her duties as a BOE member, it follows that the Complaint arose out of or, put
another way, had a substantial connection with her duties as a board member. This
being so, it logically follows that N.J.S.A. 18A:12-20’s indemnification provisions must
be afforded to her. Garcia adds that the scope of the phrase “act or omission arising out
of and in the course of the performance of his [or her] duties as a member of a board of
education” has been viewed with liberality by the courts due to the policy of promoting
free expression and protecting school board members when they speak and act for the
public good.
Garcia amplifies her argument for indemnification by analogizing her demand for
indemnification under N.J.S.A. 18A:12-20 with an insured’s invoking an insurance
carrier’s duty to defend the insured (as well as to indemnify the insured in the event of
an adverse judgment).
In this matter, Garcia substitutes N.J.S.A. 18A:12-20 in place of the typical
liability insurance policy and asks the Tribunal to apply the same analysis that a court
would use when deciding an insurance coverage case.

OAL DKT. NO.: EDU 04851-21
14
Analysis
The duty to defend, in the insurance context, arises out of a contract between the
insurance carrier and the policyholder, the language of which can vary from contract to
contract written at different times by various companies. In the insurance context, the
duty to defend is based on the agreement of the parties to the contract. Hartford
Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984). In cases
where the parties find themselves in a dispute about coverage, a court may be called
upon to interpret the meaning of the words and phrases employed in the language set
forth in the insurance contract. This can involve an analysis of and balancing of
competing interpretations of the language of the contract taking into account the literal
meaning of the words employed, the discerning of any alleged ambiguities in the policy
language, and the reasonable expectations of the parties to the contract. This Tribunal
appreciates the analogy offered by counsel for Garcia, but as with most arguments by
analogy, the argument has its limitations.
In the case at bar, the duty to indemnify is not created by the parties to a
contract, but by passage of a law by the Legislature. In passing N.J.S.A. 18A:12-20, the
Legislature declared that whenever an action is brought against a school board member
for any act or omission arising out of and in the course of the performance of her duties
as a member of the board of education, the board of education shall defray all costs of
defending such action, including reasonable counsel fees and expenses. As noted
above, the courts of New Jersey have viewed this with liberality. It is also clear that in
cases dealing with a insurance carrier’s duty to defend, the courts of New Jersey
recognize and uphold the principle that it is the nature of the claim that triggers the
obligation to defend, not the details of accident or the ultimate outcome. Danek v.
Hommer, 28 N.J. Super. 68 (App. Div. 1963), aff’d, 15 N.J. 573 (1954).
In the matter at bar, the deciding factor in determining whether indemnification is
to be afforded or not afforded turns on whether the Complaint charges Garcia with
violations that arose out of and in the performance of (i.e., within) her duties as a board

OAL DKT. NO.: EDU 04851-21
15
member or whether the Complaint charges Garcia with violations that arose outside
(i.e., private action) the performance of her duties as a board member.
Garcia argues that it would be impossible to interpret her participation in board
meetings (involving acquiring information from written documents and by spoken words,
discussing issues and ideas and voting on resolutions) as being anything other than
actions arising out of and in the performance of her duties as a member of the school
board. Garcia’s claim for indemnification (as well as at least part of her anticipated
defense in the Ethics matter) rests on this base. Garcia’s claim is that the Complaint
charges her with actions that she performed within her board-related duties. However,
the BOE argues that the Complaint does not charge Garcia with having committed any
act or omission that was violative of any board-related duty. The BOE maintains that
Garcia’s incorporation of VKMF and taking a seat on its board of trustees was a private
action well outside the bounds of her board-related duties, and one which immediately
created a conflict of interest. Therefore, the BOE maintains that it is within its rights to
seek Garcia’s removal from the BOE.
At this point in time (in the matter encaptioned EDU 04851-21), this Tribunal
must concern itself only with deciding the Indemnification issue. The decision regarding
the Ethics Issue (ECC 10392-20) will await determination at a later date.
I CONCLUDE that the School Ethics Commission accurately assessed the
situation when it issued Advisory Opinion A07-20.
I CONCLUDE that the School Ethics Commission found that the formation of
VKMF by Garcia and her husband was an activity that was outside the control, oversight
or management of the BOE.
I CONCLUDE that the language of the School Ethics Commission’s Advisory
Decision A07-20 means that Garcia’s incorporation of VKMF was a private action and

OAL DKT. NO.: EDU 04851-21
16
her involvement with VKMF is a private action unrelated to the duties of a member of a
board of education.
I CONCLUDE that the School Ethics Commission’s Advisory Opinion A07-20
means that Garcia is permitted to be involved with VKMF based on the representations
made in her application for the advisory opinion.
I CONCLUDE that the School Ethics Commission found that the School Ethics
Act did not prohibit Garcia’s involvement with VKMF generally, or in a leadership role
specifically.
I CONCLUDE that the School Ethics Commission did not state that Garcia has
violated any duties she owes to the BOE by either act or omission.
However, I CONCLUDE that in Advisory Opinion A07-20, the School Ethics
Commission issued a warning to Garcia; that warning is that if she, her husband or any
member of VKMF provides services to the families of the students who attend the
Northern Valley School District, then she would be in violation of the School Ethics Act.
I 	CONCLUDE 	that 	the 	language 	used 	in 	the 	School 	Ethics 	Commission’s
warning means that if VKMF provides any service to any special needs parent regarding
any issue that can or does result in aiding a special needs parent in advocacy or in a
dispute with the school district, then Garcia would, by virtue of being associated with or
involved with VKMF, be deemed to be in violation of the School Ethics Act.
I CONCLUDE that the School Ethics Commission was referring specifically to
N.J.S.A. 18A:12-24(a), which prohibits a school official from having an interest in an
organization or taking part in any professional activity which is in substantial conflict with
her duties as a school board member, and likely to other sections of the School Ethics
Act or the Code of Conduct for School Board Members.

OAL DKT. NO.: EDU 04851-21
17
Where a Complainant refers in his Complaint to facts in setting-out his cause of
action, the court analyzes the facts alleged as part of the process it uses to reach its
conclusion(s) of law. 	Reviewing the contents of a Complaint and discerning what
causes of action it contains, as well as what causes of action it does not contain, is a
matter of law for the court to decide.
Having 	closely 	analyzed 	the 	language 	and 	substance 	of 	the 	Complaint, 	I
CONCLUDE that the allegations of Garcia’s violations of the Act are not based on
actions which arose out of and in the performance of her duties as a member of the
board of education, but rather are based on private action outside her performance of
her duties to the board of education.
Having concluded that the Complaint charges Garcia with violating the School
Ethics Act by taking actions that are outside her school board-related duties, it follows
that I must CONCLUDE that Garcia is not entitled to indemnification under N.J.S.A.
18A:12-20.
ORDER
Based upon the foregoing, it is ORDERED that the Respondent-Norwood Board
of Education’ Cross-Motion for Summary Decision on the issue of Indemnification under
N.J.S.A. 18A:12-20 is GRANTED; and it is further
ORDERED 	that 	Petitioner-Garcia’s 	Motion 	for 	Summary 	Decision 	seeking
Indemnification under the provisions of N.J.S.A. 18A:12-20 is DENIED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized

OAL DKT. NO.: EDU 04851-21
18
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: Exceptions.” A copy of any exceptions must be sent to
the judge and to the other parties.
December 9, 2021
DATE 	JOHN P. SCOLLO, ALJ
Date Received at Agency:
Date Mailed to Parties:
db