On February 13, 2024 the School Ethics Commission issued a decision in the matter of Pio Pennisi, Thomas Cassio, Jim Giannakis, Keith Both, Divon Pender, John Farinella, and William Seesselberg, (Complainants) v. Deborah Boyle (Respondent), South Plainfield Board of Education (Board), Middlesex County, overturning an Administrative Law Judge’s Order quashing a subpoena served on an individual witness pursuant to N.J.A.C. 1:1-11.1

The underlying School Ethics complaint was filed by several individuals against Deborah Boyle, a member of the South Plainfield Board of Education. The complaint alleged that Respondent violated the School Ethics Act by sharing confidential Board documents with the plaintiff in a then-pending age discrimination suit against the Board and its Superintendent. The alleged disclosure of those confidential documents to the plaintiff in that age discrimination suit and the plaintiff’s belief that Respondent was the source of those documents were first made known to the Board by the plaintiff’s attorney.

After various procedural steps and multiple days of hearing before the Administrative Law Judge, Complainants served subpoenas on the plaintiff in that age discrimination suit and his attorney pursuant to N.J.A.C. 1:1-11.1 to obtain information concerning the source of the documents at issue and their beliefs regarding same. In response, the attorney filed a motion to quash the subpoenas served upon him and his client. The Administrative Law Judge granted the motion and quashed both subpoenas, finding that any testimony to be obtained from either individual would be privileged as an attorney-client communication.

This office filed an application with the School Ethics Commission pursuant to N.J.A.C. 1:1-14.10(b) seeking its interlocutory review of the Administrative Law Judge’s Order quashing the subpoenas. The Commission granted Complainants’ request for interlocutory review and overturned the Administrative Law Judge’s Order quashing the subpoena as to the plaintiff in the prior age discrimination suit. The Commission agreed that the plaintiff’s opinion or observation concerning the source of the documents he received was not a “communication” protected under the attorney-client privilege. The Commission also rejected the other arguments made in opposition to Complainants’ application, finding that neither the discovery and settlement terms in the prior age discrimination suit, the entire controversy doctrine, res judicata, nor the litigation privilege precluded the taking of the plaintiff’s testimony as part of Complainants’ claims against Respondent. Accordingly, the Commission modified the Administrative Law Judge’s decision and ordered that the plaintiff in the prior age discrimination suit appear and provide testimony in accordance with the subpoena.

Matthew J. Giacobbe and Anthony G. LoBrace of Cleary Giacobbe Alfieri Jacobs, LLC argued for Complainants.

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