John Geppert and Sarah Gober were recently successful in securing a favorable precedent-setting decision before the New Jersey Appellate Division. The Appellate Division confirmed the decision of the Commissioner of Education, finding that the Hackensack Board of Education had properly responded yes to questions on a “Pass the Trash” disclosure form regarding a former employee's resignation amidst allegations of sexual misconduct. The court also agreed with the Commissioner of Education's conclusion that the Board was entitled to absolute immunity with regard to its responses to the form so long as the responses were made in good faith.

In one of the first decisions following enactment of the “Pass the Trash” statute, the case stemmed from notice provided to the Board in 2013, claiming that the employee had posted inappropriate and sexually suggestive content to her social media page, which was available to students. As the District conducted an investigation into the allegations, which included contacting law enforcement, the parties agreed to the terms of a settlement agreement providing for the employee's resignation. In 2019, the Board received and responded to a “Sexual Misconduct/Child Abuse Disclosure Information Request” which was submitted by A.B.'s prospective employer pursuant to the “Pass the Trash” requirements, enacted after A.B.'s separation from employment with the Board. The Board responded affirmatively to the questions regarding whether A.B. had been the subject of any child abuse or sexual misconduct investigation, and whether she resigned or was otherwise separated while “allegations” were under investigation. The prospective employer elected not to move forward with A.B.'s employment.

A.B. subsequently filed a complaint against the Board. However, the administrative law judge granted summary decision in favor of the Board. The Commissioner of Education adopted the ALJ's decision and A.B. appealed. The Appellate Division upheld the Commissioner of Education's grant of summary judgment in favor of the Board, affirming the Commissioner's conclusions. The court found that the Board had acted in compliance with its obligations under “Pass the Trash” by affirmatively responding to the questions of whether the employee had been subject to an investigation into sexual misconduct and that she resigned while those allegations were under investigation. The court concluded that the execution of a settlement agreement requiring her resignation did not support A.B.'s arguments that she was no longer under investigation at the time of her resignation, that her behavior was not sexual misconduct, and that the Board had not acted in good faith when responding to the form.

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