In a now-stalled investigation, former NC Superintendent Mark Johnson was accused of using his office to campaign for lieutenant governor.
Former NC schools Superintendent Mark Johnson and his staff didn’t cooperate with an ethics investigation into complaints that he misused his position in pursuit of higher office, the NC Ethics Commission said in a confidential statement last month.
But, since Johnson’s term ended this month, the Commission said the investigation would be suspended. Cardinal & Pine obtained a copy of the confidential notice sent to one person who filed a complaint, NC educator Justin Parmenter.
[Disclosure: Parmenter is an occasional paid contributor to C&P, although he did not participate in the reporting, writing, or editing of this report. Parmenter volunteered to provide a copy of the notice. ]
Johnson, a Republican, was elected to the statewide schools superintendent position in 2016 and sought, but lost, the GOP nomination for lieutenant governor in the March 2020 primary.
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In the notice of suspension, the NC Ethics Commission — which reviews and rules on allegations that public officials violated state ethics law — said it received at least seven complaints about mass emails and texts that Johnson, referred to as Respondent, sent as superintendent to hundreds of thousands of parents and teachers. The messages concerned the Common Core curriculum, a controversial matter in some conservative circles, two weeks before the GOP primary elections last March.
The complaints sent to the Commission allege that Johnson was trying to boost his chances in the lieutenant governor campaign by sending out the mass messages through mailing and text lists he had access to through his state superintendent job.
The Ethics Commission’s investigation into Johnson’s communication was a preliminary part of the process. A bipartisan panel first looked at the issue then directed Commission staff to start an inquiry “to determine whether there was probable cause to believe that Respondent had violated the Ethics Act.”
The inquiry was initiated on March 11, 2020, the notice said. If the investigation found probable cause, the issue would move before a Commission hearing for final judgement. If no probable cause was found, the complaints would be dismissed.
“Respondent was notified of the Panel’s determination and invited to submit a response to the complaints,” the notice said. “In his April 13, 2020, response, Respondent stated that the messages were sent ‘in furtherance of my official duties as State Superintendent and were not intended for any political, financial, or personal benefit.’”
But, however the Commission might have eventually ruled, Johnson’s office did not cooperate, the notice said.
“Commission staff encountered significant resistance to providing the information requested,” the Commission said in its notice about Johnson’s office. “Staff received incomplete responses requiring frequent follow-up and were met with claims that Commission staff could only gain access to documents that were subject to the Public Records Act.”
Cardinal & Pine’s efforts to reach Johnson were not successful.
In a phone call, Kathleen S. Edwards said the Commission could not comment on any part of an investigation that has not been made public.
Graham Wilson, the then-spokesman for the NC Department of Public Instruction (DPI), dismissed the ethics complaints at the time, telling the News & Observer in March that Johnson was simply doing his job and the complaints were politically motivated.
DPI, which is now under new leadership, did not immediately return phone calls seeking comment.
Misusing Office for Personal Gain?
The alleged text messages and emails included a survey about Common Core, a set of academic standards adopted by most states that Johnson has long opposed. Some conservatives deride Common Core as a move to strip power from local schools officials to define their own educational standards. Though the state moved away from many of the Common Core standards in 2017, Johnson, and most other conservatives, have been pushing for a complete break.
The superintendent has no say over whether NC implements Common Core, but Johnson made his opposition to it a key part of his campaign for lieutenant governor. [NC’s Lieutenant Governor is a voting member of the NC State Board of Education, which makes education policy decisions.The superintendent is not.]
The survey, allegedly sent through 800,000 emails and some 540,000 text messages to parents and educators across the state, asked whether recipients thought Common Core should still be taught in NC. Though Johnson had sent mass emails on education issues before, DPI officials said at the time, this was the first time he had sent a mass text message. The timing, critics such as Parmenter said, clearly violated ethics guidelines against conflicts of interest and using elected office for personal gain.
In a press release announcing the results of the survey, Johnson said the effort was intended to seek “greater engagement and feedback on improving state standards.”
On Feb. 6, a week before the mass messages were sent, DPI issued a news release alerting parents and teachers about the survey initiative, and acknowledging both Johnson’s opposition to Common Core and the fact that he had no say in whether or how it is used in the state.
“Johnson is opposed to the use of Common Core standards in NC schools, but the NC Board of Education controls whether or not Common Core is used in NC,” DPI said in the release.
A lieutenant governor opposed to Common Core, however, could have significantly more influence.
A Stalled Investigation
Bob Phillips, the executive director of Common Cause North Carolina, part of a national bi-partisan group advocating for governmental accountability, said he had no knowledge of the complaints against Johnson, but that, in general, the Ethics Commission faces several challenges that undercut its independence and effectiveness.
“Not to diminish the hard work that these folks do or that they all serve with the best of intentions,” but “we at Common Cause have always had concerns regarding the Commission, who appoints the members, how they are appointed and just the framework that they operate.”
The Commission members are appointed by the governor and General Assembly leaders, and are funded through the legislature. That structure, Phillips said, can create “both the optics and maybe even in practice, where it appears that the Commission is not really given or having the ability to complete examinations and investigations in a timely and efficient manner on behalf of the public.”
That the Commission could not compel Johnson to cooperate seems to fit in with these concerns.
The Commission’s investigation “included requests for information from Respondent related to the circumstances underlying the text and email communications in question,” the notice said. “Those requests sought information from Respondent’s agency and from his campaign committee.”
At first, Johnson and his team pledged to cooperate, the Commission said.
He defended the messages as well within his purview as superintendent, but acknowledged the Commission’s jurisdiction and told investigators to reach out with questions.
“I will be happy to answer them,” he said, according to the notice.
But soon after, the notice said, Johnson’s office repeatedly failed to provide documents and information the Commission staff asked for, often taking months to respond to repeated entreaties. Other requests were ignored entirely.
Some two months later, the notice said, Johnson’s staff “declined to provide any information, instead directing those requests to an outside attorney.”
The process reset at that point, the Commission said, with the counsel, unnamed in the notice, also pledging cooperation then failing to deliver.
“On November 18, four months after campaign information had been requested by Commission staff and six weeks after [Johnson’s] outside counsel agreed to provide the requested information,” Johnson again “declined to provide that information,” the notice said.
At this point, despite his initial pledge for cooperation, Johnson questioned the Commission’s jurisdiction to seek records from his political campaign, arguing that those “didn’t go through any tools of the state.” His counsel also argued that because the communications that Johnson sent to parents and teachers brought him no financial gains, there could be no ethical violation.
“Rather, counsel argued that, if anything, use of State resources for an official’s political campaign would provide a ‘reputational,’ not a financial benefit,” the Commission’s notice said.
The State Government Ethics Act, signed into law in 2006, prohibits using public office for private gain. Most of the provisions do specifically target financial gain. But, the act does make clear that financial gain is not the only issue under the Commission’s purview and that the responsibility lies with the official to avoid both direct and perceived conflicts of interest.
“A public servant,” the act says, “shall make a due and diligent effort before taking any action, including voting or participating in discussions with other public servants on a board on which the public servant also serves, to determine whether the public servant has a conflict of interest.” (138A-35)
In the next clause, while essentially repeating the thought to emphasize it, the Act expands the scope beyond financial gain: “A public servant shall continually monitor, evaluate, and manage the public servant’s personal, financial, and professional affairs to ensure the absence of conflicts of interest.”
Throughout the investigation, Johnson declined to be interviewed by the Commission on any topic, the notice said.
“Since Respondent has declined to fully cooperate in the Commission’s investigation, the Panel is unable to determine whether there is probable cause to conclude that Respondent’s actions violated the Ethics Act,” the notice said.
If Johnson ever falls under their purview again, however, the Commission will revive it.
“Because Respondent will no longer be within the Commission’s enforcement jurisdiction upon the expiration of his term,” the notice said, “the Commission’s investigation of Respondent is suspended until Respondent returns to a position subject to the Ethics Act, at which time the Commission will resume its investigation and further address Respondent’s failure to cooperate.”
As for Johnson’s bid to become lieutenant governor, Republican Mark Robinson, who would eventually be elected in November, won the GOP primary in March. Johnson, behind by more than 150,000 votes, came in third.
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