Mark Johnson flips the State Ethics Commission the bird on the way out the door

When former Superintendent Mark Johnson rolled out his Common Core campaign stunt last February, it was not the first time he’d used his position for self promotion.  

Johnson had already earned countless educator eye rolls for the luxurious, colorful flyers with pictures of himself he was fond of blanketing school mailboxes with, and his use of the now-defunct ncsuperintendent.com website for official purposes was the frequent subject of scorn.

But when Johnson came out swinging against the Common Core State Standards for the first time ever–a full three years into his term as superintendent and just three weeks before he was due to run in the March 2020 Republican primary for Lieutenant Governor–it was just so obvious and shameless.  

A crowded Republican field.  The need to distinguish himself.  The choice of a favorite conservative boogeyman.

What was different this time was how Johnson chose to disseminate his campaign message.  The superintendent sent a message which said “NC Superintendent Johnson wants to remove Common Core from NC schools. Do you?” with a link to a survey filled with anti-Common Core language to 800,000 email addresses and 540,000 cell phone numbers of educators and public school parents and guardians.  

Johnson had sent mass emails before, but it was the first time he’d sent a mass text message, and it led many to question how the superintendent had gotten their personal cell phone numbers without their consent.  There was really only one logical explanation of the source:  local school contact information databases which contain email addresses and telephone numbers collected from employees and families of enrolled students.

The State Ethics Act clearly forbids elected and appointed officials from using their public position for private gain, so in mid-February I filed an official complaint with the North Carolina State Ethics Commission regarding Superintendent Mark Johnson using the resources of the office of state superintendent for his personal political campaign purposes.

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In mid-March I received word from the Commission that the investigation would be proceeding.  Then there was a protracted period of silence.  During summer I spoke briefly with the Commission’s Investigations Counsel Jameson Marks, expressing my concern about the pace of the investigation given the limited time Superintendent Johnson had remaining in office.   Mr. Marks said he was unable to discuss a pending investigation and could only confirm that it was moving forward.

The next communication I received about the investigation into my complaint came on December 31, Mark Johnson’s last day in office as state superintendent.  The Commission provided me a summary of its work and let me know that it was suspending the investigation because, as a private citizen, Johnson no longer fell under its jurisdiction.

Initially I was inclined to blame the slow pace of work on the part of the Ethics Commission.  After all, the law requires the commission to “conduct an inquiry into all complaints…in a timely manner.”  But as I read the Commission’s report on the matter, it became clear that the Commission had done everything it could under the law to carry out the investigation.

The problem, according to the Commission’s report, is that it had been met with “significant resistance” to information requests, “incomplete responses requiring frequent follow-up” and refusal on the part of Superintendent Johnson to be interviewed by Commission staff.  

The Commission noted that willful failure to cooperate with an investigation as required by law is considered malfeasance and can be cause for impeachment.  However, it also concluded that because Johnson had “declined to fully cooperate in the Commission’s investigation, the Panel is unable to determine whether there is probably cause to conclude that Respondent’s actions violated the Ethics Act.”

The Commission did add that, although the investigation had to be suspended when Johnson left office for jurisdictional reasons, if he is elected to an office covered by the Ethics Act in the future the investigation will resume and failure to cooperate will be addressed at that time.

It’s understandable that the Ethics Act, which exists to “ensure that elected and appointed State agency officials exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue influence” can not apply to private citizens, and the jurisdiction of the Ethics Commission ends when the individual under investigation is no longer considered a “covered person.”  But what’s really troubling about how all this played out is how easy it was for Mark Johnson to simply run out the clock for nearly a year and avoid accountability for his possible misuse of state resources.

A law that requires the Ethics Commission to conduct inquiries in a timely manner needs to include some sort of enforcement mechanism to enable them to do that.  There is powerful disincentive for unethical elected officials to comply with an investigation that may end with their removal from office, and Johnson’s playbook sends a clear message to others that cooperation is optional.

Mark Johnson seems likely to run for office in the future.  He said in a December mass email to educators, “My time in office concludes, for now, at the end of this month.”  There is no statute of limitations on ethics complaints in North Carolina, and if Johnson takes office again there are plenty of people with long memories who will ensure that he is held accountable.  In the meantime, this toothless ethics law needs to be fixed to make it less likely that our current leaders abuse their power as they serve North Carolinians.

You can read the Ethics Commission’s report in its entirety below:

Mark-Johnson-Ethic-Commission-Notice-of-Investigation-Suspension

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