Mendham teacher wants sex-related charges tossed

A defense lawyer Wednesday continued pressing for dismissal of an official misconduct indictment against a suspended West Morris Mendham High School teacher who is charged with having sex with one 18-year-old student and soliciting sex from two others.

Morris County Assistant Prosecutor Christopher Schellhorn, meanwhile, argued to Superior Court Judge Stephen Taylor against dismissal of the indictment against Nicole McDonough and said she is welcome to try to convince a jury that sex and sexting with three 18-year-old males was not an “unauthorized act” related to her job as a teacher.

“That’s an excellent trial defense if she wants to try to convince 12 members of the community,” Schellhorn said.

Taylor, sitting in Morristown, had begun hearing arguments this summer about dismissal of the indictment but held off on making a decision until the state’s appellate division ruled in a similar case involving Piscataway High School physical education instructor Adrian McConney.

Defense lawyer Timothy Smith, who represents both McDonough and McConney, had convinced a Superior Court judge in Middlesex County that McConney could not be charged with official misconduct because the underlying basis of the charge -- sex with an adult student -- was not a crime.

The appellate division in July reversed the Middlesex County decision, ruling that a teacher who has sex with a student who is 18 years of age or older can be charged with official misconduct for committing an “unauthorized” act related to the job.

On Wednesday, Smith argued at length -- at times almost screeching --that the indictment should be dismissed because McDonough was never given “reasonable notice” under the law that she could be prosecuted for what Smith believes is a mere violation of the school’s code of conduct against fraternizing with students.

McDonough, 34, of Mount Olive, is not charged with any sex offenses because the three students all were 18 years of age. Instead, she is charged with committing unauthorized acts in connection with her official duties as a teacher.

“This is a victimless crime,” Smith argued.

Smith repeatedly argued that if McDonough could be prosecuted for fraternizing with students, other teachers could be prosecuted for not wearing a tie to school, tweeting Happy Birthday to a student, or coming in late -- all forbidden under the district’s code of conduct.

But the judge asked Smith if alleged sex and sexting with students was equivalent to failing to wear a tie to work.

“You don’t see a difference between those things?” Taylor asked Smith.

“It’s not about someone who wore a tie or didn’t wear a tie or came in five minutes late. That’s not what this case is about,” Taylor said.

The judge reserved decision Wednesday on the motion to dismiss the indictment and said he would issue a written ruling.

He also denied a motion by Smith to examine, in private or “in camera,” the past five years of personnel files of employees in the Morris County Prosecutor’s Office. Smith contended that it is relevant to his case to see whether Prosecutor’s Office employees have ever violated office codes of conduct but not been prosecuted.

The judge said personnel records of Prosecutor’s Office staff are not relevant to the McDonough case. He said a more logical comparison would be whether teachers elsewhere in Morris County were charged with official misconduct after having sex with adult students.

In the Middlesex County case, the appellate division also said there is nothing in the official misconduct statute that says the underlying offense of an “unauthorized act” relating to one’s job has to be criminal in nature. An unauthorized act by a public official can be a crime, violation of a specific policy or a violation of “a duty inherent to an official’s position.”

The statute also speaks of unauthorized acts being committed to gain a benefit for one’s self or another.

McDonough is next due in court on Nov. 19 for a final motion on whether police, armed with a warrant, legally searched her home. McDonough has been extended a plea offer of five years in prison, with five years to be served before parole consideration.

Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.