Schorr & Associates’ Employment Case of The Week ending February 24, 2017

Bound Brook Board of Education v. Glenn Ciripompa, __ N.J. __, 2017 N.J. LEXIS 227 (N.J. Supreme Court, February 21, 2017)

The Supreme Court this week reversed an arbitrator’s ruling under the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18:6-10-18.1.  This case involved a tenured teacher who was accused of pervasively using school computers to transmit nude photographs and engaging in inappropriate behavior towards female staff members.  The School District brought tenure charges to terminate the teacher, and the matter went to a arbitrator under the TEHL.

Count I alleged that the teacher had violated the school’s policy prohibiting use of the school’s computers for  “illegal, inappropriate or obscene purposes, or in support of such activities.”  Count II charged that the teacher had “repeatedly engaged in unprofessional, inappropriate and potentially harassing behavior towards female staff members.”  After a full arbitration hearing, the arbitrator found that the Board has proven the allegations of Count I, but dismissed Count II with prejudice and reduced the penalty from termination to a 120-day suspension.  The arbitrator’s decision was based upon his finding that the charge of harassing behavior toward female staff members did not rise to the level of a violation of the New Jersey Law Against Discrimination as set forth in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993).

The School Board appealed to the Superior Court, Chancery Division.  The court reversed the arbitrator’s decision, remanding it for a review before a new arbitrator. The court held that the arbitrator “erroneously changed the nature of Count II and imposed an inappropriate standard.”  The Appellate Division reversed and reinstated the suspension, 442 N.J. Super. 515 (App. Div. 2015) .  The Supreme Court granted certification on the limited issue of whether the arbitrator’s reliance on Lehmann in dismissing the Board’s second charge of inappropriate and unprofessional conduct supported vacating the arbitrator’s award.  The Supreme Court unanimously reversed.

The Supreme Court recognized that judicial review of arbitrations are very limited, but may be vacated upon a showing that the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter was not made.”  In this case, the Supreme Court held that the arbitrator decided an issue that not properly before him by applying the NJLAD to a “conduct unbecoming” charge.  The Supreme Court held that proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct.

In doing so, the Supreme Court provided a definition of “conduct unbecoming” for purposes of tenure hearings.  A charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals. It focuses on the morale, efficiency, and public perception of an entity, and how those concerns are harmed by allowing teachers to behave inappropriately while holding public employment.  The Court held that the Lehmann standard is a different standard of proof than a conduct unbecoming charge.  Because the arbitrator distorted the evaluatory method pertinent to this matter, the Supreme Court remanded the matter for a new arbitration with a new arbitrator.

It is good to have a clearer definition of “conduct unbecoming” although it is still not a model of clarity.  It is also important to note that tenure arbitrator rulings are not written in stone and are subject to judicial review under proper circumstances.

Arbitrator: Michael J. Pecklers.
Appellate Judges: Sabatino, Simonelli and Gilson.
Supreme Court: Justice Timpone writing for a unanimous court.