Bound Brook Board of Education v. Glenn Ciripompa (076905)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Bound Brook Board of Education v. Glenn Ciripompa (A-57-15) (076905)
Argued November 9, 2016 -- Decided February 21, 2017
Timpone, J., writing for a unanimous Court.
In this appeal, the Court determines whether an arbitrator exceeded his authority by applying the standard for
proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim
of unbecoming conduct in a tenured teacher disciplinary hearing.
Defendant Glenn Ciripompa is a tenured high school math teacher, in the Bound Brook School District
(District). Defendant’s behavior came under the scrutiny of the Bound Brook Board of Education (Board) after the
Board received copies of student Twitter posts alleging “Mr. C” was electronically transmitting nude photographs.
An investigation uncovered defendant’s pervasive misuse of his District-issued laptop and iPad, as well as evidence
of inappropriate behavior toward female colleagues, often in the presence of students. The results of the
investigation spurred the Board to seek defendant’s termination from his tenured position and served as the
substantive allegations of the two-count tenure complaint against defendant.
Count I of the complaint centered on defendant’s improper use of the District-issued laptop and iPad. The
District’s policy prohibits “all employees and students using District computers, iPads and District networks” from
accessing content for “illegal, inappropriate or obscene purposes, or in support of such activities.”
Count II set forth allegations concerning defendant’s inappropriate behavior, noting that “[t]eaching Staff
members in the Bound Brook School District, including Mr. Ciripompa, receive training with respect to appropriate
conduct towards staff members and workplace harassment on an annual basis,” and that “[i]nterviews of female staff
members revealed that Mr. Ciripompa has repeatedly engaged in unprofessional, inappropriate and potentially
harassing behavior towards female staff members.”
The concluding prayer for relief applied to both counts of the complaint. It stated that “the foregoing
unbecoming conduct warrants [defendant’s] dismissal from the Bound Brook Borough School District . . . .”
Pursuant the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1, the charges were
brought to the Commissioner of Education and, when the Commissioner agreed that the charges warranted
termination, to an arbitrator. The arbitrator found that the Board had proven the allegations underlying Count I but
dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay.
The arbitrator began his analysis of Count II by noting that, “[w]hile the charges contained in Count II do
not specifically state sexual harassment, it is clear from the nature of the allegations and the cited policy that this is
in fact the case, as [defendant] has likewise recognized.” The arbitrator then announced that, under this Court’s
decision in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 610 (1993), a successful claim for sexual harassment
requires a showing that “working conditions were affected by the harassment to the point at which a reasonable
woman would consider the working environment hostile.” The arbitrator found that defendant’s conduct did not
meet the Lehmann standard and concluded that misuse of the District-issued electronics did not justify defendant’s
removal from his tenured teaching position.
The District sought review in 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.”
1
On appeal, the Appellate Division reversed the Chancery Division’s decision vacating the arbitral award
and reinstated the suspension. 442 N.J. Super. 515, 518 (App. Div. 2015). The panel found no error in the
arbitrator’s application of the Lehmann standard to the charges proffered against defendant. Id. at 526.
The Court granted the Board’s petition for certification, limited to the 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. 224 N.J. 280 (2016).
HELD: The arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual
harassment. The re-characterization of Count II erroneously tasked the Board with substantiating charges it did not file
with evidence it did not proffer. The arbitrator’s review was not “consonant with the matter submitted,” Grover v.
Universal Underwriters Ins. Co., 80 N.J. 221, 231 (1979); rather, he “imperfectly executed his powers” as well as
exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in
support of termination. N.J.S.A. 2A:41-8(d). The arbitrator’s award is therefore invalid.
1. Judicial review of an arbitration award is very limited. An arbitrator’s award is not to be cast aside lightly. It is
subject to being vacated only when it has been shown that a statutory basis justifies that action. (p. 8)
2. Under New Jersey’s TEHL, “[t]he arbitrator’s determination shall be final and binding,” but “shall be subject to
judicial review and enforcement as provided pursuant to N.J.S.[A.] 2A:24-7 through N.J.S.[A.] 2A:24-10.” N.J.S.A.
18A:6-17.1. Pursuant to the cross-referenced statutes, there are four bases upon which a court may vacate an arbitral
award. N.J.S.A. 2A:24-8(a) to -(d). The claim of error in this case implicates subsection (d) of N.J.S.A. 2A:24-8,
which provides for vacatur “[w]here the arbitrators exceeded or so imperfectly executed their powers that a mutual,
final and definite award upon the subject matter was not made.” (pp. 9-10)
3. Limits to the arbitrator’s authority are defined by statute, N.J.S.A. 2A:24-8, as well as by the questions framed by
the parties in a particular dispute. Indeed, an arbitrator’s award “should be consonant with the matter submitted.
Otherwise, the determination is contrary to the authority vested in him.” Grover, supra, 80 N.J. at 231. The Third
Circuit addressed “allegation[s] that the arbitrators exceeded their authority by resolving an issue the parties did not
intend to submit” under 9 U.S.C.A. § 10(a)(4), which is virtually identical to N.J.S.A. 2A:24-8(d), by considering
“whether the arbitrators manifestly exceeded their authority in interpreting the scope of the parties’ submissions.”
Metromedia Energy, Inc. v. Enserch Energy Servs., 409 F.3d 574, 579 (3d Cir. 2005), cert. denied, 546 U.S. 1089(2006). The Court agrees that a claim that an arbitrator decided a legal question not placed before him or her by the
parties is tantamount to a claim that the arbitrator “imperfectly executed [his or her] powers” as well as a claim that
the arbitrator exceeded his or her authority within the meaning of N.J.S.A. 2A:24-8(d). (pp. 10-12)
4. Proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct. 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 has made it clear that the failure of
a school board to prove a different offense does not preclude a finding of unbecoming conduct. Claims of hostile
work environment, sexual harassment and unbecoming conduct are governed by separate, distinct legal standards
and in separate, distinct legal contexts. (pp. 12-14)
5. There are settings in which sexual harassment claims may provide the underpinnings of an unbecoming conduct
charge. This is not one of them. The arbitrator erred in his reliance on Lehmann because he imposed a different and
inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim.
The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to
impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context. The instant matter
is not an employee-versus-employer dispute that requires application of the Lehmann standard. Indeed, that standard
distorts the evaluatory method pertinent to this matter, making it inappropriate for consideration here. (pp. 14-18)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED for arbitration with
a new arbitrator.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-57 September Term 2015
076905
BOUND BROOK BOARD OF
EDUCATION,
Plaintiff-Appellant,
v.
GLENN CIRIPOMPA,
Defendant-Respondent.
Argued November 9, 2016 – Decided February 21, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 442 N.J. Super. 515 (App. Div.
2015)
Robert J. Merryman argued the cause for
appellant (Apruzzese, McDermott, Mastro &
Murphy, attorneys).
Arnold M. Mellk argued the cause for
respondent (Mellk O'Neill, attorneys; Edward
A. Cridge, on the brief).
Robert A. Greitz argued the cause for amicus
curiae New Jersey School Boards Association
(Cynthia J. Jahn, General Counsel,
attorney).
JUSTICE TIMPONE delivered the opinion of the Court.
In this case we determine whether an arbitrator exceeded
his authority by applying the standard for proving a hostile-
work-environment, sexual-harassment claim in a law against
1
discrimination (LAD) case to a claim of unbecoming conduct in a
tenured teacher disciplinary hearing. We find that he did.
Defendant Glenn Ciripompa is a tenured high school math
teacher, in the Bound Brook School District (District). The
Bound Brook Board of Education (Board) charged defendant with
two counts of unbecoming conduct. Reviewing under the Tenure
Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1, the
arbitrator determined that the Board failed to prove that the
conduct charged in the second count met the four-prong hostile
work environment test set forth in Lehmann v. Toys ‘R’ Us, Inc.,
132 N.J. 587, 603-04 (1993).
The arbitrator impermissibly converted the second charge
into one of sexual harassment. Accordingly, we reverse the
judgment of the Appellate Division and remand for arbitration
with a new arbitrator to determine whether defendant committed
unbecoming conduct, and any appropriate penalty.
I.
We distill the following pertinent facts from the record.
Defendant’s behavior came under Board scrutiny after the Board
received copies of student Twitter posts alleging “Mr. C” was
electronically transmitting nude photographs. An investigation
uncovered defendant’s pervasive misuse of his District-issued
laptop and iPad, as well as evidence of inappropriate behavior
toward female colleagues, often in the presence of students.
2
The results of the investigation spurred the Board to seek
defendant’s termination from his tenured position and served as
the substantive allegations of the two-count tenure complaint
against defendant.
Count I of the complaint, unambiguously labelled “Conduct
Unbecoming,” centered on defendant’s improper use of the
District-issued laptop and iPad. The District’s policy
prohibits “all employees and students using District computers,
iPads and District networks” from accessing content for
“illegal, inappropriate or obscene purposes, or in support of
such activities.” The complaint alleged that defendant had
“received and signed for a copy of the District’s acceptable use
policy.” Evidence adduced at the arbitration hearing
established that defendant used the devices, sometimes during
work hours, on the District computer network to send explicit
pictures of himself and to seek similar pictures in return from
various women on the internet. On the District-issued devices,
defendant saved nude pictures and sexually explicit emails, sent
and received by defendant, including negotiations for paid
sexual services.
Count II, without a specific label, set forth the following
allegations:
1. Teaching Staff members in the Bound Brook
School District, including Mr. Ciripompa,
receive training with respect to appropriate
3
conduct towards staff members and workplace
harassment on an annual basis.
2. During the 2013-14 School Year complaints
were received about Mr. Ciripompa’s
inappropriate conduct towards female staff
members.
3. Interviews of female staff members
revealed that Mr. Ciripompa has repeatedly
engaged in unprofessional, inappropriate and
potentially harassing behavior towards female
staff members.
4. On two occasions Mr. Ciripompa asked
female staff members out on dates in front of
students, thereby making the staff members
very uncomfortable.
5. Mr. Ciripompa has repeatedly commented
about the physical appearance and dress of
female staff members, making them very
uncomfortable.
6. Mr. Ciripompa sent flowers to a female
staff member, using students to deliver the
flowers, along with messages that the female
staff member found to be inappropriate.
The concluding prayer for relief applied to both counts of
the complaint. It stated that “the foregoing unbecoming conduct
warrants [defendant’s] dismissal from the Bound Brook Borough
School District in accordance with N.J.S.A. 18A:6-10.”
In support of the charges, the Board produced physical
evidence taken from defendant’s Board-issued computer and iPad,
as well as testimonial evidence that defendant, in the presence
of students, propositioned staff members to date him and
commented on the physical appearance of female staff. Notably,
4
defendant’s remark about the tight fit of a female teacher’s
pants prompted a follow-up question by a student who was present
when defendant uttered the remark. Defendant also used a
student as his personal courier to deliver flowers and
“inappropriate” messages to a colleague he was pursuing.
In accordance with the TEHL, the Board determined by a
majority vote that the evidence supported the charges and
warranted dismissal. The Commissioner of Education
(Commissioner) reviewed the charges and agreed they warranted
termination. The charges were then submitted for review by an
arbitrator, pursuant to N.J.S.A. 18A:6-16. The arbitrator found
that the Board had proven the allegations underlying Count I but
dismissed Count II with prejudice, reducing the penalty from
dismissal to a 120-day suspension without pay.
The arbitrator began his analysis of Count II by noting
that, “[w]hile the charges contained in Count II do not
specifically state sexual harassment, it is clear from the
nature of the allegations and the cited policy that this is in
fact the case, as [defendant] has likewise recognized.” The
arbitrator then announced that, under this Court’s decision in
Lehmann, supra, 132 N.J. at 610, a successful claim for sexual
harassment requires a showing that “working conditions were
affected by the harassment to the point at which a reasonable
woman would consider the working environment hostile.” The
5
arbitrator emphasized that the subjective feelings of the female
staff members were insufficient to establish a hostile work
environment claim. He found that defendant’s conduct was not
severe or pervasive enough to “modify the [female staff
members’] behavior or routine in any material way.” While
announcing that defendant’s “conduct cumulatively amounted to a
shocking abdication of his professional responsibility” and
“rais[ed] bad judgment to an art form,” the arbitrator found,
contrary to evidence presented, that defendant “had no prior
warnings” concerning misuse of the computer system. The
arbitrator concluded that misuse of the District-issued
electronics did not justify defendant’s removal from his tenured
teaching position.
Pursuant to N.J.S.A. 18A:6-17.1(e), the District sought
review in 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.”
On appeal, the Appellate Division reversed the Chancery
Division’s decision vacating the arbitral award and reinstated
the suspension. Bound Brook Bd. of Educ. v. Ciripompa, 442 N.J.
Super. 515, 518 (App. Div. 2015). The panel found no error in
6
the arbitrator’s application of the Lehmann standard to the
charges proffered against defendant. Id. at 526.
We granted the Board’s petition for certification, limited
to the 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. Bound Brook Bd. of Educ. v. Ciripompa, 224 N.J. 280(2016). We granted leave to the New Jersey School Board
Association (Association) to appear as amicus curiae.
II.
The Board urges this Court to reverse the judgment of the
Appellate Division, contending that the arbitrator’s hostile
work environment analysis was improper. The Board argues that
there is a fundamental difference between charges of “unbecoming
conduct” and “sexual harassment” and that the arbitrator
improperly conflated the two to require the Board to prove a
hostile work environment under Lehmann.
In support of the Board’s position, the amicus Association
maintains that the arbitrator lacked the authority to alter or
rewrite the charges. The Association contends that the
arbitrator should have limited his analysis to a determination
of unbecoming conduct. The Association underscores the
practical impossibility of trying to prepare and present
appropriate evidence if “arbitrators [have] the ability to
7
unilaterally change the charges presented.” Further, the
Association asserts that requiring the Board to prove hostile
work environment “would be anathema in a school setting.” It
argues that schools would have no recourse against isolated but
abhorrent incidents that would not rise to the level of a
hostile work environment, yet would satisfy the standard of
unbecoming conduct.
Defendant urges this Court to read the underlying facts of
the count as predicated on allegations of sexual harassment
sufficient to trigger a Lehmann analysis. Defendant highlights
the Board’s own reliance on Lehmann during questioning of
witnesses and on its references to the sexual harassment
policies as indicative of the true nature of Count II -- sexual
harassment.
III.
“Judicial review of an arbitration award is very limited.”
Linden Bd. of Educ. v. Linden Educ. Ass’n ex rel. Mizichko, 202
N.J. 268, 276 (2010). “An arbitrator’s award is not to be cast
aside lightly. It is subject to being vacated only when it has
been shown that a statutory basis justifies that action.”
Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979).
We therefore begin with a review of the circumstances under
which a court may vacate an arbitral award and then consider
whether this case merits such action.
8
A.
New Jersey’s TEHL provides tenured public school teachers
with certain procedural and substantive protections from
termination. N.J.S.A. 18A:6-10 provides that no tenured
employee of the public school system “shall be dismissed or
reduced in compensation . . . except for inefficiency,
incapacity, unbecoming conduct, or other just cause.” If the
charges are substantiated, they are submitted for review by the
Commissioner. N.J.S.A. 18A:6-11. If the Commissioner
determines the tenure charges merit termination, the case is
referred to an arbitrator. N.J.S.A. 18A:6-16. “The
arbitrator’s determination shall be final and binding,” but
“shall be subject to judicial review and enforcement as provided
pursuant to N.J.S.[A.] 2A:24-7 through N.J.S.[A.] 2A:24-10.”
N.J.S.A. 18A:6-17.1. Pursuant to the cross-referenced statutes,
there are four bases upon which a court may vacate an arbitral
award:
a. Where the award was procured by
corruption, fraud or undue means;
b. Where there was either evident partiality
or corruption in the arbitrators, or any
thereof;
c. Where the arbitrators were guilty of
misconduct in refusing to postpone the
hearing, upon sufficient cause being shown
therefor, or in refusing to hear evidence,
pertinent and material to the controversy, or
9
of any other misbehaviors prejudicial to the
rights of any party;
d. Where the arbitrators exceeded or so
imperfectly executed their powers that a
mutual, final and definite award upon the
subject matter submitted was not made.
[N.J.S.A. 2A:24-8.]
Here, the issue is whether the arbitrator impermissibly
transmuted Count II’s allegation of unbecoming conduct into a
charge of hostile work environment sexual harassment and thus
measured the Board’s claim against an improper legal standard,
namely the standard articulated by this Court in Lehmann, supra,
132 N.J. at 603-04. This particular claim of error implicates
subsection (d) of N.J.S.A. 2A:24-8.
“[L]imits to the arbitrator’s authority . . . are defined
by statute, N.J.S.A. 2A:24-8,” as well as “by the questions
framed by the parties in a particular dispute.” Local No. 153,
Office & Prof’l Emps. Int’l Union v. Tr. Co. of N.J., 105 N.J.
442, 449 (1987). Indeed, an arbitrator’s award “should be
consonant with the matter submitted. Otherwise, the
determination is contrary to the authority vested in him.”
Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 231
(1979); cf. Trentina v. Fitzpatrick & Assocs., 135 N.J. 349, 359
(1994)(“If the arbitrators decide a matter not even submitted to
them, that matter can be excluded from the award.” (quoting
10
Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479,
548 (1992))).
The Third Circuit addressed “allegation[s] that the
arbitrators exceeded their authority by resolving an issue the
parties did not intend to submit” under 9 U.S.C.A. § 10(a)(4),
which is virtually identical to N.J.S.A. 2A:24-8(d), by
considering “whether the arbitrators manifestly exceeded their
authority in interpreting the scope of the parties’
submissions.” Metromedia Energy, Inc. v. Enserch Energy Servs.,
409 F.3d 574, 579 (3d Cir. 2005), cert. denied, 546 U.S. 1089,
126 S. Ct. 1021, 163 L. Ed. 2d 852 (2006).
The Third Circuit described how courts review claims that
arbitrators have exceeded their authority:
[A]rbitrators have the authority in the first
instance to interpret the scope of the
parties’ submissions in order to identify the
issues that the parties intended to arbitrate.
When confronted with an allegation that the
arbitrators exceeded their authority by
resolving an issue the parties did not intend
to submit, we will review the arbitrator’s
interpretation of the parties’ intentions
under a “highly deferential” standard.
Nonetheless, this deference is not a rubber
stamp, and our review must focus upon the
record as a whole in determining whether the
arbitrators manifestly exceeded their
authority in interpreting the scope of the
parties’ submissions.
[Metromedia Energy, Inc., supra, 409 F.3d at
579 (discussing Matteson v. Ryder Sys. Inc.,
99 F.3d 108, 112-14 (3d Cir. 1996), cert.
11
denied, 546 U.S. 1089, 126 S. Ct. 1021, 163 L.
Ed. 2d 852 (2006)).]
We agree that a claim that an arbitrator decided a legal
question not placed before him or her by the parties is
tantamount to a claim that the arbitrator “imperfectly executed
[his or her] powers” as well as a claim that the arbitrator
exceeded his or her authority within the meaning of N.J.S.A.
2A:24-8(d).
Having concluded that subsection (d) frames our review of
this matter, we turn to the substance of the Board’s claim.
IV.
We first review the standard applied to a claim of
unbecoming conduct.
This Court has defined unbecoming conduct as conduct “which
adversely affects the morale or efficiency of the [department]”
or “has a tendency to destroy public respect for [government]
employees and confidence in the operation of [public] services.”
In re Young, 202 N.J. 50, 66 (2010) (alterations in original)
(quoting Karins v. Atl. City, 152 N.J. 532, 554 (1998)). We
have also held that a finding of unbecoming conduct “need not
‘be predicated upon the violation of any particular rule or
regulation, but may be based merely upon the violation of the
implicit standard of good behavior which devolves upon one who
stands in the public eye as an upholder of that which is morally
12
and legally correct.’” Karins, supra, 152 N.J. at 555 (quoting
Hartmann v. Police Dep’t of Ridgewood, 258 N.J. Super. 32, 40
(App. Div. 1992)).
Even when the unbecoming conduct alleged has elements
similar to those that might comprise a hostile work environment
claim, this Court has explained that “[t]he absence of
[harassment] evidence in this type of case is not critical. . .
. [I]t is not necessary ‘for an employer to allow events to
unfold to the extent that the disruption of the office and the
destruction of working relationships is manifest before taking
action.’” Karins, supra, 152 N.J. at 561-62 (quoting Connick v.
Myers, 461 U.S. 138, 152, 103 S. Ct. 1684, 1692, 75 L. Ed. 2d
708, 723 (1983)).
Stated otherwise, proving hostile work environment is not
necessary to satisfy the burden of showing unbecoming conduct.
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 has
made it clear that the failure of a school board to prove a
different offense does not preclude a finding of unbecoming
conduct. In Young, supra, for example, this Court permitted
tenure charges of unbecoming conduct based on a student’s
13
allegations of sexual abuse that were deemed unfounded by the
Department of Children and Families (DCF). 202 N.J. at 68-69.
We explained that although the “DCF might conclude that sexual
contact between a student and his former teacher does not
constitute abuse or neglect under N.J.S.A. 9:6-8.21(c),” that
determination “is a far cry from suggesting that it is not
conduct unbecoming a school employee.” Id. at 69-70.
Because claims of hostile work environment, sexual
harassment and unbecoming conduct are governed by separate,
distinct legal standards and in separate, distinct legal
contexts, we next turn to the specifics of this case to consider
whether the arbitrator correctly determined that Count II of the
Board’s complaint was properly subjected to the Lehmann
standard.
V.
Count II of the Board’s complaint claimed that defendant
“engaged in unprofessional, inappropriate and potentially
harassing behavior towards female staff members,” and the coda
to the complaint characterized the ground for termination,
developed through both counts of the charges, as defendant’s
“unbecoming conduct.” The Board framed the issue before the
arbitrator as follows: “Has the Board of Education established
the Tenure Charges of conduct unbecoming by a preponderance of
the evidence?” This language clearly demonstrates that the
14
basis for the complaint was a violation of the District’s code
of conduct by “engag[ing] in inappropriate language or
expression in the presence of pupils.” The Board’s proofs in
Count II focused on defendant’s repeated propositions of his co-
workers in the presence of students, his inappropriate use of
students as couriers to deliver flowers and inappropriate
messages to colleagues he was pursuing, and his lascivious
comments, made in the presence of students, about a colleague’s
clothing.
While there is passing reference to defendant’s
“potentially harassing behavior” in the charge, even a cursory
reading of the complaint, and the underlying facts and evidence,
demonstrate that the basis for discipline was broader misconduct
of undermining the morale of his co-workers and behaving
inappropriately when students were present.
This count was premised on the Board’s assertion that
defendant’s actions violated Board Policy Number 4281, which
addresses “Inappropriate Staff Conduct”:
School staff’s conduct in completing their
professional responsibilities shall be
appropriate at all times. School staff shall
not make inappropriate comments to pupils or
about pupils and shall not engage in
inappropriate language or expression in the
presence of pupils.
The Commissioner of Education has determined
inappropriate staff conduct by a school staff
member outside their professional
15
responsibilities may be considered conduct
unbecoming a public employee.
The arbitrator clearly recognized that the Board had proven
inappropriate conduct when he found defendant’s conduct to be a
fundamental renunciation of his duties and obligations as a
teacher that “raise[d] bad judgment to an art form.”
Despite that conclusion, the arbitrator found that the
Board failed to prove Count II. The arbitrator quoted Board
Policy Number 3362 -- “Sexual Harassment” -- and made only
fleeting reference to the “Inappropriate Staff Conduct” policy
in his discussion of Count II. The arbitrator then applied the
Lehmann standard and found Count II to be unproven because the
“complained of actions [did] not meet the generally recognized
definition of hostile work environment sexual harassment and
[did] not rise to that level.”
There are settings in which sexual harassment claims may
provide the underpinnings of an unbecoming conduct charge. This
is not one of them. Count II of the complaint charges
“unprofessional, inappropriate and potentially harassing
behavior.” The arbitrator disproportionately focused on the
“potentially harassing” allegation in his analysis, ostensibly
disregarding the word “potentially” and the remaining charges in
the sentence. The coupling of “unprofessional, inappropriate
and potentially harassing” should have forewarned the arbitrator
16
that this was not a harassment charge. Indeed, the inclusion of
the word “potentially” reveals that the Board was not claiming
harassment per se.
The explanation we espoused in Karins is instructive: it
is not necessary “for an employer to allow events to unfold to
the extent that the disruption of the office and the destruction
of working relationships is manifest before taking action.”
Karins, supra, 152 N.J. at 561-62 (quoting Connick, supra, 461
U.S. at 152, 103 S. Ct. at 1692, 75 L. Ed. 2d at 723). Surely,
a school board must not be required to prove a “severe and
pervasive” effect for every harassment-based offense that
buttresses a charge of unbecoming conduct. As this Court
explained in Young, a school district will not be hamstrung by
failing to establish a claim beyond unbecoming conduct.
Here, the arbitrator erroneously faulted the Board for
failing to prove a charge that it did not bring. The arbitrator
erred in his reliance on Lehmann because he imposed a different
and inappropriate standard of proof on the Board to sustain its
unbecoming conduct in the presence of students claim. The
arbitrator “imperfectly executed” his power by misinterpreting
the intentions of the Board so significantly as to impose a
sexual harassment analysis, when such an analysis was wholly
ill-suited in this context. The Lehmann standards for hostile-
work-environment, sexual-harassment claims arise in an entirely
17
different context -- under the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
“The LAD was enacted to protect not only the civil rights
of individual aggrieved employees but also to protect the
public’s strong interest in a discrimination-free workplace.”
Lehmann, supra, 132 N.J. at 600. In Lehmann, we established the
standard for a cause of action for hostile work environment
sexual harassment claims under the LAD. Lehmann, supra, 132
N.J. at 592. This Court promulgated a four-prong test, under
which the plaintiff must show that “the complained-of conduct:
(1) would not have occurred but for the employee’s gender; and
it was (2) severe or pervasive enough to make a (3) reasonable
woman believe that (4) the conditions of employment are altered
and the working environment is hostile or abusive.” Id. at 603-
04 (emphasis in original). That standard, however, is not
implicated in a termination hearing under the TEHL. None of the
female employees affected by defendant’s actions are suing the
District-employer for turning a blind eye to sexual harassment
in the workplace. The instant matter is not an employee-versus-
employer dispute that requires application of the Lehman
standard. Indeed, that standard distorts the evaluatory method
pertinent to this matter, making it inappropriate for
consideration here.
18
The re-characterization of Count II erroneously tasked the
Board with substantiating charges it did not file with evidence
it did not proffer. The arbitrator’s review was not “consonant
with the matter submitted,” Grover, supra, 80 N.J. at 231;
rather, he “imperfectly executed his powers” as well as exceeded
his authority by failing to decide whether Count II stated a
successful claim of unbecoming conduct in support of
termination. We find the arbitrator’s award invalid under
N.J.S.A. 2A:41-8(d).
VI.
The judgment of the Appellate Division reinstating the
arbitrator’s award is reversed, and the matter is remanded for
arbitration with a new arbitrator to determine whether defendant
committed unbecoming conduct, and any appropriate penalty.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.
19