Bound Brook Board of Education v. Glenn Ciripompa

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2198-14T1
BOUND BROOK BOARD OF
EDUCATION, APPROVED FOR PUBLICATION
Plaintiff-Respondent, October 29, 2015
v. APPELLATE DIVISION
GLENN CIRIPOMPA,
Defendant-Appellant.
__________________________
Argued April 27, 2015 – Decided October 29, 2015
Before Judges Sabatino, Simonelli and
Gilson.
On appeal from the Superior Court of New
Jersey, Chancery Division, Somerset County,
Docket No. C-12067-14.
Arnold M. Mellk argued the cause for
appellant (Mellk O'Neill, attorneys; Mr.
Mellk, of counsel; Gidian R. Mellk and
Edward A. Cridge, on the briefs).
Robert J. Merryman argued the cause for
respondent (Apruzzese, McDermott, Mastro &
Murphy, P.C., attorneys; Mr. Merryman, on
the brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
This appeal concerns a teacher-tenure arbitration conducted
pursuant to Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-
10 to -18.1. Appellant Glenn Ciripompa is a tenured high school
math teacher in the Bound Brook School District (District) who
faced dismissal based on two charges of unbecoming conduct. The
first charge involved his improper use of a District-provided
laptop and iPad to send and receive numerous sexually explicit
emails and nude photographs of women and himself via the
Internet in violation of the District's computer and Internet-
use policy. The second charge involved his unprofessional,
inappropriate and potentially harassing conduct toward four
female staff members. The arbitrator determined that the
District proved the first charge but not the second charge. The
arbitrator modified the penalty from dismissal to a 120-day
suspension without pay.
The Bound Brook Board of Education (Board) then filed an
action in the Chancery Division challenging the arbitrator's
award. In a January 8, 2015 order, the court vacated the award
and remanded for a new arbitration hearing before a different
arbitrator. We reverse the vacatur of the arbitration award and
reinstate the award. We also reject Ciripompa's argument that
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the court lacked authority to order a rehearing before a
different arbitrator beyond forty-five days of the first
arbitration hearing date.
We begin with a brief review of the relevant authority.
Under the TEHL, no tenured teacher shall be dismissed for
unbecoming conduct without a hearing after written charges have
been certified against the teacher. N.J.S.A. 18A:6-10. Any
charge made against a tenured teacher must be filed in writing
with the secretary of the employing board of education, and a
written statement of evidence under oath to support such charge
must be presented to the board. N.J.S.A. 18A:6-11. The board
must provide the teacher with a copy of the charges and
statement of evidence and afford the teacher an opportunity to
submit a written statement. Ibid.
The board must then determine by a majority vote of its
full membership whether there is probable cause to credit the
evidence in support of the charge and whether such charge, if
credited, is sufficient to warrant a dismissal. Ibid. If the
board so determines, it must notify the teacher and forward the
written charge to the Commissioner of Education (Commissioner)
for a hearing pursuant to N.J.S.A. 18A:6-16, together with a
certification of such determination. Ibid.
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If the Commissioner determines the charge is sufficient to
warrant dismissal, he shall refer the case to an arbitrator
pursuant to N.J.S.A. 18A:6-17.1 for a hearing. N.J.S.A. 18A:6-
16. Upon referral, the board must provide all evidence on which
it intends to rely at the arbitration hearing and will be
precluded from presenting any additional evidence, except for
purposes of impeachment of witnesses. N.J.S.A. 18A:6-
17.1(b)(3). The teacher must provide all evidence on which he
or she intends to rely at least ten days prior to the hearing
and will be precluded from presenting any additional evidence,
except for purposes of impeachment of witnesses. Ibid.
The arbitration hearing must be held within forty-five days
of the assignment of the arbitrator to the case. N.J.S.A.
18A:6-17.1(b)(1). The arbitrator must render a written decision
within forty-five days of the first hearing date. N.J.S.A.
18A:6-17.1(d). All of the timelines set forth in N.J.S.A.
18A:6-17.1 "shall be strictly followed[.]" N.J.S.A. 18A:6-
17.1(f).
The arbitration is conducted under the labor arbitration
rules of the American Arbitration Association (AAA). N.J.S.A.
18A:6-17.1(c). Under AAA Labor Arbitration Rule 27, the
arbitrator is not bound by the rules of evidence and may
determine the admissibility, relevance, and materiality of the
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evidence offered and exclude evidence deemed to be cumulative or
irrelevant. However, the arbitrator must consider evidence that
is pertinent and material to the controversy. Manchester Twp.
Bd. of Educ. v. Thomas P. Carney, Inc., 199 N.J. Super. 266, 274
(App. Div. 1985).
The arbitrator's determination is final and binding, is not
appealable to the Commissioner or State Board of Education, but
is subject to judicial review and enforcement pursuant to
N.J.S.A. 2A:24-7 to -10. N.J.S.A. 18A:6-17.1(e). It is well-
settled that "[a]rbitration awards are favored by the courts and
are generally presumed to be valid." Local No. 153, Office &
Prof'l Emps. Int'l. Union, AFL-CIO v. The Trust Co. of N.J., 105
N.J. 442, 448 (1987). Accordingly, judicial review of an
arbitration award is very limited. Linden Bd. of Educ. v.
Linden Educ. Ass'n, 202 N.J. 268, 276 (2010). The court may
vacate an arbitration award in the following instances:
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 of any other misbehaviors prejudicial to
the rights of any party;
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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.]
"Additionally, 'a court may vacate an award if it is contrary to
existing law or public policy.'" Borough of East Rutherford v.
East Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (quoting
Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1,
11 (2007)). "However, '[r]eflecting the narrowness of the
public policy exception, that standard for vacation will be met
only in rare circumstances.'" Ibid. (quoting N.J. Tpk. Auth.,
supra, 190 N.J. at 294).
In reviewing an arbitration award, the court may not
substitute its own judgment for that of the arbitrator. Id. at
201; Linden Bd. of Educ., supra, 202 N.J. at 277. When the
arbitration is compelled by statute, "judicial review should
extend to consideration of whether the award is supported by
substantial credible evidence present in the record."
Amalgamated Transit Union v. Mercer City Improvement Auth., 76
N.J. 245, 254 (1978).
In this case, the court vacated the arbitration award as
procured by undue means pursuant to N.J.S.A. 2A:24-8(a) based on
the arbitrator's alleged erroneous evidentiary rulings and
dismissal of the second charge. We review the court's decision
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on a motion to vacate an arbitration award de novo. Minkowitz
v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013).
The following facts are germane to our review. The matter
began when the District's superintendent received a copy of
"Twitter" posts, which stated that a Bound Brook High School
teacher, identified as "Mr. C.," was transmitting nude
photographs of himself via the Internet. The "Twitter" posts
prompted the superintendent to search the electronic system with
respect to Ciripompa. The search revealed that Ciripompa used
his District-provided laptop and iPad, sometimes during working
hours and on District property, to send and receive numerous
sexually explicit emails and nude photographs of women and
himself. None of those emails was exchanged with or shown to
students or school staff. Separately, the superintendent
learned of Ciripompa's inappropriate and potentially sexually
harassing conduct toward four female staff members in the high
school.
In July 2014, the Board instituted the two previously
mentioned tenure charges against Ciripompa, seeking his
dismissal for unbecoming conduct. The Board certified the
charges, suspended Ciripompa, and forwarded the charges to the
Commissioner. On July 23, 2014, the Commissioner referred the
charges for arbitration.
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On August 8, 2014, a month before the scheduled arbitration
hearing, the Board submitted the "Twitter" posts for admission
during the arbitration hearing. The arbitrator excluded this
evidence as untimely under N.J.S.A. 18A:6-17.1(b)(3), but
permitted the Board to reference that this evidence prompted the
District's investigation of Ciripompa, and to use this evidence
in rebuttal. In his written arbitration award the arbitrator
acknowledged that the content of the "Twitter" posts indicating
that a Bound Brook high school teacher was sending nude photos
of himself "was 100% accurate."
Ciripompa did not dispute the two tenure charges or any of
the evidence the Board presented supporting the charges.
Instead, over the Board's objection, he presented the testimony
of an expert psychiatrist in mitigation. The psychiatrist
opined that Ciripompa presented no sexual or other threat to his
students or members of the school community, he never engaged in
any aberrant sexual activity, and he demonstrated poor judgment
in using school equipment to pursue his own personal activities.
The expert expressed his belief that Ciripompa understood his
lapse in judgment and was completely aware of the implications
of his actions, and that once this matter was resolved,
Ciripompa would not engage in similar conduct. The expert also
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believed that suspension and possible dismissal appeared to be
an excessive response to Ciripompa's actions.
In his written award, the arbitrator concluded the Board
proved the first tenure charge. However, the arbitrator found
that: the inappropriate communications involved consenting
adults, not students or staff members; all of the inappropriate
communications, except four, were not sent or received during
work hours or on District property; none of the four
inappropriate communications caused any harm apart from a
violation of the District's computer and Internet-use policy;
and there was no evidence that any students saw or could have
seen the inappropriate communications.
The arbitrator also concluded the Board did not prove the
second tenure charge. Although the arbitrator found that
Ciripompa's conduct toward female coworkers was both
inappropriate and violated the District's sexual harassment
policy, he concluded the Board failed to establish the conduct
created a hostile work environment under the standards set forth
in Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993), a case
on which both parties relied. The arbitrator found the evidence
was insufficient to prove that Ciripompa's conduct was
sufficiently severe or pervasive to alter the conditions of
employment of the four female staff members and create a hostile
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working environment. The arbitrator emphasized that the
subjective feelings of the female staff workers and Ciripompa's
violation of the District's sexual harassment policy were
insufficient to establish hostile work environment sexual
harassment. Accordingly, the arbitrator dismissed the second
tenure charge with prejudice.
The arbitrator then considered the penalty for the first
charge. The arbitrator noted that Ciripompa's "conduct
cumulatively amounted to a shocking abdication of his
professional responsibility raising bad judgment to an art form"
and that Ciripompa "expressed no remorse for his actions[.]"
However, based on the totality of the circumstances, the
arbitrator determined that Ciripompa could be returned to the
classroom without harm or an injurious effect on the proper
administration of the District. Applying the principles of
progressive discipline, the arbitrator found that Ciripompa had
no prior disciplinary infractions, was "by all indications a
satisfactory teacher[,]" and had no prior warning about misuse
of the computer system. The arbitrator also mentioned, but did
not rely on, the testimony of Ciripompa's expert that Ciripompa
understood his lapse in judgment, was extremely unlikely to
engage in similar behavior, and had no evidence of
psychopathology.
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The arbitrator concluded that the Board failed to justify
Ciripompa's dismissal from his tenured position, the totality of
the circumstances militated against such a result, and there was
no authority supporting the penalty of dismissal under the
circumstances of this case. Accordingly, the arbitrator
modified the penalty from dismissal to a 120-day suspension
without pay.
The Board filed a complaint in the Chancery Division,
seeking an order vacating the arbitration award. The Board
argued, in relevant part, that the award was procured by undue
means under N.J.S.A. 2A:24-8(a) based on the arbitrator's
mistakes of fact and law in changing the nature of and standard
of proof for the second tenure charge, excluding the "Twitter"
posts, and admitting Ciripompa's expert evidence.
In a January 8, 2015 order and written opinion, the trial
judge vacated the arbitration award pursuant to N.J.S.A. 2A:24-
8(a) and ordered a new hearing before a different arbitrator.
The judge found that the "Twitter" posts were pertinent and
material to the controversy and that the arbitrator erred in
excluding them from evidence. The judge also found that the
arbitrator erroneously admitted and relied on Ciripompa's
expert, who rendered a net opinion; changed the nature of the
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second tenure charge; and applied the wrong standard of proof to
the second charge.
On appeal, Ciripompa does not challenge the arbitrator's
findings on the two tenure charges or the modified penalty.
Instead, he contends that the judge erred in vacating the
arbitrator's award or, alternatively, lacked authority to remand
for a new hearing before a different arbitrator. While we do
not condone Ciripompa's conduct, the question before us is
whether the arbitration award was procured by undue means.
"'[U]ndue means' ordinarily encompasses a situation in
which the arbitrator has made an acknowledged mistake of fact or
law or a mistake that is apparent on the face of the record."
Office of Emp. Relations. v. Commc'ns Workers of Am., 154 N.J.
98, 111 (1998). However, to constitute undue means, "[t]he
judicial inquiry must consider more than whether a mere mistake
occurred." Minkowitz, supra, 433 N.J. Super. at 150. Rather,
the
formulation requires that the arbitrator[]
must have clearly intended to decide
according to law, must have clearly mistaken
the legal rule, and that mistake must appear
on the face of the award. In addition, the
error, to be fatal, must result in a failure
of intent or be so gross as to suggest fraud
or misconduct.
[Id. at 150-51 (alteration in original)
(citation and internal quotation marks
omitted).]
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"'Undue means' . . . does not include situations . . . where the
arbitrator bases his decision on one party's version of the
facts, finding that version to be credible." Local No. 153,
Office of Prof'l Emps. Int'l Union, AFL-CIO, supra, 105 N.J. at
450 n. 1.
We discern no mistake of fact or law or mistake that is
apparent on the face of the record regarding the arbitrator's
exclusion of the "Twitter" posts. Although the arbitrator
excluded the actual posts from evidence, he permitted the Board
to reference that the posts prompted the District's
investigation of Ciripompa and to use the posts in rebuttal.
Ciripompa did not contest that the Board learned of his conduct
as a result of the posts, and a review of the content of the
posts does not demonstrate that they would have changed the
outcome of the arbitration. The posts merely stated that a
Bound Brook High School teacher, identified as "Mr. C.," was
transmitting nude photographs of himself via the Internet, and
the arbitrator found that this statement was "100% accurate."
Accordingly, because this evidence was not pertinent and
material to the controversy, there was no error in its
exclusion.
Even if the "Twitter" posts were pertinent and material to
the controversy, their exclusion was harmless. Under the
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harmless error doctrine, "[a]ny error or omission shall be
disregarded . . . unless it is of such a nature as to have been
clearly capable of producing an unjust result[.]" R. 2:10-2.
Because the arbitrator found in the Board's favor on the first
tenure charge, the exclusion of the "Twitter" posts did not
produce an unjust result.
There was no mistake of fact or law or mistake that is
apparent on the face of the record regarding admission of the
expert evidence. The arbitration was governed by the AAA labor
arbitration rules, not the rules of evidence. Under AAA Labor
Arbitration Rule 27, the arbitrator had the discretion to
determine the admissibility, relevance, and materiality of the
evidence offered. The admission of this evidence did not
warrant vacatur of the arbitration award.
Nor was there a mistake of fact or law or mistake that is
apparent on the face of the record regarding the arbitrator's
application of the hostile work environment standard in Lehmann.
Lehmann has been applied in teacher-tenure unbecoming conduct
cases grounded on sexual harassment. For example, in In re
Tenure Hearing of Paul Ash, 96 N.J.A.R.2d 442 (Dep't of Educ.),
the teacher was charged with "conduct unbecoming a tenured
teacher, specifically . . . sexual harassment of a coworker[.]"
Ibid. In evaluating the merits of this charge, the
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Administrative Law Judge (ALJ) relied on Lehmann and concluded
that the charge was supported because the teacher's conduct
created a hostile work environment. Ibid.
Similarly, in In re Tenure Hearing of Wayne Slaughter, EDU
6140-01, initial decision (May 21, 2002), http://
lawlibrary.rutgers.edu/oal/search.html>., the teacher was
charged with "conduct unbecoming a teaching staff member where
he made comments of a sexual nature to students." The ALJ
relied on Lehmann to ascertain whether the teacher's conduct met
the definition of sexual harassment. Id. at 27-28. The ALJ
then sustained the tenure charge after concluding the teacher's
"words, actions and conduct were so severe or pervasive to cause
[a student] to believe that the school setting was a hostile or
abusive environment." Id. at 28. Thus, it is clear that when a
teacher was found to have engaged in sexual harassment under the
Lehmann test, this was sufficient to sustain an unbecoming
conduct charge. See, e.g., In re Tenure Hearing of Robert
Mantone, 93 N.J.A.R.2d 322 (Dep't of Educ.).
Although the second tenure charge against Ciripompa did not
specifically state the words "sexual harassment," it alleged
that Ciripompa acted inappropriately toward female staff
members. Thus, it is clear from the nature of the allegation
that sexual harassment was the basis for the charge. Notably,
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to prove that charge, the Board relied on Lehmann and the
District's sexual harassment policy, which was admitted into
evidence. The policy is couched in Lehmann language –– it
defines sexual harassment in terms of "conduct [that] is severe
and pervasive and has the purpose or effect of unreasonably
altering or interfering with work performance or creating an
intimidating, hostile, or offensive working environment[.]" See
Lehmann, supra, 132 N.J. at 603-04. We are satisfied that the
arbitrator properly applied the Lehmann standard of proof to the
second charge. The arbitrator also made meticulous findings
with respect to the lack of proof for that charge, which the
record amply supports.
Finally, we reject Ciripompa's contention that the court
may only remand for a new arbitration pursuant to N.J.S.A.
2A:24-8 when an award is vacated within the time period required
for the award to be made. Ciripompa argues that because
N.J.S.A. 18A:6-17.1(d) required the award in this case to be
made within forty-five days of the first hearing date, or by
October 20, 2014, the judge could not order a rehearing beyond
that date.
Ciripompa misreads the applicable statutes. N.J.S.A.
18A:6-17.1(b)(1) requires the arbitration hearing to be held
within forty-five days of assignment of the matter to the
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arbitrator. N.J.S.A. 18A:6-17.1(d) requires the arbitrator to
render an award within forty-five days of the first hearing
date. These timelines do not apply to the court's review of an
arbitration award. Once the award has been made, any party may
pursue an appeal in accordance with N.J.S.A. 2A:24-7 to -10.
N.J.S.A. 2A:24-8 provides that "[w]hen an award is vacated and
the time within which the agreement required the award to be
made has not expired, the court may, in its discretion, direct a
rehearing by the arbitrators." Here, there was no "time [limit]
within which the agreement required the award to be made,"
because the arbitration was conducted pursuant to statute, not
an agreement between the parties.
In addition, Ciripompa's interpretation of N.J.S.A. 2A:24-8
is inconsistent with the procedures outlined in N.J.S.A. 18A:6-
17.1. Specifically, after the arbitration award is rendered,
the parties are thereafter entitled to judicial review of the
award and enforcement as provided by N.J.S.A 2A:24-7 to -10.
N.J.S.A. 18A:6-17.1(e). Ciripompa essentially argues that if
judicial review occurs more than forty-five days after the first
hearing date, which it virtually always will, the court is
powerless to remand the matter if it finds a ground to vacate
the award. This interpretation completely undermines the
purpose of affording judicial review of arbitration awards in
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teacher-tenure cases, and is contrary to authority granting the
court the discretion to remand for an arbitration hearing before
a different arbitrator. See In re City of Camden, 429 N.J.
Super. 309, 337-38 (App. Div.), certif. denied, 215 N.J. 485
(2013) (permitting a remand to a different arbitrator "when
deficiencies in the arbitrator's process call into question the
arbitrator's ability to have an open mind regarding the
disposition"); see also Fox v. Morris Cnty. Policemen's Ass'n,
P.B.A. 151, 266 N.J. Super. 501, 520-21 (App. Div. 1993),
certif. denied, 137 N.J. 311 (1994) (holding that upon vacating
an arbitration award, the court has the discretion to remand to
the same arbitrator or different arbitrator); Manchester Twp.
Bd. of Educ., supra, 199 N.J. Super. at 281 (same).
The order vacating the arbitration award is reversed, and
the award is reinstated.
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