STATE OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK v. CHARLES COLEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OPERATED SCHOOL

DISTRICT OF THE CITY OF NEWARK,

Plaintiff-Appellant,

v.

CHARLES COLEMAN,

Defendant-Respondent.

October 28, 2016

Argued October 13, 2016 Decided

Before Judges Simonelli, Carroll, and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-877-15.

Robert M. Tosti argued the cause for appellant (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Mr. Tosti, of counsel and on the briefs).

Stuart Ball argued the cause for respondent.

PER CURIAM

Plaintiff, the State-Operated School District of the City of Newark (District), appeals from an April 27, 2015 Law Division order confirming an arbitration award rendered pursuant to the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1. The award dismissed tenure charges of unbecoming conduct brought by the District against defendant Charles Coleman, a tenured teacher in the District, based on spoliation of evidence. We affirm.

For the narrow purposes of this appeal, the facts and procedural history can be succinctly summarized. Defendant has been employed by the District as a teacher in various schools since the 2004-05 school year. Defendant's employment with the District has been punctuated by a series of ongoing disputes. Notably, in 2008, the District notified defendant that he would be "non-renewed" for the 2008-09 school year. Defendant challenged his termination as improper, and the case was transferred to the Office of Administrative Law where it ultimately settled in defendant's favor in 2010. Notwithstanding that settlement, defendant contends that he remained "the victim of retaliation and a crusade to purge him from the District." He claimed that he has since been repeatedly transferred between schools and "the rubber room at the District Offices," for which the District gave him "contradictory and obfuscatory" explanations.

Defendant was assigned to the Ann Street School for only a few days when, on September 26, 2012, he was cited for: (1) "interactive praying in hallway" on September 24, 2012, when he allegedly prayed in an "overt, interactive manner," thereby "negatively impact[ing] the overall flow of the school and hallway deportment;" and (2) allegedly reporting late to a faculty meeting on September 25, 2012 and leaving the meeting early. On September 26, 2012, defendant was also cited for being absent from the auditorium during a class picture; deviating from his daily work schedule by leaving the building to move his car; and reporting back five minutes late from lunch.

On September 27, 2012, defendant allegedly tore up the memos he received about his conduct at the new school and threw the pieces of paper back at the Principal, striking her with several of them. Defendant then left the room. The Principal reported that she felt threatened by the incident, which purportedly occurred in the school's main office in the presence of several staff members. Defendant was escorted from the property and instructed not to return.

On May 19, 2014, the District filed tenure charges of unbecoming conduct against defendant based on the September 2012 events. On July 17, 2014, the District certified the charges to the Commissioner of Education and suspended defendant without pay for 120 days, effective July 21, 2014.

On July 25, 2014, defendant filed an answer denying all the allegations set forth in the tenure charges. Defendant averred that the encounter with the Principal "occurred immediately after [he] had been presented with a 'charge' of 'interactive praying.'" Defendant explained

The fact is that [the] Principal [] had been keeping me waiting for hours, so I took the opportunity to engage in a brief prayer that involved absolutely no other individual in any way. It was a) entirely silent, b) entirely private, and c) completely unobtrusive. Thus, I was upset and angry to receive a formal charge that was legally improper, factually inaccurate and clearly provocative. I expressed my objection, ripped the paper with the charge and threw it on the ground. I did not assault [the] Principal [] verbally or physically in any way.

In his second affirmative defense, defendant stated that the charges "were motivated in substantial part by improper and illegal considerations reflecting improper and illegal bias and discrimination including antipathy to my religious beliefs and practices and retaliation for prior events including my successful challenge to previous accusations of misconduct."

On August 11, 2014, the Department of Education referred the charges to arbitration pursuant to N.J.S.A. 18A:6-16. Prior to the arbitration hearing, defendant moved to dismiss the charges based on the Division's spoliation of evidence from defendant's personnel file that defendant claimed was vital to his retaliation and bias discrimination defenses. The District admitted that defendant's personnel file was missing records that should have been available, but argued they were not germane to the present charges. The arbitrator found that the District could not unilaterally make that determination, and cited the potentially exculpatory nature of the requested but missing documents. Accordingly, the arbitrator dismissed the charges without prejudice and ordered that defendant be made whole for all lost compensation and benefits. The District was granted the right to refile the charges conditioned on the production of the missing documents, including files of prior cases brought against defendant and all documents referenced in defense counsel's emails dated September 26 and October 23, 2014.

The District filed a complaint in the Law Division in which it sought to vacate the arbitration award and remand the matter for a full hearing. The District argued that, in dismissing the charges, the arbitrator exceeded his powers within the meaning of N.J.S.A. 2A:24-8(d). Defendant filed an answer and counterclaim seeking to confirm the arbitration award.

In an April 27, 2015 order and written opinion, the trial court confirmed the arbitration award. The judge rejected the District's argument that the arbitrator exceeded his authority by failing to apply pertinent law or to consider the impact of his decision on the public welfare. The judge also rejected the District's contention that, because the arbitrator refused to conduct a full hearing on the charges, the resulting award was procured by "undue means." The judge further found that the lost or destroyed evidence was solely within the District's control; the District had a legal duty to maintain the evidence; and the District was solely responsible for the failure to maintain the records.

Additionally, the judge concurred with the arbitrator that the lost or destroyed records were "essential to defendant's defense." She noted

[T]he incidents which underlie the charge of conduct unbecoming were merely the last in a series of events between defendant and the District, including defendant's charge of sexual harassment against a vice principal, a non-renewal of tenure hearing in 2006 [in] which defendant successfully obtained a rescission; multiple transfers between schools in the [D]istrict; non-renewal notices in 2008 2009 and a successful challenge by defendant with the aid of the Newark Teachers Union, transfers to the so-called "rubber room," notification in 2012 that he was "non-renewed" despite the fact that he had achieved tenure in 2010; and finally the alleged assault with torn up paper which should have been recorded by video or CCTV cameras, none of which are available.

Citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001), the judge concluded that the remedy of dismissal without prejudice, imposed by the arbitrator due to the admitted spoliation of evidence by the District, was proper and within the arbitrator's authority. In considering whether the arbitrator should have chosen to impose alternative, lesser sanctions, the judge reasoned

As there is no jury in an arbitration, there is no way to implement an instruction to "level the playing field [."] There is no means by which to exclude evidence, as defendant is not prejudiced by the evidence, but by [the] District's failure to preserve and produce that evidence . . . . Likewise, a money sanction will serve no purpose, and against a public entity would only increase the tax burden on the citizens of the District. [The arbitrator] essentially found that revocation of defendant's license, an extreme sanction depriving defendant of his livelihood, would be improper without defendant having the benefit of all his records which the District was legally obligated to keep, and which may have contained exculpatory material which would provide defendant a defense in this case. In effect, [the arbitrator] used the spoliation inference to infer against the District, that the missing records did contain such exculpatory evidence and "presumed all things against the destroyer." He tailored the remedy by entering it without prejudice, meaning that the District could reinstate the matter if they produced the documents they acknowledged were lost or destroyed. That the District cannot produce those documents, of which it was charged with custody, control and preservation, does not mean the sanction imposed is unduly harsh or contrary to the holdings in the case law.

The court therefore confirmed the arbitrator's award, concluding it was "reasonably debatable and consistent with law and public policy." This appeal followed.

In reviewing a trial court's award confirmation, we owe no special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013). Because the trial court's decision to confirm the arbitrator's award is a decision of law, our review of that confirmation is de novo. See Minkowitz v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013) (quoting Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).

On appeal, the District argues that the trial court erred in applying the "reasonably debatable" standard of review, rather than the heightened scrutiny of "substantial credible evidence," to confirm the arbitration award. The District also argues that, by not holding a hearing on the tenure charges, the arbitrator "imperfectly executed" his powers in accordance with N.J.S.A. 2A:24-8(d) and failed to issue a "final and definite award," and thus the award was procured by "undue means." We do not find these arguments persuasive.

In Pugliese v. State-Operated School District of City of Newark, 440 N.J. Super. 501, 510 (App. Div. 2015), we noted that, prior to its amendment in 2012, N.J.S.A. 18A:6-16 provided

[I]f the [C]ommissioner determined that [tenure] charges, if sufficient, warranted dismissal, the matter was referred to an administrative law judge (ALJ). The ALJ issued a recommended decision, which the Commissioner could adopt, modify or reject. Thus, the agency, using its expertise, reviewed the ALJ's decision. Thereafter, an agency determination could be appealed directly to the Appellate Division. [That] agency review process no longer exists.

[Ibid. (internal citations omitted).]

In Bound Brook Bd. of Educ. v. Ciripompa, 442 N.J. Super. 515, 518 (App. Div. 2015), we noted that, following the 2012 amendment to N.J.S.A. 18A:6-16, "[i]f 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." We reviewed the procedures applicable to arbitration hearings conducted under the revised statutory rubric, id. at 518-20, and noted the pertinent standard for reviewing such arbitration awards

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;

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. [v. Local 196, I.F.P.T.E., 190 N.J. 283, 294 (2007)]).

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).

[Bound Brook, supra, 442 N.J. Super. at 519-20.]

As we also noted in Bound Brook, "'undue means' ordinarily encompasses . . . more than whether a mere mistake occurred." Id.at 524 (citing Minkowitz, supra, 433 N.J. Super.at 150). Rather, to constitute undue means,

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.

[Bound Brook, supra, 442 N.J. Super. at 524 (citing Minkowitz, supra, 433 N.J. Super. at 150-51) (citation and internal quotation marks omitted).]

In the present case, we acknowledge that, at least under the prior statutory framework, our standard of review of public sector arbitration awards required that we uphold the arbitrator's decision so long as it is "reasonably debatable." See Linden Bd. of Educ., supra, 202 N.J. at 276. Because the trial court's decision here preceded our decisions in Pugliese and Bound Brook, the trial judge may have justifiably relied on the "reasonably debatable" standard in confirming the arbitrator's award. Nonetheless, having reviewed the record, we conclude that the trial court's findings are supported by "substantial credible evidence," and we find no basis to disturb them. Moreover, we discern no mistake of law by the arbitrator, who correctly determined that the District spoliated material evidence, and correctly fashioned an appropriate legal remedy. Thus, contrary to the District's arguments, the arbitrator did not exceed his powers in dismissing the tenure charges without prejudice, nor was the award rendered by "undue means" by virtue of the arbitrator's resulting determination not to conduct a full hearing on the charges.

Affirmed.