MICHAEL LEFKOWITZ v. THE STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF CAMDEN CAMDEN COUNTY, NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE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-5433-15T4

MICHAEL LEFKOWITZ,

           Plaintiff-Respondent,

     v.

THE STATE-OPERATED SCHOOL
DISTRICT OF THE CITY OF CAMDEN,
CAMDEN COUNTY, NEW JERSEY,

          Defendant-Appellant.
____________________________________________________

           Argued November 14, 2017 – Decided November 29, 2017

           Before Judges Fisher and Fasciale.

           On appeal from Superior Court of New Jersey,
           Law Division, Camden County, Docket No. L-
           1231-16.

           Daniel A. Schlein argued the cause for
           appellant (Adams Gutierrez & Lattiboudere,
           LLC, attorneys; Perry L. Lattiboudere, of
           counsel; Mr. Lattiboudere and Adam S. Herman,
           on the briefs).

           Cosmas P. Diamantis argued the cause for
           respondent   (Zeller   &  Wieliczko, LLP,
           attorneys; Matthew B. Wieliczko and Mr.
           Diamantis, on the brief).

PER CURIAM
     The order appealed arises from tenure charges concerning the

employment    of    plaintiff      Michael     Lefkowitz    with   the   defendant

school district. We are chiefly asked to consider the school

district's contention that the trial judge erred in confirming an

arbitrator's       decision   to     temporarily      restore      plaintiff,        as

required by 
N.J.S.A. 18A:6-14, to the payroll pending a final

ruling – favorable to the school district – on the tenure charges.

Specifically, the school district argues that the arbitrator did

not fairly or fully consider its opposition to plaintiff's emergent

motion for interim relief.

     Our     description      of    the       proceedings   focuses      on     those

circumstances relevant to the interim award. The record on appeal

reveals that the school district filed and served the tenure

charges in question on October 1, 2015, and suspended plaintiff

without pay, effective October 28, 2015, as permitted by 
N.J.S.A.

18A:6-14. On November 6, 2015, plaintiff moved for a summary

decision; the Commission referred the charges and the summary-

decision motion, pursuant to 
N.J.S.A. 18A:6-16, to an arbitrator

for disposition. Opposition to the motion was filed in December,

and the arbitrator denied the motion on January 9, 2016. After

conferring with counsel, the arbitrator scheduled a hearing that

was conducted on February 11, 16, 22, 25, and 26, 2016.



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     On February 22, 2016, during the course of the hearing, the

arbitrator     heard   the   parties'     arguments     about     plaintiff's

statutory entitlement to reinstatement to the payroll pending

disposition of the charges due to the passage of 120 days from the

charges without a decision.1 The school district's attorney argued

at that time that such interim relief could only be considered by

the Commissioner; plaintiff's counsel argued the arbitrator had

jurisdiction    over   the   question     just   as    he   had   been     given

jurisdiction    over   the   entire   dispute.   The    arbitrator   soundly

concluded that he should not assume he possessed jurisdiction and

that the best course would be for someone to seek clarification

from the Commissioner. The arbitrator also stated that if it was

determined the issue had already been or would be delegated to

him, he would "certainly rule on it ASAP."

     During the proceedings before the arbitrator on February 25,

2016, the parties again briefly argued the merits of plaintiff's

statutory entitlement to reinstatement on the payroll. At that

time, the school district argued that plaintiff's motion for a



1 N.J.S.A. 18A:6-14 permits the suspension of "the person against
whom such charge is made, with or without pay, but, if the
determination of the charge . . . is not made within 120 calendar
days after certification of the charges, excluding all delays
which are granted at the request of such person, then the full
salary (except for said 120 days) of such person shall be paid
beginning on the one hundred twenty-first day until such
determination is made."

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summary decision caused a delay in the proceedings that somehow

precluded any statutory obligation to reinstate plaintiff on the

payroll and that it would be entitled to a set off for any

unemployment benefits plaintiff had received.

      On March 9, 2016, plaintiff moved on an emergent basis before

the Commissioner for reinstatement to the payroll. The Director

of the Bureau of Controversies and Disputes advised on March 21,

2016, that the arbitrator "clearly has jurisdiction over the case,

including any motions filed with him." On that same day, the

arbitrator advised the parties of the Director's resolution of the

jurisdictional dispute.

      Three days later, the arbitrator granted the motion even

though the school district had not submitted formal opposition.

The school district forwarded its opposition later that day, and

the   arbitrator    quickly   acknowledged     he     had   reviewed       it   and

"reiterate[d] [his] earlier decision that [plaintiff] shall be

reinstated    to   the   [school   district's]      payroll   retroactive         to

February 2016."

      The    following    month,     the   arbitrator       issued     a     final

arbitration award that sustained the tenure charges. The school

district,    however,    continued   to    withhold    plaintiff's     pay      and

salary despite the arbitrator's March 24, 2016 order.



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     Consequently, plaintiff filed a verified complaint in the Law

Division and obtained an order requiring the school district to

show cause why the arbitrator's                    interim award should not be

confirmed     and        enforced.      The       school     district     opposed       the

application.

     For reasons expressed in his June 30, 2016 oral decision,

Judge   Robert      G.    Millenky      granted     plaintiff's        application      and

directed the school district to pay plaintiff's salary for the

approximate two-month period in question – February 25, 2016 to

April   27,   2016.       When    the    school     district     failed       to   comply,

plaintiff again moved for enforcement and, on August 23, 2016,

Judge Millenky again granted relief. The judge also denied the

school district's motion for a stay, as did we after the school

district commenced this appeal.

     In appealing, the school district argues the trial judge

erred in confirming the arbitrator's interim award by failing to

recognize     that:       (1)    the    arbitrator         "exceeded    his    statutory

authority"     in        deciding      whether      plaintiff     was     entitled        to

reinstatement; (2) the arbitrator "erroneously failed to consider

the [school district's] arguments and evidence"; and (3) plaintiff

was not entitled to reinstatement because he had "contributed to

delays in the arbitration proceedings." We find insufficient merit

in the first and third arguments to warrant discussion in a written

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opinion. R. 2:11-3(e)(1)(E). We add only, as to the first, that

the record demonstrates the Commissioner expressly delegated the

authority to rule on the interim application. And, as to the third,

there is nothing in the record to suggest plaintiff did anything

to delay the arbitration proceedings within the meaning of 
N.J.S.A.

18A:6-14. In short, there is no doubt plaintiff was entitled to

reinstatement.

     The only question remaining is whether the arbitrator gave

short shrift to the school district's opposition to plaintiff's

interim application. To be sure, as the record demonstrates, the

arbitrator initially ruled without the benefit of the school

district's opposition and later – approximately nine minutes after

receiving the opposition – the arbitrator reiterated his earlier

ruling. The emails that confirmed these events reveal that on

March 24, 2016, the arbitrator:

                ruled on the application at 3:56 p.m.;

                received the opposition at 4:48 p.m.; and

                reiterated his ruling at 4:57 p.m.

This timeline naturally gives pause and generates a colorable

concern over whether the school district's opposition was fairly

considered by the arbitrator.




                                  6                          A-5433-15T4
     But, as Judge Millenky observed in his oral decision, an

arbitrator familiar with the facts and circumstances, as was the

case here, and familiar as well with the applicable legal and

equitable standards as we should assume, would have required little

time with the school district's papers to form a conclusion about

whether his initial determination to grant relief was or was not

appropriate. The opposing brief itself is only thirteen pages long

and there was nothing relevant in those pages that the arbitrator

hadn't already considered. For example, the opposing brief's first

five and one-half pages address the school district's meritless

argument    that   the   arbitrator      lacked   jurisdiction   –   meritless

because, by that time, the Commissioner had expressly delegated

the motion to the arbitrator – as well as a recitation of the

matter's procedural history and a summary of the facts relevant

to the tenure charges, all no doubt well known to the arbitrator.

The next nearly three pages addressed the legal and equitable

grounds for granting or denying interim relief; here, the school

district recognized that, by statute, plaintiff was entitled to

reinstatement but pressed its contention that equitable or policy

grounds    suggested     a   different    outcome.   The   brief's   remainder

addressed    the    school     district's     unfounded     contention     that

plaintiff had delayed the proceedings, that an interim award would

contravene public policy when, in fact, the applicable statute

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embodies the relevant public policy, and that the school district's

reiteration of its right to a set off of any unemployment benefits

received by plaintiff during the time frame lacked relevance absent

issuance of the very interim award sought. In addition, these

issues had all been recognized and discussed at earlier stages of

the arbitration. Consequently, despite the demonstrably short

period   of   time   that   the   arbitrator   had   in   hand   the    school

district's written opposition before reiterating his grant of the

interim award, it is clear to us, as it was to Judge Millenky when

he confirmed the interim award, that the arbitrator was already

familiar with and had considered all the concepts briefed by the

school district.

     We agree with Judge Millenky who, having similarly analyzed

the issues, concluded that a sufficient review of the opposition

"was something that . . . could be accomplished promptly and

efficiently" because the school district's arguments "incorporated

[matters] that the arbitrator had already thought about and had

already evaluated" when he initially ruled.

     Affirmed.




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