JAMES DUNCKLEY v. BOARD OF EDUCATION ROCKAWAY TOWNSHIP, MORRIS COUNTY

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1152-16T1

JAMES DUNCKLEY,

Plaintiff-Appellant,

BOARD OF EDUCATION,
ROCKAWAY TOWNSHIP, MORRIS COUNTY,

Defendant-Respondent.

Argued February 27, 2018 - Decided March 19, 2018

Before Judges Yannotti, Carroll and DeAlmeida.

On appeal from Superior Court of New Jersey,
Chancery Division, Morris County, Docket No.
C-000089-16.

Sanford R. Oxfeld argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
Sanford R. Oxfeld, of counsel and on the
brief).

John G. Geppert, Jr. argued the cause for
respondent (Scarinci & Hollenbeck, LLC,
attorneys; John G. Geppert, Jr., of counsel
and on the brief; Laura M. Miller, on the
brief).

PER CURIAM
This appeal concerns a teacher-tenure arbitration conducted

pursuant to the Tenure Employees Hearing Law (TEHL),
N.J.S.A.

18A:6-10 to -18.1. Plaintiff James Dunckley, a tenured teacher

employed by the Rockaway Township School District (District),

appeals from an October 31, 2016 Chancery Division order confirming

an arbitration award rendered pursuant to the TEHL. The award

revoked Dunckley's tenure and terminated his employment with the

District based on his unbecoming conduct arising from his

inappropriate touching of two of his teenage, female special needs

students. For the reasons that follow, we affirm.

We begin with a brief review of the relevant authority, as

recently stated by our Supreme Court in Bound Brook Board of

Education v. Ciripompa,
228 N.J. 4, 11-12 (2017):

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

2 A-1152-16T1
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 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 was not made.

[N.J.S.A. 2A:24-8.]

II.

Dunckley first became employed as a teacher with the Rockaway

Township Board of Education (Board) during the 1976-1977 school

year. He subsequently obtained tenure in his position. Since

1996, he has been assigned to instruct special needs students at

the Copeland Middle School.

3 A-1152-16T1
During the 2009-2010 school year, Dunckley was accused of

inappropriately touching two female students, J.W. and A.R., on

their shoulders, arms, back and hair. Although Dunckley was not

formally disciplined, both students were ultimately removed from

his classroom and placed in alternate special education programs

at Copeland after experiencing "severe distress." Dunckley was

"counseled about appropriate parent/teacher interaction" and

remained in the classroom, despite findings by the school

psychologist that he was exhibiting "behavior towards female

students that appears designed to impose [his] will, gratify [his]

perverse impulses, humiliate the student, and sexualize the

student-teacher relationship."

During the 2014-15 school year, Dunckley was again accused

of inappropriately making contact with two female students, T.A.

and A.L.R. Specifically, T.A. reported to her mother that Dunckley

"had been touching her [on] several different occasions on her

shoulder, arm and knee, and that this had made her feel very

uncomfortable with him and being in his class." T.A.'s mother

later telephoned Dunckley, who allegedly told her T.A. was "so

nice," "very mature," and his "buddy." Dunckley also allegedly

stated T.A. makes him feel like he "can be [him]self." T.A.'s

mother found those comments "very odd" and "felt very

uncomfortable" as a result.

4 A-1152-16T1
Similarly, A.L.R. reported to a school counselor that

Dunckley "touches [her] knees and shoulders . . . [and] often asks

if she is okay at that time." A.L.R. believed this conduct "may

be a little sexual in nature." A.L.R. also reported Dunckley

frequently exclaimed "I don't touch kids." A.L.R. found this

"weird" because plaintiff "does touch kids, but . . . says that

he doesn't . . . ."

Upon learning of the students’ complaints, the matter was

referred to the Department of Children and Families, Institutional

Abuse Investigation Unit (IAIU), to conduct an investigation. The

IAIU interviewed several of Dunckley's students, past and present.

In June 2015, the IAIU investigation concluded with a finding that

T.A. and A.L.R. were not subject to sexual abuse.

On August 27, 2015, the Board filed tenure charges against

Dunckley alleging unbecoming conduct and other just cause

warranting dismissal. The three tenure charges alleged that

Dunckley engaged in: (1) inappropriate conduct toward T.A.; (2)

inappropriate conduct toward A.L.R.; and (3) a recurrent pattern

of misconduct. On August 31, 2015, the Board suspended Dunckley

with pay. On September 21, 2015, the Board certified the tenure

charges and forwarded them to the Commissioner of Education

(Commissioner). On October 19, 2015, the Commissioner referred

the charges for arbitration.

5 A-1152-16T1
The arbitration hearing was conducted over four non-

consecutive dates in December 2015 and January 2016. The Board

presented fifteen witnesses and Dunckley presented ten witnesses,

although he elected not to testify on his own behalf.

On June 13, 2016, in a twenty-six page written opinion, the

arbitrator determined Dunckley engaged in all the acts of

unbecoming conduct alleged in the tenure charges. The arbitrator

rejected Dunckley's contention that T.A. and A.L.R. were not

credible witnesses. Citing State v. Clawans,
38 N.J. 162, 170-71

(1962), the arbitrator further found that "[s]ince . . . Dunckley

chose not to testify, it is fair to make a legitimate inference

that he likely fears exposure to adverse facts which would be

unfavorable to his case." Relying on similar cases involving

inappropriate behavior with minor female students, and noting

Dunckley had previously "been warned to cease such misconduct,"

the arbitrator concluded "the penalty of removal was appropriate."

Dunckley filed a complaint in the Chancery Division seeking

to vacate the arbitration award. He argued there was not

"substantial evidence" to support the award, and that the award

was procured by "undue means." In response, the Board filed a

motion to dismiss the complaint.

On October 31, 2016, the Chancery Division judge granted the

Board's motion to dismiss the complaint with prejudice, and

6 A-1152-16T1
confirmed the arbitration award. In his written statement of

reasons, the judge rejected Dunckley's arguments that the award

was procured by undue means because the arbitrator: (1) failed to

consider testimony of many of Dunckley's witnesses; (2)

erroneously relied on Dunckley's prior record in reaching her

decision; (3) violated applicable law and public policy; and (4)

failed to consider the results of the IAIU investigation. The

judge elaborated:

With respect to IAIU's investigation that
found no sexual abuse . . ., [the Board] argues
the legal standard [governing] IAIU's
determination is significantly higher than the
legal standard governing whether a teacher may
be removed for unbecoming conduct. . . . "Just
cause" is the legal standard to remove a
teacher from his position, and inappropriate
touching constitutes just cause pursuant to
N.J.S.A. 18A:2[8]-5(b). The [c]ourt is
satisfied that the [a]rbitrator's
determination was made properly under the
"just cause" standard. That plaintiff was not
charged with sexual abuse does not mean his
conduct of inappropriate touching was [an]
[in]sufficient basis to terminate him.

. . . .

Further, [the Board] argues the
[a]rbitrator correctly relied on [Dunckley's]
prior record in determining the penalty
because past record is inherently relevant to
determine the penalty for a current offense.
[West New York v. Bock,
38 N.J. 500, 523
(1962)] specifically provides that a public
employee's past record cannot be used to prove
a present charge unless it's one of "habitual
misconduct;" but it may be used to determine

7 A-1152-16T1
the penalty for a present offense. . . .
Following the Bock holding, the [c]ourt is
satisfied that the [a]rbitrator correctly
relied on [Dunckley's] prior record to
determine [the] penalty for Charge III
"[conduct] unbecoming a teaching staff member,
and/or other just cause for dismissal related
to [Dunckley's] recurrent pattern of
misconduct" as it is a present charge and is
one of habitual misconduct. [Dunckley] was
not charged in the prior incident. However,
action was taken as a result of [h]is
inappropriate conduct. The students were
moved from his class and he was warned not to
touch students. That is sufficient conduct
under Bock to be considered as to penalty now.

The [c]ourt agrees with [the Board's]
position. The [a]rbitrator properly
considered the totality of the evidence
presented and [Dunckley's] prior record to
determine the appropriate penalty. The
[c]ourt finds no public policy violation in
the arbitrator's award. . . . The [c]ourt is
not to substitute its own judgment for that
of the [a]rbitrator, and finds the arbitration
award reasonably debatable. . . .

The [c]ourt notes that the decision was
not as carefully drafted as one would hope.
Stating that [Dunckley] put forth
"approximately eight witnesses" when, in fact,
there were ten, is a mistake. [The
arbitrator] made no mention of some of the
witnesses from which it is clear that these
witnesses were not considered as offering
relevant information or cumulative
information. Neither provides a basis to set
aside the decision. The evidence was clear
that inappropriate touching took place after
[Dunckley] had been warned.1

1
Additionally, the judge found Dunckley's verified complaint
improperly set forth "legal conclusions, as opposed to facts

8 A-1152-16T1
III.

On appeal, Dunckley 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. Dunckley also argues the court

erred by finding the arbitrator properly considered the 2009-2010

allegations when determining his penalty for the 2014-2015 tenure

charges. Finally, Dunckley contends the arbitrator ignored

certain testimony and evidence without making specific findings

or credibility determinations as to why the evidence was not

considered. 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.

supporting such legal conclusions," which provided an additional
basis to dismiss the complaint. Because we conclude there is
sufficient evidence in the record to support the arbitration award,
we find it unnecessary to address this issue.

9 A-1152-16T1
[(Citations omitted).]

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 was "reasonably debatable."

Linden Bd. of Educ. v. Linden Educ. Ass'n,
202 N.J. 268, 276

(2010).

Following the 2012 amendment to
N.J.S.A. 18A:6-16, "[i]f [the

Commissioner] determine[s] that such 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. Under this revised

statutory rubric, because the arbitration is compelled by statute,

"judicial review should extend to consideration of whether the

[arbitration] 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).

Consequently, we conclude the trial judge erred in applying

the previously-applicable "reasonably debatable" standard of

review, rather than the "substantial credible evidence" test, in

confirming the arbitrator's award. Nonetheless, having reviewed

the record, we conclude the arbitrator's findings are supported

by "substantial credible evidence," and we find no basis to disturb

them.

10 A-1152-16T1
Specifically, the arbitrator's findings with respect to the

first two charges relating to T.A. and A.L.R. are supported by:

(1) handwritten comments by T.A. and A.L.R. about Dunckley's

conduct toward them; (2) T.A.'s mother's conversation with

Dunckley, during which he made inappropriate remarks about T.A.;

(3) T.A.'s mother's conversation with the school guidance

counselor discussing T.A.'s anxiety about the inappropriate

touching; (4) the school psychologist's alarming evaluation of

Dunckley's behavior; (5) statements from two of T.A.'s former

teachers, corroborating T.A.'s reports of inappropriate touching

and/or her heightened anxiety levels; and (6) A.L.R.'s

conversation with the school guidance counselor about Dunckley's

inappropriate touching.

Substantial credible evidence also exists to support the

third charge that Dunkley engaged in a recurrent pattern of conduct

unbecoming a teaching staff member. In reaching this

determination, the arbitrator cited the similarity between the

current charges and Dunckley's conduct in the 2009-2010 school

year involving two other minor female students, J.W. and A.R. The

arbitrator also noted the school psychologist's assessment that

these incidents exhibited the "same pattern of abusive behavior

. . . ," and a memorandum written by the school principal detailing

the allegations of inappropriate touching in 2009-2010, as a result

11 A-1152-16T1
of which the two students were removed from "Dunckley's classes

to eliminate the possibility of future issues." In short, the

evidence sufficiently established that, from 2009 to 2015,

Dunckley inappropriately touched four classified female students

and engaged in conduct unbecoming a special education teacher.

The trial judge correctly concluded that the IAIU's

investigation that found no sexual abuse is not dispositive of

whether Dunckley engaged in unbecoming conduct.

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 [In re Young,
202 N.J. 50, 68-69
(2010)], for example, [the] Court permitted
tenure charges of unbecoming conduct based on
a student's allegations of sexual abuse that
were deemed unfounded by the Department of
Children and Families (DCF). [The Court]
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.

[Bound Brook,
228 N.J. at 14.]

Finally, neither the arbitrator nor the trial judge

misapplied Bock in considering Dunckley's history of inappropriate

touching as it related to the pattern of conduct charge and in

determining the appropriate penalty. Although Dunckley is correct

that no formal disciplinary action was taken against him as a

12 A-1152-16T1
result of the 2009-2010 complaints, it is undisputed that two

female students were removed from his classroom based on their

fear of his actions and "to eliminate the possibility of future

issues." Dunckley was subsequently counselled and warned about

inappropriate student-teacher interaction. We agree with the

trial judge's conclusion that this was "sufficient conduct under

Bock to be considered as to penalty now."

To the extent we have not specifically addressed any of

Dunckley's remaining claims, we conclude they lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

13 A-1152-16T1

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