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,

v.

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.

                                    I.

     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

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          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.




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     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


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                                    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.




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