MICHELE SCHWAB v. WOODBRIDGE TOWNSHIP SCHOOL DISTRICT BOARD OF EDUCATION MIDDLESEX COUNTY

NOT FOR PUBLICATION WITHOUT THE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-4768-16T1


MICHELE SCHWAB,

        Plaintiff-Appellant,

v.

WOODBRIDGE TOWNSHIP SCHOOL
DISTRICT BOARD OF EDUCATION,
MIDDLESEX COUNTY,

     Defendant-Respondent.
________________________________

              Argued April 24, 2018 – Decided June 15, 2018

              Before Judges Yannotti and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              1068-17.

              Edward A. Cridge argued the cause for
              appellant (Mellk O'Neill, attorneys; Edward A.
              Cridge, of counsel and on the brief).

              Ari D. Schneider argued the cause for
              respondent   (The  Busch  Law   Group  LLC,
              attorneys; Ari D. Schneider, of counsel and
              on the brief).

PER CURIAM
     Plaintiff Michele Schwab appeals from an order entered by the

Law Division on May 26, 2017, denying her motion to vacate an

arbitration award that upheld the termination of her employment

by defendant Woodbridge Township Board of Education (Board). We

affirm.

     This appeal arises from the following facts. On February 7,

2015, plaintiff entered a Sears at the Woodbridge Center Mall

where loss prevention agents observed her placing a hat and hooded

sweatshirt into her purse. After plaintiff exited the store, a

store employee stopped plaintiff and asked her to return to the

store and discuss the merchandise the employee believed she had

stolen.   When   confronted   with   surveillance      footage,     plaintiff

admitted in writing to removing store merchandise without payment.

     During the meeting with plaintiff, the Sears asset protection

manager referred the matter to the Woodbridge Township police. The

police    subsequently   arrested    plaintiff   and    filed   a    criminal

complaint against her in the municipal court. The court later

dismissed the complaint when the Sears employee failed to appear

and testify against plaintiff.

     The Board learned of plaintiff's arrest on March 3, 2015,

when Dr. Robert Zega, Superintendent of Schools for Woodbridge

Township's School District (District), received a letter from

plaintiff's attorney. Dr. Zega had been unaware of plaintiff's

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arrest. After he received the letter, Dr. Zega scheduled a meeting

with the District's director of personnel, plaintiff, and her

union representative. At the meeting, which took place on March

4, 2015, plaintiff admitted she had been arrested for shoplifting.

Dr. Zega suspended plaintiff with pay pending investigation of the

incident.

     Several months later, Dr. Zega lifted the suspension after

he learned that the municipal court had dismissed the criminal

charges against plaintiff. At the arbitration hearing, Dr. Zega

explained that he was "hoping that this was a one-time incident"

and "wanted to be compassionate to [plaintiff] and return her to

the classroom."

     On March 5, 2016, plaintiff entered a store in Beach Haven,

where she picked up a picture frame valued at $60, "placed it in

her purse and left the store without paying for the item." The

store's owner was unaware that plaintiff had taken the picture

frame. However, after later discovering that the frame was missing,

the store's owner viewed the surveillance footage, and posted the

footage on the social media website "Facebook" in an effort to

identify    the   individual   responsible.   The   video   was    viewed

approximately 47,000 times, and at least one of plaintiff's fourth-

grade students saw the video.



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       After another teacher at plaintiff's school brought the video

to the attention of the school's principal, the principal viewed

the video. Plaintiff was identified as the person who took the

picture frame from the Beach Haven store. She was arrested by

Beach Haven police and charged with shoplifting. During a court

proceeding on May 2, 2016, plaintiff applied for admission to the

conditional dismissal program. 
N.J.S.A. 2C:43-13.1 to -13.9. Entry

into this program requires a guilty plea. 
N.J.S.A. 2C:43-13.1(a).

Plaintiff pled guilty and she was admitted to the program.

       On April 25, 2016, Dr. Zega filed tenure charges against

plaintiff, with several counts of unbecoming conduct and/or other

just     cause    for    disciplinary              action    based        upon:    (1)

theft/shoplifting (two counts); (2) the failure to report her

arrest; (3) violations of district policies; and (4) a pattern of

unbecoming conduct, insubordination and/or other just cause over

a   substantial   period    of    time.       On   April    28,   2016,    the    Board

considered the tenure charges. The Board voted unanimously to

suspend plaintiff without pay and to certify the charges to the

Commissioner of Education (Commissioner).

       On April 29, 2016, the Board transmitted the tenure charges

to the Commissioner. On May 13, 2016, plaintiff filed an answer

with the Commissioner, seeking dismissal of the charges and her

reinstatement     with     back    pay.       Thereafter,         the   Commissioner

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transmitted the tenure charges to an arbitrator for a hearing

pursuant to 
N.J.S.A. 18A:6-16.

       The arbitrator conducted evidentiary hearings on August 20,

September 7, and October 4, 2016. At the hearings, the District

presented testimony from Dr. Vega, the principal of plaintiff's

school, and the Sears asset protection manager. Plaintiff also

testified    and   called    two   expert   witnesses   in   psychiatry     who

discussed her mental health history. The parties also submitted

documentary evidence.

       Plaintiff's principal testified that due to the public nature

of the shoplifting incident, she received eight calls from parents

expressing their concern. She further testified that the students

in the school's two fourth-grade classes became aware of the video

posted on Facebook. She explained that she had assigned the

school's guidance counselor to provide lessons to the fourth-grade

students to instruct them in positive behavior and assist them in

distinguishing between rumor and fact.

       On January 5, 2017, the arbitrator issued his opinion on the

charges. The arbitrator noted that plaintiff had admitted she

engaged in the conduct that resulted in her arrests in February

2015   and   March   2016,   and    that    her   conduct   was   illegal   and

inappropriate. She also conceded her conduct had a harmful impact

upon the District and constituted a breach of her trust as a

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teacher. Plaintiff argued, however, that she remained fit to

continue as a teacher in the school. She also asserted that her

mental    health    issues   and   the    change   in   her   medication   were

contributing factors in her conduct. She argued that her removal

was draconian and not warranted by the circumstances.

       The arbitrator found, however, that plaintiff had violated

her duty to report her first arrest, and that she had engaged in

unbecoming conduct that affected the proper operation of the

school. The arbitrator found that the Board had "met its burden

to establish that [plaintiff] engaged in the conduct alleged and

that it had just cause to discipline [her]." The arbitrator found

that removal was the appropriate penalty.

       On February 21, 2017, plaintiff filed a complaint and Order

to Show Cause in the Law Division seeking an order vacating the

arbitration award. Plaintiff alleged the arbitrator failed to

review the matter de novo and improperly applied an abuse-of-

discretion standard.

       On May 26, 2017, the judge issued his decision, stating "there

were     distinct    findings      by    the   arbitrator     sustaining    the

unavoidable conclusion that [plaintiff] engaged in the unbecoming

conduct." The judge explained that

            [t]he language of the arbitrator's decision
            upon which plaintiff relies in support of the
            assertion that the arbitrator applied the

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           lesser standard of abuse of discretion in
           reaching his conclusion . . . is contravened
           by the extensive narrative addressing the
           plaintiff's unbecoming conduct, and that
           specific language . . . relied upon by the
           plaintiff this [c]ourt finds to be . . . not
           more than dicta.

       Accordingly, the judge denied plaintiff's application to

vacate the arbitrator's award and entered the order dated May 26,

2017, memorializing his determination. This appeal followed.

       On appeal, plaintiff argues that the trial court erred by

refusing to vacate the arbitration award. We disagree.

       "Judicial review of an arbitration award is very limited."

Bound Brook Bd. of Ed. v. Ciripompa, 
228 N.J. 4, 11 (2017) (quoting

Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 
202 N.J. 268, 276 (2010)). "An arbitrator's award is not to be cast

aside lightly. It is subject to being vacated only when it has

been shown that a statutory basis justifies that action." Ibid.

(quoting Kearny PBA Local # 21 v. Town of Kearny, 
81 N.J. 208, 221

(1979)).

       
N.J.S.A.   18A:6-10   provides    that   a    tenured      public    school

employee may not be "dismissed or reduced in compensation . . .

except for inefficiency, incapacity, unbecoming conduct, or other

just   cause."    The   school   board   must       find   that    charges      are

substantiated and refer them to the Commissioner. 
N.J.S.A. 18A:6-



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11. If the Commissioner finds the charges have merit, the matter

is referred to an arbitrator for decision. 
N.J.S.A. 18A:6-16.

     The arbitrator's decision is "final and binding," but is

subject to judicial review. 
N.J.S.A. 18A:6-17.1(e). The award may

only be set aside:

          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; [or]

          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.]

     Here, plaintiff was charged with unbecoming conduct, which

is conduct that "adversely affects the morale or efficiency of the

[department]" or "has a tendency to destroy public respect for

[government] employees and confidence in the operation of [public]

services." Ciripompa, 
202 N.J. at 13 (quoting In re Young, 
202 N.J. 50, 66 (2010)) (alterations in original).



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     Unbecoming     conduct      "need       not   'be   predicated    upon    the

violation of any particular rule or regulation, but may be based

merely upon the violation of the implicit standard of good behavior

which devolves upon one who stands in the public eye as an upholder

of that which is morally and legally correct.'" Id. at 13-14

(quoting Karins, 
152 N.J. at 555; Hartmann v. Police Dep't of

Ridgewood, 
258 N.J. Super. 32, 40 (App. Div. 1992)).

     In determining whether a teacher has engaged in unbecoming

conduct, the Commissioner may take into account "any harm or

injurious effect which the teacher's conduct may have had on the

maintenance of discipline and the proper administration of the

school system." In re Grossman, 
127 N.J. Super. 13, 30 (App. Div.

1974) (quoting In re Fulcomer, 
93 N.J. Super. 404, 422 (App. Div.

1967)).

     Plaintiff argues that the arbitrator "imperfectly executed"

his powers, thereby requiring the vacation of the award pursuant

to   
N.J.S.A.     2A:24-8d.      Plaintiff         maintains   the     arbitrator

erroneously     reviewed   the   Board's       decision   using   an   abuse-of-

discretion standard, rather than reviewing the decision "de novo."

     Plaintiff notes that when rendering a decision on tenure

charges, the Commissioner is required to make an independent

decision on the charges and the penalty to be imposed. Fulcomer,


93 N.J. Super. at 409-10 (App. Div. 1967). Plaintiff contends that

                                         9                                A-4768-16T1
since 
N.J.S.A. 2A:6-16 now requires the Commissioner to refer

tenure charges to an arbitrator for a hearing, the arbitrator also

must make "an independent decision" on the charges, and not review

the Board's decision under an abuse-of-discretion standard.

     In support of this contention, plaintiff relies upon the

following statements in the arbitrator's opinion:

           This repeated act of dishonesty within a
           thirteen (13) month period allowed the
           District to exercise its discretion to remove
           [plaintiff]   from   her   tenured   position.
           District policy provides for the penalty of
           dismissal "when appropriate." This requires
           the District to exercise its judgment in
           accordance with just cause principles. A
           penalty short of removal was within the
           discretion of the District but I cannot find
           that it abused its discretion by not doing so.

                . . . .

           I also conclude that the evidence concerning
           [plaintiff's] mental health history cannot
           serve to mitigate against the District's
           decision to impose the penalty of removal.

However, as the trial court explained in its decision, these

statements were "contravened by the extensive narrative" offered

by   the   arbitrator,    which   thoroughly   addressed   plaintiff's

unbecoming conduct that led to her termination.

     Although plaintiff asserts the arbitrator's references to the

Board's "discretion" and "judgment" show that the arbitrator was

being "deferential to the Board's desire to end" her employment,


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the arbitrator made clear the Board had the burden of proof. The

arbitrator stated that the Board had to establish that plaintiff

engaged in the conduct alleged, and if so, whether disciplinary

action was warranted. The arbitrator never stated the Board only

had to show that it did not abuse its discretionary authority.

     As the trial court noted in its decision, the arbitrator's

statements show that he had a clear understanding of the standard

of review he was required to apply. Given the arbitrator's extended

discussion    of   the   relevant   facts,   including   plaintiff's    two

arrests, her failure to report the first arrest, and the impact

these arrests had on the school and the students, the trial court

correctly    determined   that   the   arbitrator's   references   to   the

"discretion" and "judgment" of the Board amounted to "no[] more

than dicta."

     We therefore conclude the arbitrator applied the correct

standard in determining whether the Board had carried its burden

of proving the conduct alleged, and whether disciplinary action

was warranted. The trial court correctly found that plaintiff had

not established a basis to set aside the arbitration award under


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

     Affirmed.




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