NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2198-14T1

BOUND BROOK BOARD OF EDUCATION, APPROVED FOR PUBLICATION

Plaintiff-Respondent, October 29, 2015

v. APPELLATE DIVISION

GLENN CIRIPOMPA,

Defendant-Appellant. __________________________

Argued April 27, 2015 – Decided October 29, 2015

Before Judges Sabatino, Simonelli and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-12067-14.

Arnold M. Mellk argued the cause for appellant (Mellk O'Neill, attorneys; Mr. Mellk, of counsel; Gidian R. Mellk and Edward A. Cridge, on the briefs).

Robert J. Merryman argued the cause for respondent (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; Mr. Merryman, on the brief). The opinion of the court was delivered by

SIMONELLI, J.A.D.

This appeal concerns a teacher-tenure arbitration conducted

pursuant to Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-

10 to -18.1. Appellant Glenn Ciripompa is a tenured high school

math teacher in the Bound Brook School District (District) who

faced dismissal based on two charges of unbecoming conduct. The

first charge involved his improper use of a District-provided

laptop and iPad to send and receive numerous sexually explicit

emails and nude photographs of women and himself via the

Internet in violation of the District's computer and Internet-

use policy. The second charge involved his unprofessional,

inappropriate and potentially harassing conduct toward four

female staff members. The arbitrator determined that the

District proved the first charge but not the second charge. The

arbitrator modified the penalty from dismissal to a 120-day

suspension without pay.

The Bound Brook Board of Education (Board) then filed an

action in the Chancery Division challenging the arbitrator's

award. In a January 8, 2015 order, the court vacated the award

and remanded for a new arbitration hearing before a different

arbitrator. We reverse the vacatur of the arbitration award and

reinstate the award. We also reject Ciripompa's argument that

2 A-2198-14T1 the court lacked authority to order a rehearing before a

different arbitrator beyond forty-five days of the first

arbitration hearing date.

We begin with a brief review of the relevant authority.

Under the TEHL, no tenured teacher shall be dismissed for

unbecoming conduct without a hearing after written charges have

been certified against the teacher. N.J.S.A. 18A:6-10. Any

charge made against a tenured teacher must be filed in writing

with the secretary of the employing board of education, and a

written statement of evidence under oath to support such charge

must be presented to the board. N.J.S.A. 18A:6-11. The board

must provide the teacher with a copy of the charges and

statement of evidence and afford the teacher an opportunity to

submit a written statement. Ibid.

The board must then determine by a majority vote of its

full membership whether there is probable cause to credit the

evidence in support of the charge and whether such charge, if

credited, is sufficient to warrant a dismissal. Ibid. If the

board so determines, it must notify the teacher and forward the

written charge to the Commissioner of Education (Commissioner)

for a hearing pursuant to N.J.S.A. 18A:6-16, together with a

certification of such determination. Ibid.

3 A-2198-14T1 If 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. N.J.S.A. 18A:6-

16. Upon referral, the board must provide all evidence on which

it intends to rely at the arbitration hearing and will be

precluded from presenting any additional evidence, except for

purposes of impeachment of witnesses. N.J.S.A. 18A:6-

17.1(b)(3). The teacher must provide all evidence on which he

or she intends to rely at least ten days prior to the hearing

and will be precluded from presenting any additional evidence,

except for purposes of impeachment of witnesses. Ibid.

The arbitration hearing must be held within forty-five days

of the assignment of the arbitrator to the case. N.J.S.A.

18A:6-17.1(b)(1). The arbitrator must render a written decision

within forty-five days of the first hearing date. N.J.S.A.

18A:6-17.1(d). All of the timelines set forth in N.J.S.A.

18A:6-17.1 "shall be strictly followed[.]" N.J.S.A. 18A:6-

17.1(f).

The arbitration is conducted under the labor arbitration

rules of the American Arbitration Association (AAA). N.J.S.A.

18A:6-17.1(c). Under AAA Labor Arbitration Rule 27, the

arbitrator is not bound by the rules of evidence and may

determine the admissibility, relevance, and materiality of the

4 A-2198-14T1 evidence offered and exclude evidence deemed to be cumulative or

irrelevant. However, the arbitrator must consider evidence that

is pertinent and material to the controversy. Manchester Twp.

Bd. of Educ. v. Thomas P. Carney, Inc.,

(App. Div. 1985).

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.,

(1987). Accordingly, judicial review of an

arbitration award is very limited. Linden Bd. of Educ. v.

Linden Educ. Ass'n,

(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;

5 A-2198-14T1 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,

(2013) (quoting

Middletown Twp. PBA Local 124 v. Twp. of Middletown,

(2007)). "However, '[r]eflecting the narrowness of the

public policy exception, that standard for vacation will be met

only in rare circumstances.'"

(quoting N.J. Tpk. Auth.,

supra, 190 N.J. at 294).

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,

. 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.,

(1978).

In this case, the court vacated the arbitration award as

procured by undue means pursuant to N.J.S.A. 2A:24-8(a) based on

the arbitrator's alleged erroneous evidentiary rulings and

dismissal of the second charge. We review the court's decision

6 A-2198-14T1 on a motion to vacate an arbitration award de novo. Minkowitz

v. Israeli,

(App. Div. 2013).

The following facts are germane to our review. The matter

began when the District's superintendent received a copy of

"Twitter" posts, which stated that a Bound Brook High School

teacher, identified as "Mr. C.," was transmitting nude

photographs of himself via the Internet. The "Twitter" posts

prompted the superintendent to search the electronic system with

respect to Ciripompa. The search revealed that Ciripompa used

his District-provided laptop and iPad, sometimes during working

hours and on District property, to send and receive numerous

sexually explicit emails and nude photographs of women and

himself. None of those emails was exchanged with or shown to

students or school staff. Separately, the superintendent

learned of Ciripompa's inappropriate and potentially sexually

harassing conduct toward four female staff members in the high

school.

In July 2014, the Board instituted the two previously

mentioned tenure charges against Ciripompa, seeking his

dismissal for unbecoming conduct. The Board certified the

charges, suspended Ciripompa, and forwarded the charges to the

Commissioner. On July 23, 2014, the Commissioner referred the

charges for arbitration.

7 A-2198-14T1 On August 8, 2014, a month before the scheduled arbitration

hearing, the Board submitted the "Twitter" posts for admission

during the arbitration hearing. The arbitrator excluded this

evidence as untimely under N.J.S.A. 18A:6-17.1(b)(3), but

permitted the Board to reference that this evidence prompted the

District's investigation of Ciripompa, and to use this evidence

in rebuttal. In his written arbitration award the arbitrator

acknowledged that the content of the "Twitter" posts indicating

that a Bound Brook high school teacher was sending nude photos

of himself "was 100% accurate."

Ciripompa did not dispute the two tenure charges or any of

the evidence the Board presented supporting the charges.

Instead, over the Board's objection, he presented the testimony

of an expert psychiatrist in mitigation. The psychiatrist

opined that Ciripompa presented no sexual or other threat to his

students or members of the school community, he never engaged in

any aberrant sexual activity, and he demonstrated poor judgment

in using school equipment to pursue his own personal activities.

The expert expressed his belief that Ciripompa understood his

lapse in judgment and was completely aware of the implications

of his actions, and that once this matter was resolved,

Ciripompa would not engage in similar conduct. The expert also

8 A-2198-14T1 believed that suspension and possible dismissal appeared to be

an excessive response to Ciripompa's actions.

In his written award, the arbitrator concluded the Board

proved the first tenure charge. However, the arbitrator found

that: the inappropriate communications involved consenting

adults, not students or staff members; all of the inappropriate

communications, except four, were not sent or received during

work hours or on District property; none of the four

inappropriate communications caused any harm apart from a

violation of the District's computer and Internet-use policy;

and there was no evidence that any students saw or could have

seen the inappropriate communications.

The arbitrator also concluded the Board did not prove the

second tenure charge. Although the arbitrator found that

Ciripompa's conduct toward female coworkers was both

inappropriate and violated the District's sexual harassment

policy, he concluded the Board failed to establish the conduct

created a hostile work environment under the standards set forth

in Lehmann v. Toys 'R' Us,

(1993), a case

on which both parties relied. The arbitrator found the evidence

was insufficient to prove that Ciripompa's conduct was

sufficiently severe or pervasive to alter the conditions of

employment of the four female staff members and create a hostile

9 A-2198-14T1 working environment. The arbitrator emphasized that the

subjective feelings of the female staff workers and Ciripompa's

violation of the District's sexual harassment policy were

insufficient to establish hostile work environment sexual

harassment. Accordingly, the arbitrator dismissed the second

tenure charge with prejudice.

The arbitrator then considered the penalty for the first

charge. The arbitrator noted that Ciripompa's "conduct

cumulatively amounted to a shocking abdication of his

professional responsibility raising bad judgment to an art form"

and that Ciripompa "expressed no remorse for his actions[.]"

However, based on the totality of the circumstances, the

arbitrator determined that Ciripompa could be returned to the

classroom without harm or an injurious effect on the proper

administration of the District. Applying the principles of

progressive discipline, the arbitrator found that Ciripompa had

no prior disciplinary infractions, was "by all indications a

satisfactory teacher[,]" and had no prior warning about misuse

of the computer system. The arbitrator also mentioned, but did

not rely on, the testimony of Ciripompa's expert that Ciripompa

understood his lapse in judgment, was extremely unlikely to

engage in similar behavior, and had no evidence of

psychopathology.

10 A-2198-14T1 The arbitrator concluded that the Board failed to justify

Ciripompa's dismissal from his tenured position, the totality of

the circumstances militated against such a result, and there was

no authority supporting the penalty of dismissal under the

circumstances of this case. Accordingly, the arbitrator

modified the penalty from dismissal to a 120-day suspension

without pay.

The Board filed a complaint in the Chancery Division,

seeking an order vacating the arbitration award. The Board

argued, in relevant part, that the award was procured by undue

means under N.J.S.A. 2A:24-8(a) based on the arbitrator's

mistakes of fact and law in changing the nature of and standard

of proof for the second tenure charge, excluding the "Twitter"

posts, and admitting Ciripompa's expert evidence.

In a January 8, 2015 order and written opinion, the trial

judge vacated the arbitration award pursuant to N.J.S.A. 2A:24-

8(a) and ordered a new hearing before a different arbitrator.

The judge found that the "Twitter" posts were pertinent and

material to the controversy and that the arbitrator erred in

excluding them from evidence. The judge also found that the

arbitrator erroneously admitted and relied on Ciripompa's

expert, who rendered a net opinion; changed the nature of the

11 A-2198-14T1 second tenure charge; and applied the wrong standard of proof to

the second charge.

On appeal, Ciripompa does not challenge the arbitrator's

findings on the two tenure charges or the modified penalty.

Instead, he contends that the judge erred in vacating the

arbitrator's award or, alternatively, lacked authority to remand

for a new hearing before a different arbitrator. While we do

not condone Ciripompa's conduct, the question before us is

whether the arbitration award was procured by undue means.

"'[U]ndue means' ordinarily encompasses a situation in

which the arbitrator has made an acknowledged mistake of fact or

law or a mistake that is apparent on the face of the record."

Office of Emp. Relations. v. Commc'ns Workers of Am.,

(1998). However, to constitute undue means, "[t]he

judicial inquiry must consider more than whether a mere mistake

occurred."

. Rather,

the

formulation requires that 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.

[Id. at 150-51 (alteration in original) (citation and internal quotation marks omitted).]

12 A-2198-14T1 "'Undue means' . . . does not include situations . . . where the

arbitrator bases his decision on one party's version of the

facts, finding that version to be credible." Local No. 153,

Office of Prof'l Emps. Int'l Union, AFL-CIO, supra,

n. 1.

We discern no mistake of fact or law or mistake that is

apparent on the face of the record regarding the arbitrator's

exclusion of the "Twitter" posts. Although the arbitrator

excluded the actual posts from evidence, he permitted the Board

to reference that the posts prompted the District's

investigation of Ciripompa and to use the posts in rebuttal.

Ciripompa did not contest that the Board learned of his conduct

as a result of the posts, and a review of the content of the

posts does not demonstrate that they would have changed the

outcome of the arbitration. The posts merely stated that a

Bound Brook High School teacher, identified as "Mr. C.," was

transmitting nude photographs of himself via the Internet, and

the arbitrator found that this statement was "100% accurate."

Accordingly, because this evidence was not pertinent and

material to the controversy, there was no error in its

exclusion.

Even if the "Twitter" posts were pertinent and material to

the controversy, their exclusion was harmless. Under the

13 A-2198-14T1 harmless error doctrine, "[a]ny error or omission shall be

disregarded . . . unless it is of such a nature as to have been

clearly capable of producing an unjust result[.]" R. 2:10-2.

Because the arbitrator found in the Board's favor on the first

tenure charge, the exclusion of the "Twitter" posts did not

produce an unjust result.

There was no mistake of fact or law or mistake that is

apparent on the face of the record regarding admission of the

expert evidence. The arbitration was governed by the AAA labor

arbitration rules, not the rules of evidence. Under AAA Labor

Arbitration Rule 27, the arbitrator had the discretion to

determine the admissibility, relevance, and materiality of the

evidence offered. The admission of this evidence did not

warrant vacatur of the arbitration award.

Nor was there a mistake of fact or law or mistake that is

apparent on the face of the record regarding the arbitrator's

application of the hostile work environment standard in Lehmann.

Lehmann has been applied in teacher-tenure unbecoming conduct

cases grounded on sexual harassment. For example, in In re

Tenure Hearing of Paul Ash, 96 N.J.A.R.2d 442 (Dep't of Educ.),

the teacher was charged with "conduct unbecoming a tenured

teacher, specifically . . . sexual harassment of a coworker[.]"

In evaluating the merits of this charge, the

14 A-2198-14T1 Administrative Law Judge (ALJ) relied on Lehmann and concluded

that the charge was supported because the teacher's conduct

created a hostile work environment.

Similarly, in In re Tenure Hearing of Wayne Slaughter, EDU

6140-01, initial decision (May 21, 2002), http://

lawlibrary.rutgers.edu/oal/search.html>., the teacher was

charged with "conduct unbecoming a teaching staff member where

he made comments of a sexual nature to students." The ALJ

relied on Lehmann to ascertain whether the teacher's conduct met

the definition of sexual harassment. Id. at 27-28. The ALJ

then sustained the tenure charge after concluding the teacher's

"words, actions and conduct were so severe or pervasive to cause

[a student] to believe that the school setting was a hostile or

abusive environment." Id. at 28. Thus, it is clear that when a

teacher was found to have engaged in sexual harassment under the

Lehmann test, this was sufficient to sustain an unbecoming

conduct charge. See, e.g., In re Tenure Hearing of Robert

Mantone, 93 N.J.A.R.2d 322 (Dep't of Educ.).

Although the second tenure charge against Ciripompa did not

specifically state the words "sexual harassment," it alleged

that Ciripompa acted inappropriately toward female staff

members. Thus, it is clear from the nature of the allegation

that sexual harassment was the basis for the charge. Notably,

15 A-2198-14T1 to prove that charge, the Board relied on Lehmann and the

District's sexual harassment policy, which was admitted into

evidence. The policy is couched in Lehmann language –– it

defines sexual harassment in terms of "conduct [that] is severe

and pervasive and has the purpose or effect of unreasonably

altering or interfering with work performance or creating an

intimidating, hostile, or offensive working environment[.]" See

. We are satisfied that the

arbitrator properly applied the Lehmann standard of proof to the

second charge. The arbitrator also made meticulous findings

with respect to the lack of proof for that charge, which the

record amply supports.

Finally, we reject Ciripompa's contention that the court

may only remand for a new arbitration pursuant to N.J.S.A.

2A:24-8 when an award is vacated within the time period required

for the award to be made. Ciripompa argues that because

N.J.S.A. 18A:6-17.1(d) required the award in this case to be

made within forty-five days of the first hearing date, or by

October 20, 2014, the judge could not order a rehearing beyond

that date.

Ciripompa misreads the applicable statutes. N.J.S.A.

18A:6-17.1(b)(1) requires the arbitration hearing to be held

within forty-five days of assignment of the matter to the

16 A-2198-14T1 arbitrator. N.J.S.A. 18A:6-17.1(d) requires the arbitrator to

render an award within forty-five days of the first hearing

date. These timelines do not apply to the court's review of an

arbitration award. Once the award has been made, any party may

pursue an appeal in accordance with N.J.S.A. 2A:24-7 to -10.

N.J.S.A. 2A:24-8 provides that "[w]hen an award is vacated and

the time within which the agreement required the award to be

made has not expired, the court may, in its discretion, direct a

rehearing by the arbitrators." Here, there was no "time [limit]

within which the agreement required the award to be made,"

because the arbitration was conducted pursuant to statute, not

an agreement between the parties.

In addition, Ciripompa's interpretation of N.J.S.A. 2A:24-8

is inconsistent with the procedures outlined in N.J.S.A. 18A:6-

17.1. Specifically, after the arbitration award is rendered,

the parties are thereafter entitled to judicial review of the

award and enforcement as provided by N.J.S.A 2A:24-7 to -10.

N.J.S.A. 18A:6-17.1(e). Ciripompa essentially argues that if

judicial review occurs more than forty-five days after the first

hearing date, which it virtually always will, the court is

powerless to remand the matter if it finds a ground to vacate

the award. This interpretation completely undermines the

purpose of affording judicial review of arbitration awards in

17 A-2198-14T1 teacher-tenure cases, and is contrary to authority granting the

court the discretion to remand for an arbitration hearing before

a different arbitrator. See In re City of Camden,

(App. Div.), certif. denied,

(2013) (permitting a remand to a different arbitrator "when

deficiencies in the arbitrator's process call into question the

arbitrator's ability to have an open mind regarding the

disposition"); see also Fox v. Morris Cnty. Policemen's Ass'n,

P.B.A. 151,

(App. Div. 1993),

certif. denied,

(1994) (holding that upon vacating

an arbitration award, the court has the discretion to remand to

the same arbitrator or different arbitrator); Manchester Twp.

Bd. of Educ., supra,

(same).

The order vacating the arbitration award is reversed, and

the award is reinstated.

18 A-2198-14T1