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Boards of education scored a major victory recently regarding the role of the arbitrator in tenure charge proceedings, in a case involving a Bound Brook high school teacher who is alleged to have sexually harassed female colleagues and used his district computer for inappropriate activities. NJSBA participated in the case as an amicus.

In Bound Brook Board of Education v. Glenn Ciripompa, which was decided Feb. 21, the New Jersey Supreme Court vacated an arbitration award and remanded the matter to a new arbitrator, for a determination of whether the employee committed unbecoming conduct. The potentially limitless expansion of an arbitrator’s authority, which could have occurred had the arbitration award stood, prompted New Jersey School Boards Association (NJSBA) to become involved in the case as amicus curie.

The matter arose after a tweet from a student prompted the district to do an investigation. The investigation uncovered Ciripompa’s pervasive misuse of his district-issued technology, as well as evidence of inappropriate behavior toward female colleagues. The inappropriate behavior toward female colleagues often occurred in the presence of students.

As a result, the district filed a two-count tenure complaint seeking to terminate Ciripompa.

The first count of the complaint centered upon Ciripompa’s use of the district computers, sometimes during work hours, to send explicit pictures of himself and to seek similar pictures in return from various women on the internet.   He had also utilized the district computers to seek paid sexual services.

This second count charged Ciripompa with conduct unbecoming, and centered upon his inappropriate and unprofessional conduct towards female staff members, including: asking staff out on dates in front of students; commenting on the physical appearance and dress of female staff members; and using students to deliver flowers and messages to female staff members.

The issue which gave rise to the Supreme Court’s decision was the arbitrator’s unilateral changing of the second count to implement a different standard of review, hostile work environment sexual harassment, as opposed to the original charge of conduct unbecoming. The arbitrator found the board had proven the allegations underlying the first count, but dismissed the second based upon the changed standard and charge. The penalty of termination was reduced to a 120-day suspension without pay.

Upon application by the board, the trial court vacated the arbitration award because the arbitrator had “erroneously changed the nature of Count II and imposed an inappropriate standard.”

However, the Appellate Division reversed the trial court and found no error in the arbitrator’s application of a standard associated with the hostile work environment sexual harassment. Thereupon, the board appealed to the New Jersey Supreme Court, at which point NJSBA was granted leave to appear as amicus.

In reversing the Appellate Division and reinstating the vacation of the arbitration award, the N.J. Supreme Court held an “arbitrator decid(ing) a legal question not placed before him or her by the parties is tantamount to a claim that the arbitrator ‘imperfectly executed [his or her] powers,’ as well as a claim that the arbitrator exceeded his or her authority within the meaning of N.J.S.A. 2A:24-8(d)” and found the issue decided by the arbitrator in Ciripompa was not what was submitted.   Here, the board asserted conduct unbecoming, not hostile work environment.

In accepting the argument of NJSBA and the Bound Brook Board of Education, the Supreme Court found it is not necessary to prove hostile work environment to satisfy the burden of showing unbecoming conduct. Indeed, “[a] charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals. It focuses on the morale, efficiency, and public perception of an entity, and how those concerns are harmed by allowing teachers to behave inappropriately while holding public employment. 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 short, the N.J. Supreme Court has reiterated the importance for all practioners and school officials in the drafting of any tenure charges, as the wording of same can be crucial. Further, the N.J. Supreme Court has seemingly restricted the authority of the arbitrator to the tenure charges as certified, and prevented the unilateral alteration of same.