When TEACHNJ was enacted in late 2012, it was touted as a victory for compromise. Most observers agreed that the state’s 102-year-old tenure dismissal law could stand significant revision.
As the law was implemented, concerns arose regarding the use of arbitrators to hear cases instead of administrative law judges. Many of these questions centered on the role and authority of the arbitrator because these fact-finders, the vast majority of whom hailed from the labor sector, would be new to the area of school law. Many board attorneys were concerned whether these arbitrators would understand or comply with the carefully crafted and precedential decisions of the state’s commissioner of education. Others wondered whether new and differing labor standards would be imposed on boards of education.
Boards may soon have the answers to these and other questions as the New Jersey Supreme Court has agreed to hear an appeal of one of those arbitrator’s decisions. Clearly, the decision will have important ramifications for tenure matters in the Garden State.
Facts of the Case In Bound Brook v. Ciripompa, the local board of education alleged that a high school math teacher violated the school district’s acceptable computer-use policy when administrators learned that he stored pictures of nude women on his district-issued iPad. In addition, several female staff members reported that Ciripompa directed inappropriate sexual comments toward them. After conducting an investigation, two tenure charges alleging unbecoming conduct were filed and a tenure hearing was convened before an arbitrator. The first charge alleged that Ciripompa’s improper use of a district-issued laptop and iPad constituted unbecoming conduct while the second charge asserted that his comments to female staff members were inappropriate.
During the hearing, one teacher testified that during a school fundraiser, Ciripompa purchased flowers in support of the fundraiser, and then used students to deliver these flowers to her. The teacher felt that the flowers, accompanying notes, and the use of students to make the deliveries were inappropriate, and these actions made her uncomfortable. In addition, Ciripompa commented on her attractiveness and extended personal invitations to the teacher, all of which were unwelcome. A second teacher testified that Ciripompa asked her on a date in front of students, and commented on her attractiveness. Both teachers reported their discomfort with Ciripompa’s conduct to administration and two of the staff members testified that they altered their work routines in order to avoid any contact or interaction with Ciripompa. Several other staff members testified as to Ciripompa’s comments and actions, however none testified that his comments were overtly sexual or lewd.
Also during the hearing, the superintendent testified that a staff member forwarded Ciripompa’s “Twitter” page to the superintendent, which led to the discovery of additional nude pictures and disclosed that many of the photos were sent during working hours. Some of the nude photos were of women, while others were of Ciripompa himself. The review of Ciripompa’s district email account also revealed numerous emails of a sexually explicit nature.
In his defense, Ciripompa offered the testimony of a psychologist hired by Ciripompa’s attorney in response to the tenure charges. The psychologist opined that based on his review of records, and a meeting with Ciripompa, that Ciripompa was not pathological, and that while the psychologist did not administer any tests, he was of the opinion that there was no psychiatric or psychological problem underlying Ciripompa’s conduct. In testifying on his own behalf, Ciripompa did not refute any of the allegations made by district employees.
The arbitrator determined that while the board proved the first charge, inappropriate use of the district laptop and iPad, 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 school 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. With regard to the second charge, the arbitrator found that while the comments to female staff members were both inappropriate and violated the district’s sexual harassment policy; he concluded that the board failed to prove that the conduct created a hostile work environment.
In determining the penalty to be imposed for the violation of district policy, the arbitrator noted that Ciripompa’s conduct, when viewed cumulatively, amounted to a shocking abdication of his professional responsibility. However, the arbitrator concluded that Ciripompa could be returned to the classroom without harm or an injurious effect on the proper administration of the district. Applying progressive discipline standards, the arbitrator found that Ciripompa had no prior warning about misuse of the computer system, despite the fact that the superintendent testified that district policy clearly prohibited obscene language or photos on district computers. The arbitrator concluded that the board failed to justify Ciripompa’s dismissal from his tenured position and instead, imposed a 120-day suspension without pay.
The district appealed to the Chancery Division, claiming that the arbitration award was procured by “undue means.” Chancery dismissed the arbitrator’s decision, remanded the matter to arbitration, and ordered that a different arbitrator be assigned. In response, Ciripompa appealed to the Appellate Division, asserting that the Chancery overstepped its authority in reversing the arbitrator’s original decision.
The Appellate Division carefully examined both the arbitrator and the Chancery Division decisions and decided to reverse Chancery and reinstate the arbitrator’s decision. The Appellate Division made clear that it did not condone Ciripompa’s conduct, but held that the Chancery Division erred when it reversed the arbitrator’s original decision.
The Appellate Division explained that in order to demonstrate “undue means,” the district had to meet a two-pronged test; first the district had to prove that the arbitrator made a mistake of law, and second, that the mistake had to have been so evident as to suggest fraud or misconduct. In a detailed review, the Appellate Division concluded that the district failed to meet either requirement of the test. The court noted that the arbitrator’s decision to accept one party’s version of events over the other did not constitute undue means and relied on the fact that a hostile environment analysis has been used before in tenure dismissal matters to reinstate the arbitrator’s decision.
Supreme Court Appeal The district, in turn, filed an appeal before the New Jersey Supreme Court. The district’s argument before that court is that the arbitrator exceeded his authority and misapplied the applicable standards. The district charged that the arbitrator lacked the authority to graft a hostile workplace standard onto the unbecoming conduct charges originally filed. The state Supreme Court agreed to hear the district’s appeal, limited to the narrow issue of whether reliance on hostile workplace standards was sufficient reason to vacate the arbitrator’s award.
The district is expected to argue before the state’s top court that establishing a hostile workplace is a distinct standard, with a separate and more exacting analysis than is required for charges of unbecoming conduct. The district will most likely assert that while hostile workplace charges may be filed in an appropriate case, not every case of inappropriate communication rises to the level of creating a hostile workplace and that the arbitrator exceeded his authority in re-fashioning the district’s charges. Additionally, the district is likely to argue the high standard of conduct to which teachers are traditionally held allows the district to discipline staff members for inappropriate conduct that falls short of creating such an environment and that the arbitrator failed to issue a decision on the merits of the matter when he revised the charges.
It is clear that this first arbitration under TEACHNJ will have a significant impact on school districts as they seek to improve the delivery of services to the students of New Jersey. Boards of education should be aware of the Supreme Court’s analysis of the act in order to craft and prosecute tenure charges more effectively. The case is expected to be heard by the court sometime this fall; and a decision would be expected later in the spring of 2017. NJSBA will be monitoring this case and will report the outcome when it is issued by the state Supreme Court.