Bound Brook Board of Education v. Glenn Ciripompa (076905)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

Bound Brook Board of Education v. Glenn Ciripompa (A-57-15) (076905)

Argued November 9, 2016 -- Decided February 21, 2017

Timpone, J., writing for a unanimous Court.

In this appeal, the Court determines whether an arbitrator exceeded his authority by applying the standard for

proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim

of unbecoming conduct in a tenured teacher disciplinary hearing.

Defendant Glenn Ciripompa is a tenured high school math teacher, in the Bound Brook School District

(District). Defendant’s behavior came under the scrutiny of the Bound Brook Board of Education (Board) after the

Board received copies of student Twitter posts alleging “Mr. C” was electronically transmitting nude photographs.

An investigation uncovered defendant’s pervasive misuse of his District-issued laptop and iPad, as well as evidence

of inappropriate behavior toward female colleagues, often in the presence of students. The results of the

investigation spurred the Board to seek defendant’s termination from his tenured position and served as the

substantive allegations of the two-count tenure complaint against defendant.

Count I of the complaint centered on defendant’s improper use of the District-issued laptop and iPad. The

District’s policy prohibits “all employees and students using District computers, iPads and District networks” from

accessing content for “illegal, inappropriate or obscene purposes, or in support of such activities.”

Count II set forth allegations concerning defendant’s inappropriate behavior, noting that “[t]eaching Staff

members in the Bound Brook School District, including Mr. Ciripompa, receive training with respect to appropriate

conduct towards staff members and workplace harassment on an annual basis,” and that “[i]nterviews of female staff

members revealed that Mr. Ciripompa has repeatedly engaged in unprofessional, inappropriate and potentially

harassing behavior towards female staff members.”

The concluding prayer for relief applied to both counts of the complaint. It stated that “the foregoing

unbecoming conduct warrants [defendant’s] dismissal from the Bound Brook Borough School District . . . .”

Pursuant the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1, the charges were

brought to the Commissioner of Education and, when the Commissioner agreed that the charges warranted

termination, to an arbitrator. The arbitrator found that the Board had proven the allegations underlying Count I but

dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay.

The arbitrator began his analysis of Count II by noting that, “[w]hile the charges contained in Count II do

not specifically state sexual harassment, it is clear from the nature of the allegations and the cited policy that this is

in fact the case, as [defendant] has likewise recognized.” The arbitrator then announced that, under this Court’s

decision in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 610 (1993), a successful claim for sexual harassment

requires a showing that “working conditions were affected by the harassment to the point at which a reasonable

woman would consider the working environment hostile.” The arbitrator found that defendant’s conduct did not

meet the Lehmann standard and concluded that misuse of the District-issued electronics did not justify defendant’s

removal from his tenured teaching position.

The District sought review in the Superior Court, Chancery Division. The court reversed the arbitrator’s

decision, remanding it for a review before a new arbitrator. The court held that the arbitrator “erroneously changed

the nature of Count II and imposed an inappropriate standard.”

1

On appeal, the Appellate Division reversed the Chancery Division’s decision vacating the arbitral award

and reinstated the suspension. 442 N.J. Super. 515, 518 (App. Div. 2015). The panel found no error in the

arbitrator’s application of the Lehmann standard to the charges proffered against defendant. Id. at 526.

The Court granted the Board’s petition for certification, limited to the issue of whether the arbitrator’s

reliance on Lehmann in dismissing the Board’s second charge of inappropriate and unprofessional conduct

supported vacating the arbitrator’s award. 224 N.J. 280 (2016).

HELD: The arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual

harassment. The re-characterization of Count II erroneously tasked the Board with substantiating charges it did not file

with evidence it did not proffer. The arbitrator’s review was not “consonant with the matter submitted,” Grover v.

Universal Underwriters Ins. Co., 80 N.J. 221, 231 (1979); rather, he “imperfectly executed his powers” as well as

exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in

support of termination. N.J.S.A. 2A:41-8(d). The arbitrator’s award is therefore invalid.

1. Judicial review of an arbitration award is very limited. 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. (p. 8)

2. Under New Jersey’s TEHL, “[t]he arbitrator’s determination shall be final and binding,” but “shall be subject to

judicial review and enforcement as provided pursuant 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. N.J.S.A. 2A:24-8(a) to -(d). The claim of error in this case implicates subsection (d) of N.J.S.A. 2A:24-8,

which provides for vacatur “[w]here the arbitrators exceeded or so imperfectly executed their powers that a mutual,

final and definite award upon the subject matter was not made.” (pp. 9-10)

3. Limits to the arbitrator’s authority are defined by statute, N.J.S.A. 2A:24-8, as well as by the questions framed by

the parties in a particular dispute. Indeed, an arbitrator’s award “should be consonant with the matter submitted.

Otherwise, the determination is contrary to the authority vested in him.” Grover, supra, 80 N.J. at 231. The Third

Circuit addressed “allegation[s] that the arbitrators exceeded their authority by resolving an issue the parties did not

intend to submit” under 9 U.S.C.A. § 10(a)(4), which is virtually identical to N.J.S.A. 2A:24-8(d), by considering

“whether the arbitrators manifestly exceeded their authority in interpreting the scope of the parties’ submissions.”

Metromedia Energy, Inc. v. Enserch Energy Servs., 409 F.3d 574, 579 (3d Cir. 2005), cert. denied, 546 U.S. 1089

(2006). The Court agrees that a claim that an arbitrator decided 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). (pp. 10-12)

4. Proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct. 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. Claims of hostile

work environment, sexual harassment and unbecoming conduct are governed by separate, distinct legal standards

and in separate, distinct legal contexts. (pp. 12-14)

5. There are settings in which sexual harassment claims may provide the underpinnings of an unbecoming conduct

charge. This is not one of them. The arbitrator erred in his reliance on Lehmann because he imposed a different and

inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim.

The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to

impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context. The instant matter

is not an employee-versus-employer dispute that requires application of the Lehmann standard. Indeed, that standard

distorts the evaluatory method pertinent to this matter, making it inappropriate for consideration here. (pp. 14-18)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED for arbitration with

a new arbitrator.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-

VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.

2

SUPREME COURT OF NEW JERSEY

A-57 September Term 2015

076905

BOUND BROOK BOARD OF

EDUCATION,

Plaintiff-Appellant,

v.

GLENN CIRIPOMPA,

Defendant-Respondent.

Argued November 9, 2016 – Decided February 21, 2017

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 442 N.J. Super. 515 (App. Div.

2015)

Robert J. Merryman argued the cause for

appellant (Apruzzese, McDermott, Mastro &

Murphy, attorneys).

Arnold M. Mellk argued the cause for

respondent (Mellk O'Neill, attorneys; Edward

A. Cridge, on the brief).

Robert A. Greitz argued the cause for amicus

curiae New Jersey School Boards Association

(Cynthia J. Jahn, General Counsel,

attorney).

JUSTICE TIMPONE delivered the opinion of the Court.

In this case we determine whether an arbitrator exceeded

his authority by applying the standard for proving a hostile-

work-environment, sexual-harassment claim in a law against

1

discrimination (LAD) case to a claim of unbecoming conduct in a

tenured teacher disciplinary hearing. We find that he did.

Defendant Glenn Ciripompa is a tenured high school math

teacher, in the Bound Brook School District (District). The

Bound Brook Board of Education (Board) charged defendant with

two counts of unbecoming conduct. Reviewing under the Tenure

Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1, the

arbitrator determined that the Board failed to prove that the

conduct charged in the second count met the four-prong hostile

work environment test set forth in Lehmann v. Toys ‘R’ Us, Inc.,

132 N.J. 587, 603-04 (1993).

The arbitrator impermissibly converted the second charge

into one of sexual harassment. Accordingly, we reverse the

judgment of the Appellate Division and remand for arbitration

with a new arbitrator to determine whether defendant committed

unbecoming conduct, and any appropriate penalty.

I.

We distill the following pertinent facts from the record.

Defendant’s behavior came under Board scrutiny after the Board

received copies of student Twitter posts alleging “Mr. C” was

electronically transmitting nude photographs. An investigation

uncovered defendant’s pervasive misuse of his District-issued

laptop and iPad, as well as evidence of inappropriate behavior

toward female colleagues, often in the presence of students.

2

The results of the investigation spurred the Board to seek

defendant’s termination from his tenured position and served as

the substantive allegations of the two-count tenure complaint

against defendant.

Count I of the complaint, unambiguously labelled “Conduct

Unbecoming,” centered on defendant’s improper use of the

District-issued laptop and iPad. The District’s policy

prohibits “all employees and students using District computers,

iPads and District networks” from accessing content for

“illegal, inappropriate or obscene purposes, or in support of

such activities.” The complaint alleged that defendant had

“received and signed for a copy of the District’s acceptable use

policy.” Evidence adduced at the arbitration hearing

established that defendant used the devices, sometimes during

work hours, on the District computer network to send explicit

pictures of himself and to seek similar pictures in return from

various women on the internet. On the District-issued devices,

defendant saved nude pictures and sexually explicit emails, sent

and received by defendant, including negotiations for paid

sexual services.

Count II, without a specific label, set forth the following

allegations:

1. Teaching Staff members in the Bound Brook

School District, including Mr. Ciripompa,

receive training with respect to appropriate

3

conduct towards staff members and workplace

harassment on an annual basis.

2. During the 2013-14 School Year complaints

were received about Mr. Ciripompa’s

inappropriate conduct towards female staff

members.

3. Interviews of female staff members

revealed that Mr. Ciripompa has repeatedly

engaged in unprofessional, inappropriate and

potentially harassing behavior towards female

staff members.

4. On two occasions Mr. Ciripompa asked

female staff members out on dates in front of

students, thereby making the staff members

very uncomfortable.

5. Mr. Ciripompa has repeatedly commented

about the physical appearance and dress of

female staff members, making them very

uncomfortable.

6. Mr. Ciripompa sent flowers to a female

staff member, using students to deliver the

flowers, along with messages that the female

staff member found to be inappropriate.

The concluding prayer for relief applied to both counts of

the complaint. It stated that “the foregoing unbecoming conduct

warrants [defendant’s] dismissal from the Bound Brook Borough

School District in accordance with N.J.S.A. 18A:6-10.”

In support of the charges, the Board produced physical

evidence taken from defendant’s Board-issued computer and iPad,

as well as testimonial evidence that defendant, in the presence

of students, propositioned staff members to date him and

commented on the physical appearance of female staff. Notably,

4

defendant’s remark about the tight fit of a female teacher’s

pants prompted a follow-up question by a student who was present

when defendant uttered the remark. Defendant also used a

student as his personal courier to deliver flowers and

“inappropriate” messages to a colleague he was pursuing.

In accordance with the TEHL, the Board determined by a

majority vote that the evidence supported the charges and

warranted dismissal. The Commissioner of Education

(Commissioner) reviewed the charges and agreed they warranted

termination. The charges were then submitted for review by an

arbitrator, pursuant to N.J.S.A. 18A:6-16. The arbitrator found

that the Board had proven the allegations underlying Count I but

dismissed Count II with prejudice, reducing the penalty from

dismissal to a 120-day suspension without pay.

The arbitrator began his analysis of Count II by noting

that, “[w]hile the charges contained in Count II do not

specifically state sexual harassment, it is clear from the

nature of the allegations and the cited policy that this is in

fact the case, as [defendant] has likewise recognized.” The

arbitrator then announced that, under this Court’s decision in

Lehmann, supra, 132 N.J. at 610, a successful claim for sexual

harassment requires a showing that “working conditions were

affected by the harassment to the point at which a reasonable

woman would consider the working environment hostile.” The

5

arbitrator emphasized that the subjective feelings of the female

staff members were insufficient to establish a hostile work

environment claim. He found that defendant’s conduct was not

severe or pervasive enough to “modify the [female staff

members’] behavior or routine in any material way.” While

announcing that defendant’s “conduct cumulatively amounted to a

shocking abdication of his professional responsibility” and

“rais[ed] bad judgment to an art form,” the arbitrator found,

contrary to evidence presented, that defendant “had no prior

warnings” concerning misuse of the computer system. The

arbitrator concluded that misuse of the District-issued

electronics did not justify defendant’s removal from his tenured

teaching position.

Pursuant to N.J.S.A. 18A:6-17.1(e), the District sought

review in the Superior Court, Chancery Division. The court

reversed the arbitrator’s decision, remanding it for a review

before a new arbitrator. The court held that the arbitrator

“erroneously changed the nature of Count II and imposed an

inappropriate standard.”

On appeal, the Appellate Division reversed the Chancery

Division’s decision vacating the arbitral award and reinstated

the suspension. Bound Brook Bd. of Educ. v. Ciripompa, 442 N.J.

Super. 515, 518 (App. Div. 2015). The panel found no error in

6

the arbitrator’s application of the Lehmann standard to the

charges proffered against defendant. Id. at 526.

We granted the Board’s petition for certification, limited

to the issue of whether the arbitrator’s reliance on Lehmann in

dismissing the Board’s second charge of inappropriate and

unprofessional conduct supported vacating the arbitrator’s

award. Bound Brook Bd. of Educ. v. Ciripompa, 224 N.J. 280

(2016). We granted leave to the New Jersey School Board

Association (Association) to appear as amicus curiae.

II.

The Board urges this Court to reverse the judgment of the

Appellate Division, contending that the arbitrator’s hostile

work environment analysis was improper. The Board argues that

there is a fundamental difference between charges of “unbecoming

conduct” and “sexual harassment” and that the arbitrator

improperly conflated the two to require the Board to prove a

hostile work environment under Lehmann.

In support of the Board’s position, the amicus Association

maintains that the arbitrator lacked the authority to alter or

rewrite the charges. The Association contends that the

arbitrator should have limited his analysis to a determination

of unbecoming conduct. The Association underscores the

practical impossibility of trying to prepare and present

appropriate evidence if “arbitrators [have] the ability to

7

unilaterally change the charges presented.” Further, the

Association asserts that requiring the Board to prove hostile

work environment “would be anathema in a school setting.” It

argues that schools would have no recourse against isolated but

abhorrent incidents that would not rise to the level of a

hostile work environment, yet would satisfy the standard of

unbecoming conduct.

Defendant urges this Court to read the underlying facts of

the count as predicated on allegations of sexual harassment

sufficient to trigger a Lehmann analysis. Defendant highlights

the Board’s own reliance on Lehmann during questioning of

witnesses and on its references to the sexual harassment

policies as indicative of the true nature of Count II -- sexual

harassment.

III.

“Judicial review of an arbitration award is very limited.”

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.”

Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979).

We therefore begin with a review of the circumstances under

which a court may vacate an arbitral award and then consider

whether this case merits such action.

8

A.

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 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

9

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 submitted was not made.

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

Here, the issue is whether the arbitrator impermissibly

transmuted Count II’s allegation of unbecoming conduct into a

charge of hostile work environment sexual harassment and thus

measured the Board’s claim against an improper legal standard,

namely the standard articulated by this Court in Lehmann, supra,

132 N.J. at 603-04. This particular claim of error implicates

subsection (d) of N.J.S.A. 2A:24-8.

“[L]imits to the arbitrator’s authority . . . are defined

by statute, N.J.S.A. 2A:24-8,” as well as “by the questions

framed by the parties in a particular dispute.” Local No. 153,

Office & Prof’l Emps. Int’l Union v. Tr. Co. of N.J., 105 N.J.

442, 449 (1987). Indeed, an arbitrator’s award “should be

consonant with the matter submitted. Otherwise, the

determination is contrary to the authority vested in him.”

Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 231

(1979); cf. Trentina v. Fitzpatrick & Assocs., 135 N.J. 349, 359

(1994)(“If the arbitrators decide a matter not even submitted to

them, that matter can be excluded from the award.” (quoting

10

Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479,

548 (1992))).

The Third Circuit addressed “allegation[s] that the

arbitrators exceeded their authority by resolving an issue the

parties did not intend to submit” under 9 U.S.C.A. § 10(a)(4),

which is virtually identical to N.J.S.A. 2A:24-8(d), by

considering “whether the arbitrators manifestly exceeded their

authority in interpreting the scope of the parties’

submissions.” Metromedia Energy, Inc. v. Enserch Energy Servs.,

409 F.3d 574, 579 (3d Cir. 2005), cert. denied, 546 U.S. 1089,

126 S. Ct. 1021, 163 L. Ed. 2d 852 (2006).

The Third Circuit described how courts review claims that

arbitrators have exceeded their authority:

[A]rbitrators have the authority in the first

instance to interpret the scope of the

parties’ submissions in order to identify the

issues that the parties intended to arbitrate.

When confronted with an allegation that the

arbitrators exceeded their authority by

resolving an issue the parties did not intend

to submit, we will review the arbitrator’s

interpretation of the parties’ intentions

under a “highly deferential” standard.

Nonetheless, this deference is not a rubber

stamp, and our review must focus upon the

record as a whole in determining whether the

arbitrators manifestly exceeded their

authority in interpreting the scope of the

parties’ submissions.

[Metromedia Energy, Inc., supra, 409 F.3d at

579 (discussing Matteson v. Ryder Sys. Inc.,

99 F.3d 108, 112-14 (3d Cir. 1996), cert.

11

denied, 546 U.S. 1089, 126 S. Ct. 1021, 163 L.

Ed. 2d 852 (2006)).]

We agree that a claim that an arbitrator decided 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).

Having concluded that subsection (d) frames our review of

this matter, we turn to the substance of the Board’s claim.

IV.

We first review the standard applied to a claim of

unbecoming conduct.

This Court has defined unbecoming conduct as conduct “which

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.”

In re Young, 202 N.J. 50, 66 (2010) (alterations in original)

(quoting Karins v. Atl. City, 152 N.J. 532, 554 (1998)). We

have also held that a finding of 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

12

and legally correct.’” Karins, supra, 152 N.J. at 555 (quoting

Hartmann v. Police Dep’t of Ridgewood, 258 N.J. Super. 32, 40

(App. Div. 1992)).

Even when the unbecoming conduct alleged has elements

similar to those that might comprise a hostile work environment

claim, this Court has explained that “[t]he absence of

[harassment] evidence in this type of case is not critical. . .

. [I]t is not necessary ‘for an employer to allow events to

unfold to the extent that the disruption of the office and the

destruction of working relationships is manifest before taking

action.’” Karins, supra, 152 N.J. at 561-62 (quoting Connick v.

Myers, 461 U.S. 138, 152, 103 S. Ct. 1684, 1692, 75 L. Ed. 2d

708, 723 (1983)).

Stated otherwise, proving hostile work environment is not

necessary to satisfy the burden of showing unbecoming conduct.

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 Young, supra, for example, this Court permitted

tenure charges of unbecoming conduct based on a student’s

13

allegations of sexual abuse that were deemed unfounded by the

Department of Children and Families (DCF). 202 N.J. at 68-69.

We 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.

Because claims of hostile work environment, sexual

harassment and unbecoming conduct are governed by separate,

distinct legal standards and in separate, distinct legal

contexts, we next turn to the specifics of this case to consider

whether the arbitrator correctly determined that Count II of the

Board’s complaint was properly subjected to the Lehmann

standard.

V.

Count II of the Board’s complaint claimed that defendant

“engaged in unprofessional, inappropriate and potentially

harassing behavior towards female staff members,” and the coda

to the complaint characterized the ground for termination,

developed through both counts of the charges, as defendant’s

“unbecoming conduct.” The Board framed the issue before the

arbitrator as follows: “Has the Board of Education established

the Tenure Charges of conduct unbecoming by a preponderance of

the evidence?” This language clearly demonstrates that the

14

basis for the complaint was a violation of the District’s code

of conduct by “engag[ing] in inappropriate language or

expression in the presence of pupils.” The Board’s proofs in

Count II focused on defendant’s repeated propositions of his co-

workers in the presence of students, his inappropriate use of

students as couriers to deliver flowers and inappropriate

messages to colleagues he was pursuing, and his lascivious

comments, made in the presence of students, about a colleague’s

clothing.

While there is passing reference to defendant’s

“potentially harassing behavior” in the charge, even a cursory

reading of the complaint, and the underlying facts and evidence,

demonstrate that the basis for discipline was broader misconduct

of undermining the morale of his co-workers and behaving

inappropriately when students were present.

This count was premised on the Board’s assertion that

defendant’s actions violated Board Policy Number 4281, which

addresses “Inappropriate Staff Conduct”:

School staff’s conduct in completing their

professional responsibilities shall be

appropriate at all times. School staff shall

not make inappropriate comments to pupils or

about pupils and shall not engage in

inappropriate language or expression in the

presence of pupils.

The Commissioner of Education has determined

inappropriate staff conduct by a school staff

member outside their professional

15

responsibilities may be considered conduct

unbecoming a public employee.

The arbitrator clearly recognized that the Board had proven

inappropriate conduct when he found defendant’s conduct to be a

fundamental renunciation of his duties and obligations as a

teacher that “raise[d] bad judgment to an art form.”

Despite that conclusion, the arbitrator found that the

Board failed to prove Count II. The arbitrator quoted Board

Policy Number 3362 -- “Sexual Harassment” -- and made only

fleeting reference to the “Inappropriate Staff Conduct” policy

in his discussion of Count II. The arbitrator then applied the

Lehmann standard and found Count II to be unproven because the

“complained of actions [did] not meet the generally recognized

definition of hostile work environment sexual harassment and

[did] not rise to that level.”

There are settings in which sexual harassment claims may

provide the underpinnings of an unbecoming conduct charge. This

is not one of them. Count II of the complaint charges

“unprofessional, inappropriate and potentially harassing

behavior.” The arbitrator disproportionately focused on the

“potentially harassing” allegation in his analysis, ostensibly

disregarding the word “potentially” and the remaining charges in

the sentence. The coupling of “unprofessional, inappropriate

and potentially harassing” should have forewarned the arbitrator

16

that this was not a harassment charge. Indeed, the inclusion of

the word “potentially” reveals that the Board was not claiming

harassment per se.

The explanation we espoused in Karins is instructive: it

is not necessary “for an employer to allow events to unfold to

the extent that the disruption of the office and the destruction

of working relationships is manifest before taking action.”

Karins, supra, 152 N.J. at 561-62 (quoting Connick, supra, 461

U.S. at 152, 103 S. Ct. at 1692, 75 L. Ed. 2d at 723). Surely,

a school board must not be required to prove a “severe and

pervasive” effect for every harassment-based offense that

buttresses a charge of unbecoming conduct. As this Court

explained in Young, a school district will not be hamstrung by

failing to establish a claim beyond unbecoming conduct.

Here, the arbitrator erroneously faulted the Board for

failing to prove a charge that it did not bring. The arbitrator

erred in his reliance on Lehmann because he imposed a different

and inappropriate standard of proof on the Board to sustain its

unbecoming conduct in the presence of students claim. The

arbitrator “imperfectly executed” his power by misinterpreting

the intentions of the Board so significantly as to impose a

sexual harassment analysis, when such an analysis was wholly

ill-suited in this context. The Lehmann standards for hostile-

work-environment, sexual-harassment claims arise in an entirely

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different context -- under the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

“The LAD was enacted to protect not only the civil rights

of individual aggrieved employees but also to protect the

public’s strong interest in a discrimination-free workplace.”

Lehmann, supra, 132 N.J. at 600. In Lehmann, we established the

standard for a cause of action for hostile work environment

sexual harassment claims under the LAD. Lehmann, supra, 132

N.J. at 592. This Court promulgated a four-prong test, under

which the plaintiff must show that “the complained-of conduct:

(1) would not have occurred but for the employee’s gender; and

it was (2) severe or pervasive enough to make a (3) reasonable

woman believe that (4) the conditions of employment are altered

and the working environment is hostile or abusive.” Id. at 603-

04 (emphasis in original). That standard, however, is not

implicated in a termination hearing under the TEHL. None of the

female employees affected by defendant’s actions are suing the

District-employer for turning a blind eye to sexual harassment

in the workplace. The instant matter is not an employee-versus-

employer dispute that requires application of the Lehman

standard. Indeed, that standard distorts the evaluatory method

pertinent to this matter, making it inappropriate for

consideration here.

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The re-characterization of Count II erroneously tasked the

Board with substantiating charges it did not file with evidence

it did not proffer. The arbitrator’s review was not “consonant

with the matter submitted,” Grover, supra, 80 N.J. at 231;

rather, he “imperfectly executed his powers” as well as exceeded

his authority by failing to decide whether Count II stated a

successful claim of unbecoming conduct in support of

termination. We find the arbitrator’s award invalid under

N.J.S.A. 2A:41-8(d).

VI.

The judgment of the Appellate Division reinstating the

arbitrator’s award is reversed, and the matter is remanded for

arbitration with a new arbitrator to determine whether defendant

committed unbecoming conduct, and any appropriate penalty.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,

PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s

opinion.

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