The opinion
NOT FOR PUBLICATION WITHOUT THE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-2530-19
ROSELLE BOROUGH BOARD
OF EDUCATION,
Plaintiff-Appellant,
v.
LOVENA BATTS,
Defendant-Respondent,
and
DR. ANDREE Y. McKISSICK,
arbitrator, and DR. LAMONT
REPOLLET, Commissioner of
Education,
Defendants.
_____________________________
Argued May 3, 2021 – Decided August 20, 2021
Before Judges Messano, Hoffman, and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No.
C-000143-19.
Stephen J. Edelstein argued the cause for appellant
(Weiner Law Group, LLP, attorneys; Stephen J.
Edelstein, of counsel and on the briefs).
Nicholas Poberezhsky argued the cause for respondent
(Caruso Smith Picini, PC, attorneys; Timothy R.
Smith and Nicholas Poberezhsky, of counsel; Sara B.
Liebman, on the brief).
PER CURIAM
This appeal arises from a pending arbitration proceeding, involving tenure
charges filed by appellant Roselle Board of Education (the Board) against one
of its teachers, respondent Lovena Batts. The Board appeals from Chancery
Division orders that denied its request for a preliminary injunction and then
dismissed its complaint without prejudice. The Board sought interim relief to
reverse rulings made by the arbitrator assigned to hear the case, asserting the
arbitrator lacked authority to permit respondent to file late responses to
discovery requests. Finding no basis to disturb the challenged orders, we affirm.
I.
We begin with a review of the well-established law governing arbitration
proceedings. "Arbitration can attain its goal of providing final, speedy and
inexpensive settlement of disputes only if judicial interference with the proc ess
is minimized; it is, after all, 'meant to be a substitute for and not a springboard
for litigation.'" Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179,
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2
187 (1981) (quoting Korshalla v. Liberty Mut. Ins. Co., 154 N.J. Super. 235,
240 (Law Div. 1977)). With that goal in mind, "[a]rbitration should spell
litigation's conclusion, rather than its beginning . . . ." Borough of E. Rutherford
v. E. Rutherford PBA Local 275, 213 N.J. 190, 201 (2013) (alteration in
original) (quoting N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 292
(2007)). Indeed, "[t]he public policy of this State favors arbitration as a means
of settling disputes that otherwise would be litigated in a court." Badiali v. N.J.
Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015).
Arbitrators are granted broad powers to decide issues of fact and law, and
their decisions "are given collateral estoppel effect by reviewing courts."
Barcon, 86 N.J. at 187 (citation omitted). As a result, "courts grant arbitration
awards considerable deference." E. Rutherford PBA Local 275, 213 N.J. at 201.
Because a trial court's decision to affirm or vacate an arbitration award is a
decision of law, however, our review is de novo. Minkowitz v. Israeli, 433 N.J.
Super. 111, 136 (App. Div. 2013).
This appeal concerns a teacher-tenure arbitration conducted pursuant to
the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1. In
Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11-12 (2017) (alterations
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3
in original), our Supreme Court addressed arbitration proceedings under the
TEHL:
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 of any
other misbehaviors prejudicial to the
rights of any party;
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d. Where the arbitrators exceeded or so
imperfectly executed their powers
that a mutual, final and definite
award upon the subject matter was
not made.
[N.J.S.A. 2A:24-8.]
A court may also modify or correct an award if 1) there was an evident
mathematical mistake; 2) the arbitrator made an award on a claim not submitted
to arbitration; or 3) "the award is imperfect in a matter of form not affecting the
merits of the decision . . . ." N.J.S.A. 2A:23B-24(a). Generally, a court may
only confirm, vacate, modify, or correct arbitration awards on the grounds
provided in the statute. See N.J.S.A. 2A:23B-20 to -24.
In "rare circumstances," however, a court may overturn an arbitration
decision if it violates "a clear mandate of public policy." N.J. Tpk. Auth., 190
N.J. at 294. Such a mandate "must be embodied in legislative enactments,
administrative regulations, or legal precedents, rather than based on amorphous
considerations of the common weal." Borough of Glassboro v. Fraternal Ord.
of Police, Lodge No. 108, 197 N.J. 1, 10 (2008) (citation omitted).
II.
Respondent, a tenured elementary school teacher, began working for the
Board in September 2000. The Board filed certified tenure charges against
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respondent with the Commissioner of Education on April 9, 2019, alleging
"incapacity, excessive absenteeism, and other just cause constituting grounds
requiring her dismissal." More specifically, the Board alleged that respondent
was absent forty-six days during the 2015-16 school year, thirty and one-half
days during the 2016-17 school year, and was continuously absent since
September 30, 2017, the day after she was involved in a car accident.
On May 11, 2019, the Commissioner of Education assigned Dr. Andree
Y. McKissick as the arbitrator for the tenure hearing. In accordance with
N.J.SA. 18A:6-17.1(b)(3), tenure arbitrations "shall be held before the arbitrator
within 45 days of the assignment of the arbitrator to the case." The employee is
required to produce all evidence upon which he or she intends to rely at least ten
days prior to the start of the arbitration. Ibid. On May 17, and June 3, 2019,
respondent timely served her pre-hearing disclosures. Dr. McKissick directed
the parties to submit their witness lists and a written copy of their opening
statements by June 20, 2019. The Board met this deadline, but respondent did
not; later that afternoon, Dr. McKissick conducted a telephone conference with
the attorneys for the parties and set the next hearing date for July 10, 2019.
Approximately two weeks later, on July 3, 2019, respondent's attorney
contacted Dr. McKissick and advised her that he would no longer be
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representing respondent; in addition, he requested a sixty-day adjournment of
the arbitration hearing so that respondent could retain new counsel. Dr.
McKissick granted this request, over the Board's objection. On July 12, Dr.
McKissick contacted the Commissioner of Education and requested that the
timeframe to continue the arbitration be extended until September 3, 2019. The
Commissioner granted her request. On August 22, 2019, respondent hired new
counsel. Thereafter, Dr. McKissick scheduled the hearing to reconvene on
October 17, 2019.
Prior to the continuation of the arbitration, respondent supplemented her
previous discovery disclosures; upon receipt, the Board moved to suppress the
supplemental disclosures. On October 7, 2019, Dr. McKissick denied the
Board's motion, finding that the June 20, 2019 conference call was "a
preliminary hearing," noting "there was no sworn testimony, [no] exhibits, no
direct or cross-examinations nor rebuttals heard" on that date. In addition, Dr.
McKissick explained that "October 17th starts the true, evidentiary hearing" in
this matter; thus, "October 7, 2019 should be the operative date to cure the
outstanding discovery issues." She then found that respondent "was in
compliance" with her discovery obligations and denied the Board's motion to
suppress.
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On October 15, 2019, the Board filed an order to show cause and verified
complaint in the Chancery Division seeking to 1) enjoin and restrain the October
17, 2019 arbitration hearing; 2) remove Dr. McKissick for "arbitral
misconduct"; 3) order the Commissioner of Education to assign a new arbitrator;
4) determine that the underlying tenure matter commenced on June 20, 2019,
and that all disclosures must have been provided on or before June 10, 2019; 5 )
order the newly assigned arbitrator to bar respondent's supplemental disclosures;
and 6) vacate the arbitrator's verbal decision of October 7, 2019. The court
granted the order to show cause and temporarily restrained the arbitration from
proceeding. After respondent filed her answer on October 28, 2019, the court
allowed the parties to file briefs addressing the relevant issues.
By order dated January 15, 2020, the court denied the Board's requests
for relief, finding the Board could not satisfy the third prong of Crowe v. De
Gioia, 90 N.J. 126, 132-34 (1981), which required the Board to show a
reasonable probability of success on the merits. The Board argued that the
arbitrator's ruling should be vacated because "its award was procured by
corruption, fraud, and undue means." In its accompanying statement of reasons,
the court rejected this contention, noting that no award has been made in the
case and that "[r]equests for relief . . . cannot be made in the middle of the
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arbitration hearing due to unfavorable rulings." The court concluded that it
lacked the authority to "adjourn the arbitration hearing, [to] remove Dr.
McKissick, [to] order the Commissioner . . . to appoint a new arbitrator, or [to]
vacate the arbitration verbal decision of October 7, 2019." On January 15, 2020,
the court issued an order denying the Board's request for relief. On February
12, 2020, the court entered an order dismissing the Board's complaint "without
prejudice to such rights as the [Board] may have upon the conclusion of the
Arbitration . . . ."
III.
On appeal, the Board contends that the arbitrator did not follow the time
limits set forth in N.J.S.A. 18A:6-10; thus, her decision was procured by "undue
means" as she exceeded her powers. The Board further contends that, because
of those errors, the arbitrator must be removed from this matter. Concluding
these arguments lack merit, we affirm substantially for the reasons set forth in
the court's statement of reasons attached to its January 15, 2020 order denying
the Board's requests for relief. We add the following comments.
N.J.S.A. 2A:24-8, the statute cited by the Board as authority for vacating
the arbitrator's October 7, 2019 decision, addresses vacating arbitration awards;
however, no award has been issued in this case. The court denied the Board's
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requests for relief after determining it lacked authority to intervene before the
arbitration concluded. Like the motion court, we discern no basis to overturn
the arbitrator's ruling under N.J.S.A. 2A:24-8, particularly given the deference
owed to an arbitrator's ruling.
We are satisfied the trial court correctly denied the Board's requests for
relief. The cases cited by the Board, including Arista Mktg. Assocs., Inc. v. The
Peer Grp., Inc., 316 N.J. Super. 517 (App. Div. 1998), and Belanger v. State
Farm Mut. Auto Ins. Co, 426 N.Y.S.2d 140 (1980), are clearly distinguishable.
In Arista, one of the arbitrators had, in fact, previously served as the attorney
for one of the parties. 316 N.J. Super. at 532. In Belanger, there was a request
for judicial intervention to remove the arbitrator for partiality and misconduct,
among other requests, before an arbitration award was issued. 426 N.Y.S. 2d at
141. While the court in that case stated that where a party becomes aware of
misconduct or partiality of the arbitrator, there was no reason why a court could
not exercise equitable jurisdiction during the proceedings, the case under review
does not involve any such claims of misconduct or partiality. Ibid.
Affirmed.
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