MICHELE SCHWAB VS. WOODBRIDGE TOWNSHIP SCHOOL DISTRICT BOARD OF EDUCATION, MIDDLESEX COUNTY (L-1068-17, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4768-16T1
MICHELE SCHWAB,
Plaintiff-Appellant,
v.
WOODBRIDGE TOWNSHIP SCHOOL
DISTRICT BOARD OF EDUCATION,
MIDDLESEX COUNTY,
Defendant-Respondent.
________________________________
Argued April 24, 2018 – Decided June 15, 2018
Before Judges Yannotti and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
1068-17.
Edward A. Cridge argued the cause for
appellant (Mellk O'Neill, attorneys; Edward A.
Cridge, of counsel and on the brief).
Ari D. Schneider argued the cause for
respondent (The Busch Law Group LLC,
attorneys; Ari D. Schneider, of counsel and
on the brief).
PER CURIAM
Plaintiff Michele Schwab appeals from an order entered by the
Law Division on May 26, 2017, denying her motion to vacate an
arbitration award that upheld the termination of her employment
by defendant Woodbridge Township Board of Education (Board). We
affirm.
This appeal arises from the following facts. On February 7,
2015, plaintiff entered a Sears at the Woodbridge Center Mall
where loss prevention agents observed her placing a hat and hooded
sweatshirt into her purse. After plaintiff exited the store, a
store employee stopped plaintiff and asked her to return to the
store and discuss the merchandise the employee believed she had
stolen. When confronted with surveillance footage, plaintiff
admitted in writing to removing store merchandise without payment.
During the meeting with plaintiff, the Sears asset protection
manager referred the matter to the Woodbridge Township police. The
police subsequently arrested plaintiff and filed a criminal
complaint against her in the municipal court. The court later
dismissed the complaint when the Sears employee failed to appear
and testify against plaintiff.
The Board learned of plaintiff's arrest on March 3, 2015,
when Dr. Robert Zega, Superintendent of Schools for Woodbridge
Township's School District (District), received a letter from
plaintiff's attorney. Dr. Zega had been unaware of plaintiff's
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arrest. After he received the letter, Dr. Zega scheduled a meeting
with the District's director of personnel, plaintiff, and her
union representative. At the meeting, which took place on March
4, 2015, plaintiff admitted she had been arrested for shoplifting.
Dr. Zega suspended plaintiff with pay pending investigation of the
incident.
Several months later, Dr. Zega lifted the suspension after
he learned that the municipal court had dismissed the criminal
charges against plaintiff. At the arbitration hearing, Dr. Zega
explained that he was "hoping that this was a one-time incident"
and "wanted to be compassionate to [plaintiff] and return her to
the classroom."
On March 5, 2016, plaintiff entered a store in Beach Haven,
where she picked up a picture frame valued at $60, "placed it in
her purse and left the store without paying for the item." The
store's owner was unaware that plaintiff had taken the picture
frame. However, after later discovering that the frame was missing,
the store's owner viewed the surveillance footage, and posted the
footage on the social media website "Facebook" in an effort to
identify the individual responsible. The video was viewed
approximately 47,000 times, and at least one of plaintiff's fourth-
grade students saw the video.
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After another teacher at plaintiff's school brought the video
to the attention of the school's principal, the principal viewed
the video. Plaintiff was identified as the person who took the
picture frame from the Beach Haven store. She was arrested by
Beach Haven police and charged with shoplifting. During a court
proceeding on May 2, 2016, plaintiff applied for admission to the
conditional dismissal program. N.J.S.A. 2C:43-13.1 to -13.9. Entry
into this program requires a guilty plea. N.J.S.A. 2C:43-13.1(a).
Plaintiff pled guilty and she was admitted to the program.
On April 25, 2016, Dr. Zega filed tenure charges against
plaintiff, with several counts of unbecoming conduct and/or other
just cause for disciplinary action based upon: (1)
theft/shoplifting (two counts); (2) the failure to report her
arrest; (3) violations of district policies; and (4) a pattern of
unbecoming conduct, insubordination and/or other just cause over
a substantial period of time. On April 28, 2016, the Board
considered the tenure charges. The Board voted unanimously to
suspend plaintiff without pay and to certify the charges to the
Commissioner of Education (Commissioner).
On April 29, 2016, the Board transmitted the tenure charges
to the Commissioner. On May 13, 2016, plaintiff filed an answer
with the Commissioner, seeking dismissal of the charges and her
reinstatement with back pay. Thereafter, the Commissioner
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transmitted the tenure charges to an arbitrator for a hearing
pursuant to N.J.S.A. 18A:6-16.
The arbitrator conducted evidentiary hearings on August 20,
September 7, and October 4, 2016. At the hearings, the District
presented testimony from Dr. Vega, the principal of plaintiff's
school, and the Sears asset protection manager. Plaintiff also
testified and called two expert witnesses in psychiatry who
discussed her mental health history. The parties also submitted
documentary evidence.
Plaintiff's principal testified that due to the public nature
of the shoplifting incident, she received eight calls from parents
expressing their concern. She further testified that the students
in the school's two fourth-grade classes became aware of the video
posted on Facebook. She explained that she had assigned the
school's guidance counselor to provide lessons to the fourth-grade
students to instruct them in positive behavior and assist them in
distinguishing between rumor and fact.
On January 5, 2017, the arbitrator issued his opinion on the
charges. The arbitrator noted that plaintiff had admitted she
engaged in the conduct that resulted in her arrests in February
2015 and March 2016, and that her conduct was illegal and
inappropriate. She also conceded her conduct had a harmful impact
upon the District and constituted a breach of her trust as a
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teacher. Plaintiff argued, however, that she remained fit to
continue as a teacher in the school. She also asserted that her
mental health issues and the change in her medication were
contributing factors in her conduct. She argued that her removal
was draconian and not warranted by the circumstances.
The arbitrator found, however, that plaintiff had violated
her duty to report her first arrest, and that she had engaged in
unbecoming conduct that affected the proper operation of the
school. The arbitrator found that the Board had "met its burden
to establish that [plaintiff] engaged in the conduct alleged and
that it had just cause to discipline [her]." The arbitrator found
that removal was the appropriate penalty.
On February 21, 2017, plaintiff filed a complaint and Order
to Show Cause in the Law Division seeking an order vacating the
arbitration award. Plaintiff alleged the arbitrator failed to
review the matter de novo and improperly applied an abuse-of-
discretion standard.
On May 26, 2017, the judge issued his decision, stating "there
were distinct findings by the arbitrator sustaining the
unavoidable conclusion that [plaintiff] engaged in the unbecoming
conduct." The judge explained that
[t]he language of the arbitrator's decision
upon which plaintiff relies in support of the
assertion that the arbitrator applied the
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lesser standard of abuse of discretion in
reaching his conclusion . . . is contravened
by the extensive narrative addressing the
plaintiff's unbecoming conduct, and that
specific language . . . relied upon by the
plaintiff this [c]ourt finds to be . . . not
more than dicta.
Accordingly, the judge denied plaintiff's application to
vacate the arbitrator's award and entered the order dated May 26,
2017, memorializing his determination. This appeal followed.
On appeal, plaintiff argues that the trial court erred by
refusing to vacate the arbitration award. We disagree.
"Judicial review of an arbitration award is very limited."
Bound Brook Bd. of Ed. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting
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." Ibid.(quoting Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221
(1979)).
N.J.S.A. 18A:6-10 provides that a tenured public school
employee may not be "dismissed or reduced in compensation . . .
except for inefficiency, incapacity, unbecoming conduct, or other
just cause." The school board must find that charges are
substantiated and refer them to the Commissioner. N.J.S.A. 18A:6-
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11. If the Commissioner finds the charges have merit, the matter
is referred to an arbitrator for decision. N.J.S.A. 18A:6-16.
The arbitrator's decision is "final and binding," but is
subject to judicial review. N.J.S.A. 18A:6-17.1(e). The award may
only be set aside:
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; [or]
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, plaintiff was charged with unbecoming conduct, which
is conduct that "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." Ciripompa, 202 N.J. at 13 (quoting In re Young, 202
N.J. 50, 66 (2010)) (alterations in original).
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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 and legally correct.'" Id. at 13-14
(quoting Karins, 152 N.J. at 555; Hartmann v. Police Dep't of
Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)).
In determining whether a teacher has engaged in unbecoming
conduct, the Commissioner may take into account "any harm or
injurious effect which the teacher's conduct may have had on the
maintenance of discipline and the proper administration of the
school system." In re Grossman, 127 N.J. Super. 13, 30 (App. Div.
1974) (quoting In re Fulcomer, 93 N.J. Super. 404, 422 (App. Div.
1967)).
Plaintiff argues that the arbitrator "imperfectly executed"
his powers, thereby requiring the vacation of the award pursuant
to N.J.S.A. 2A:24-8d. Plaintiff maintains the arbitrator
erroneously reviewed the Board's decision using an abuse-of-
discretion standard, rather than reviewing the decision "de novo."
Plaintiff notes that when rendering a decision on tenure
charges, the Commissioner is required to make an independent
decision on the charges and the penalty to be imposed. Fulcomer,
93 N.J. Super. at 409-10 (App. Div. 1967). Plaintiff contends that
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since N.J.S.A. 2A:6-16 now requires the Commissioner to refer
tenure charges to an arbitrator for a hearing, the arbitrator also
must make "an independent decision" on the charges, and not review
the Board's decision under an abuse-of-discretion standard.
In support of this contention, plaintiff relies upon the
following statements in the arbitrator's opinion:
This repeated act of dishonesty within a
thirteen (13) month period allowed the
District to exercise its discretion to remove
[plaintiff] from her tenured position.
District policy provides for the penalty of
dismissal "when appropriate." This requires
the District to exercise its judgment in
accordance with just cause principles. A
penalty short of removal was within the
discretion of the District but I cannot find
that it abused its discretion by not doing so.
. . . .
I also conclude that the evidence concerning
[plaintiff's] mental health history cannot
serve to mitigate against the District's
decision to impose the penalty of removal.
However, as the trial court explained in its decision, these
statements were "contravened by the extensive narrative" offered
by the arbitrator, which thoroughly addressed plaintiff's
unbecoming conduct that led to her termination.
Although plaintiff asserts the arbitrator's references to the
Board's "discretion" and "judgment" show that the arbitrator was
being "deferential to the Board's desire to end" her employment,
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the arbitrator made clear the Board had the burden of proof. The
arbitrator stated that the Board had to establish that plaintiff
engaged in the conduct alleged, and if so, whether disciplinary
action was warranted. The arbitrator never stated the Board only
had to show that it did not abuse its discretionary authority.
As the trial court noted in its decision, the arbitrator's
statements show that he had a clear understanding of the standard
of review he was required to apply. Given the arbitrator's extended
discussion of the relevant facts, including plaintiff's two
arrests, her failure to report the first arrest, and the impact
these arrests had on the school and the students, the trial court
correctly determined that the arbitrator's references to the
"discretion" and "judgment" of the Board amounted to "no[] more
than dicta."
We therefore conclude the arbitrator applied the correct
standard in determining whether the Board had carried its burden
of proving the conduct alleged, and whether disciplinary action
was warranted. The trial court correctly found that plaintiff had
not established a basis to set aside the arbitration award under
N.J.S.A. 2A:24-8.
Affirmed.
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