DAVID PETRELLA VS. THE HACKENSACK BOARD OF EDUCATION, BERGEN COUNTY (C-000222-19, BERGEN COUNTY AND STATEWIDE)

D
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2113-19

DAVID PETRELLA,

          Plaintiff-Appellant,

v.

THE HACKENSACK BOARD
OF EDUCATION, BERGEN
COUNTY,

     Defendant-Respondent.
___________________________

                   Submitted January 5, 2021 – Decided March 5, 2021

                   Before Judges Gilson and Gummer.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Bergen County, Docket No. C-
                   000222-19.

                   Schwartz Law Group, LLC, attorneys for appellant
                   (Andrew L. Schwartz and Robert J. Schwartz, on the
                   briefs).

                   Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
                   LLC, attorneys for respondent (Afshan T. Ajmiri Giner,
                   of counsel and on the brief; David I. Solomon, on the
                   brief).
PER CURIAM

      This appeal arises out of the dismissal of a public-school employee

following arbitration of tenure charges. Plaintiff David Petrella appeals from a

December 20, 2019 order that dismissed his complaint to vacate an arbitration

award, under which Petrella had been dismissed from his tenured employment

with the Hackensack school district. He contends that the arbitration award was

procured by undue means because the arbitrator allowed the school board to

submit additional exhibits after the matter had been referred to arbitration. We

reject that argument and affirm.

                                         I.

      From 1994 to 2018, plaintiff worked for the Hackensack Board of

Education (Board). He started as a teacher, later became the principal of a

middle school, and ultimately was the director of athletics for the school district.

      In November 2018, the acting superintendent filed tenure charges seeking

to dismiss plaintiff. Plaintiff was charged with nine tenure violations covering

a range of alleged misconduct and failures, including failing to ensure proper

supervision, which led to a student's injury, making an inappropriate comment,

and failing to ensure that coaches had current CPR and first-aid certifications.




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      After plaintiff filed an answer to those charges, the Board found probable

cause and certified the tenure charges to the Commissioner of Education

(Commissioner). The Board also suspended plaintiff without pay for 120 days

pursuant to N.J.S.A 18A:6-14.

      In December 2018, the Board submitted its list of exhibits and witnesses

and the matter was referred to an arbitrator in accordance with the Tenured

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

arbitration was conducted on six days during February, March, and April 2019.

When the charges were referred to the arbitrator, the Board had listed twenty

exhibits. During the arbitration, the arbitrator allowed the Board to submit an

additional seventeen exhibits.

      On May 18, 2019, the arbitrator issued a written decision and award,

finding that plaintiff had engaged in unbecoming conduct and dismissing him

from employment as athletic director. In a detailed seventy-two-page decision,

the arbitrator found evidence supporting six of the tenure charges against

plaintiff. In particular, the arbitrator found that the charges related to the severe

injury to a student were the most egregious. The arbitrator also found that

plaintiff's cumulative transgressions and omissions established a pattern of

unbecoming conduct warranting dismissal.


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                                         3
      On June 21, 2019, in response to the parties' requests, the arbitrator

clarified the award. In that regard, the arbitrator determined that plaintiff was

subject to dismissal from all tenured positions and was not entitled to

reimbursement for the period during which he was suspended.

      In August 2019, plaintiff filed a complaint in the Chancery Division

seeking to vacate the arbitration award. Plaintiff asserted that the award was

procured by undue means and that the arbitrator had exceeded and imperfectly

executed his authority, made mistakes of fact and law, and misapplied the

standard for determining unbecoming conduct. In response, the Board moved

to dismiss the complaint and confirm the award.

      After hearing oral arguments, the Chancery court issued an order on

December 20, 2019 dismissing the complaint with prejudice and affirming the

arbitration award.      In an accompanying written opinion, the court

comprehensively reviewed, analyzed, and rejected all of plaintiff's challenges to

the award. In its analysis, the Chancery court reviewed the six charges the

arbitrator had found, evaluated the evidence supporting those charges, and

concluded that there were no grounds to reject the award.

                                       II.




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      Plaintiff now appeals from the order of the Chancery court. He makes one

argument on this appeal: the arbitration award should be vacated because it was

procured by undue means.       Specifically, plaintiff asserts that because the

arbitrator considered seventeen exhibits that were submitted during the

arbitration, the arbitrator violated N.J.S.A. 18A:6-17.1(b)(3). Accordingly, he

contends the award should be vacated and the matter remanded for new

proceedings. We disagree.

      The Tenure Law provides tenured public-school employees with certain

procedural and substantive protections from termination. Bound Brook Bd. of

Educ. v. Ciripompa, 

228 N.J. 4

, 11 (2017). If a board of education substantiates

tenure charges, the charges are submitted to the commissioner. N.J.S.A. 18A:6-

11. If the commissioner determines the charges merit termination, the matter is

referred to arbitration. N.J.S.A. 18A:6-16.

      When the matter is referred for arbitration, the board of education

            shall provide all evidence including, but not limited to,
            documents, electronic evidence, statements of
            witnesses, and a list of witnesses with a complete
            summary of their testimony, to the employee or the
            employee's representative. The employing board of
            education shall be precluded from presenting any
            additional evidence at the hearing, except for purposes
            of impeachment of witnesses.

            [N.J.S.A. 18A:6-17.1(b)(3).]

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      "The arbitrator's determination shall be final and binding" and is "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(e). Sections 24-7 through

24-10 of Title 2A are part of the statute governing mandatory arbitration of

collective bargaining agreements. See N.J.S.A. 2A:24-1 to -11.

      "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). "In the

public sector, an arbitrator's award will be confirmed 'so long as the award is

reasonably debatable.'"

Ibid. (quoting Middletown Twp.

PBA Loc. 124 v. Twp.

of Middletown, 

193 N.J. 1

, 11 (2007)). The arbitration statute limits a court to

four grounds to vacate an arbitration 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;

            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.

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                                       6
            [N.J.S.A. 2A:24-8(a) to (d).]

      Plaintiff focuses his challenge on undue means.          "'[U]ndue means'

ordinarily encompasses a situation in which the arbitrator has made an

acknowledged mistake of fact or law or a mistake that is apparent on the face of

the record[.]" Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 

213 N.J. 190

, 203 (2013) (first alteration in original) (quoting Off. of Emp. Rels. v.

Commc'ns Workers of Am., 

154 N.J. 98

, 111-12 (1998)); see also Yarborough

v. State Operated Sch. Dist. of Newark, 

455 N.J. Super. 136

, 139-40 (App. Div.

2018).

      The arbitrator found that the Board had proven that plaintiff had failed to

ensure supervision of a concession stand, leading to a severe injury to a student;

made misrepresentations during the investigation of the injury to the student ;

made a highly inappropriate comment about teachers dating students; failed to

enforce snow-day protocols; and failed to ensure that coaches had current CPR

and first-aid certifications. The arbitrator also found that those misconducts and

omissions established a pattern of unbecoming conduct.

      Plaintiff contends that those findings were all procured by undue means

because the Board submitted seventeen additional exhibits during the

arbitration. The Board did not add a new charge, nor did it materially expand

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any of the original nine charges.      Instead, the record establishes that the

additional exhibits were submitted when plaintiff challenged the basis or scope

of the Board's charges. In that context, the arbitrator allowed the Board to offer

additional exhibits beyond the original twenty exhibits the Board had submitted.

      In his comprehensive review of the evidence, the arbitrator relied on the

testimony provided and the exhibits originally submitted by the Board.

Although the arbitrator also referenced the additional exhibits, those references

were in connection with some, but not all, of the charges found. The arbitrator

also determined that plaintiff was not prejudiced by the submission of the

additional exhibits because he had a full and fair opportunity to dispute all the

charges. Moreover, the new exhibits did not raise new charges, nor did they

materially expand on the original nine charges.

      Plaintiff relies on three decisions by arbitrators who dismissed tenure

charges when the Board attempted to submit exhibits in violation of N.J.S.A.

18A:6-17.1(b)(3). See In re Tenure Hearing of Ebert, No. 267-9/14 (N.J. Dep't

of Educ. Jan. 30, 2015) (Denenberg, Arb.); In re Tenure Hearing of Gordon, No.

24-1/18 (N.J. Dep't of Educ. Aug. 13, 2018) (Licata, Arb.); and In re Tenure

Hearing of Fetty, No. 173-7/19 (N.J. Dep't of Educ. Sep. 3, 2019) (Zudick, Arb.)

Initially, we note that these are unpublished decisions that are not binding


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authority.   Moreover, the decisions all involved pre-hearing procedural

violations distinguishable from the issue on this appeal: the submission of

additional exhibits during the arbitration. Furthermore, all the decisions relied

on by plaintiff involved the arbitrator not accepting the exhibits . Here, by

contrast, the arbitrator invited and accepted the exhibits. Arbitrators are vested

"with broad discretion over discovery and other procedural matters to 'conduct

an arbitration in such manner as the arbitrator considers appropriate for a fair

and expeditious disposition of the proceeding.'" Minkowitz v. Israeli, 433 N.J.

Super. 111, 144 (App. Div. 2013) (quoting N.J.S.A. 2A:23B-15a). A court's

authority to vacate an arbitration award, however, is strictly limited.       See

N.J.S.A. 2A:24-8(a) to (d).

      In short, when reviewed in full context, we discern no undue means

tainting the arbitrator's decision. The arbitration award was not based on an

acknowledged mistake of fact or law. Instead, plaintiff disputes the facts found

by the arbitrator. Neither the Tenure Act nor the governing arbitration statute

allows us to vacate the award on a dispute of the factual findings.

      Affirmed.




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