NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3273-20
AMADA SANJUAN,
Plaintiff-Appellant,
v.
SCHOOL DISTRICT OF WEST NEW YORK, HUDSON COUNTY,
Defendant-Respondent. ________________________
Argued April 25, 2022 – Decided August 25, 2022
Before Judges Sumners, Vernoia, and Petrillo.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000030-21.
Evan L. Goldman argued for appellant (Goldman Davis Krumholz & Dillon, PC, attorneys; Evan L. Goldman, of counsel and on the briefs; Kelly A. Smith, on the briefs).
David J. Kass argued for respondent (Florio Perrucci Steinhardt Cappelli Tipton & Taylor, LLC, attorneys; David J. Kass and Lester E. Taylor, on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D. Amada Sanjuan appeals from a Law Division order confirming an
arbitration award which sustained tenure charges filed by the West New York
Board of Education ("Board" or "school district") against her; demoted her
from assistant principal to a fourth-grade teacher; and determined she was not
entitled to backpay withheld from her under N.J.S.A. 18A:6-14 for a one-
hundred-and-twenty-day suspension-without-pay period that was imposed
upon the Board's certification of the charges. Sanjuan's appeal requires us to
consider issues of first impression: (1) whether the arbitrator had the authority
to demote Sanjuan under N.J.S.A. 18A:6-16; and (2) whether the arbitrator had
the right to deny Sanjuan backpay arising from her suspension-without-pay
period after determining her employment should not be terminated.
We affirm the arbitrator's determination that Sanjuan was not entitled to
backpay withheld from her during her suspension-without-pay period based
upon his determination that her conduct was unbecoming of a teaching staff
member. We reverse and remand because upon determining Sanjuan's conduct
was unbecoming but that she should not be terminated, the arbitrator lacked
the statutory authority to demote her from her assistant principal position and
he could only reduce her salary. Sanjuan should be reinstated to her assistant
principal position. On remand, the arbitrator must determine to what extent, if
A-3273-20 2 any, Sanjuan's salary should be further reduced through suspending her
without pay or withholding salary increments, or a combination thereof.
I.
Because this appeal turns on our interpretation of the arbitrator's
authority under N.J.S.A. 18A:6-16 and not whether the Board sustained the
tenure charges, we need not dwell on the facts concerning Sanjuan's actions
and the ensuing procedural history that led to the disciplinary proceeding. To
give context to our decision, a summary will suffice.
After being hired by the Board as a full-time bilingual education teacher
in 1997, and obtaining tenure as a classroom teacher, Sanjuan was promoted to
several supervisory positions until being appointed to an assistant principal
position at Memorial High School in 2019. On the evening of February 12,
2020, Sanjuan was attending a student activity at the high school when she fell
down a flight of stairs, tumbling multiple times until she landed on the floor.
After hearing a commotion, a teacher and a custodian rushed to the stairs
where they saw Sanjuan sitting on the floor and rubbing her thigh. When they
briefly left, Sanjuan reached into her purse, removed a piece of paper, stood
up, walked half-way up the stairway, placed the piece of paper on one of the
stairs, and returned to the bottom of the stairs. Sanjuan then returned to sitting
on the floor, continued to rub her thigh, checked the back of her head and
A-3273-20 3 ankle with her hands, and briefly texted on her cellphone until the custodian
returned with water for her, along with the teacher. She then pointed out to
them there was paper on the stairs that caused her fall.
The following morning, the Board's benefits coordinator spoke to
Sanjuan––who was out of work and home––to complete an illness and injury
report. Based on her conversation with Sanjuan, the benefits coordinator
wrote on the report that "[Sanjuan] saw a piece of paper on the steps, and she
slipped/lost her balance. She fell down the entire set of steps and landed on
her back hitting her head on the concrete floor." Upon receiving the emailed
report from the benefits coordinator, Sanjuan replied that "everything looked
correct"; she signed and scanned the report, and emailed it back to the benefits
coordinator.
Later that same morning, the high school's principal viewed the
surveillance video footage showing Sanjuan's fall and, moments later,
"[w]alk[ing] . . . halfway up the flight of stairs and plac[ing] the [piece of]
paper down on the step." It was later learned that the surveillance video
showing Sanjuan's fall and her placement of the piece of paper on the step was
circulating among staff at one of the school district's elementary schools.
Following an investigation, the Board determined that Sanjuan should be
terminated from her tenured assistant principal position. In accordance with
A-3273-20 4 the Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-10 to -18.1, the
Board on August 31, 2020, certified tenure charges against Sanjuan alleging
conduct unbecoming and suspended her without pay for one hundred and
twenty days. The Board alleged that Sanjuan attempted to "manipulate the
scene" of her fall and made a "false report of the incident"; "continued lying";
her incident report statement constituted "insurance fraud"; was insubordinate
for refusing to disclose the name of the person who told her about the
dissemination of the surveillance video; and other just cause.
The Commissioner of Education reviewed the tenure charges and
Sanjuan's written response, and pursuant to N.J.S.A.18A:6-16, "determine[ed]
that such charge[s] [were] sufficient to warrant dismissal or reduction in salary
of the person charged, [and] . . . refer[red] the case to an arbitrator pursuant to
[N.J.S.A. 18A:6-17.1]." (Emphasis added).
Following a hearing, the arbitrator issued a written award on January 21,
2021, finding Sanjuan's conduct was unbecoming of a teaching staff member
by placing a piece of paper on the steps after her fall to misrepresent how the
incident occurred, and for refusing to reveal who told her about the video of
the incident.1 As for Sanjuan's discipline, the arbitrator rejected the Board's
1 The arbitrator determined the alleged insubordination "play[ed] a notably limited supporting role" in the charges.
A-3273-20 5 position that "it is within [his] right . . . to fashion discipline that is less than
the dismissal of a tenured school employee," noting the Board "attempt[ed] to
draw a line at . . . [Sanjuan's] administrative position, which would [have]
limit[ed] the arbitrator to mitigating the dismissal to a suspension."
Interpreting N.J.S.A. 18A:6-16,2 the arbitrator ruled:
First, this [statutory] language is a threshold for the tenure charge(s) moving to the arbitration step rather than being dissolved for insufficiency; it is not necessarily a limit on the arbitrator's subsequent remedial authority. Second, even if there were a showing that the legislature intended it to serve as a remedial limit, said "reduction" obviously is not attached to the narrow meaning of "salary." If it were, the only lesser discipline that would seem to fit within its scope would be withholding of the annual increment. Indeed[,] such a narrow interpretation would not only negate the parties' . . . agreement about the arbitrator's remedial authority under this ____________________ 2 The statute reads, in relevant part,
[i]f, following receipt of the written response to the charges, the commissioner is of the opinion that they are not sufficient to warrant dismissal or reduction in salary of the person charged, he shall dismiss the same and notify said person accordingly. If, however, he shall determine that such charge is sufficient to warrant dismissal or reduction in salary of the person charged, he shall refer the case to an arbitrator . . . .
[N.J.S.A. 18A:6-16 (emphasis added).]
A-3273-20 6 legislation to modify termination to a suspension without pay, but also exclude demotion of a tenured employee, which by definition includes a reduction in pay, from the prescribed protections of this legislation. As an additional consideration, under the New Jersey statutory framework, tenure—like certification—is separable rather than necessarily coterminous for teachers and principals. Consequently, the intended scope of the cited language provides for the application of the procedural protections of the act, including the decisional and remedial authority of the arbitrator, to extend to the various disciplinary employment actions within the broad meaning of reduction in salary.
[(Footnotes omitted).]
Citing In re Fulcomer, 93 N.J. Super. 404 (App. Div. 1967), where this
court recognized mitigating factors are relevant to disciplinary action in a
tenure charge matter, the arbitrator concluded that Sanjuan's conduct warranted
the loss of her administrative position but did not require a complete
termination of her employment. He reasoned her conduct was limited in scope
"in light of her long and solid record of service, predominantly as a teacher,
and the effect on her public school career," both which justified "equitable
mitigation." Thus, he concluded "rather than justifying the loss of her entire
career, . . . [Sanjuan's] conduct . . . warrants retention of her tenured teaching
role," requiring the district to "reinstate her to a teaching position" as a fourth -
grade teacher.
A-3273-20 7 As for Sanjuan's salary, the arbitrator concluded that her failure to "take
ownership and be literally accountable for her paper placement/pointing
behavior, particularly after viewing the video, warrant[ed] that her
reinstatement . . . be without back[ ]pay," and the Board was not required to
restart Sanjuan's pay and benefits until "[sixty] days [after] receipt of this
[a]ward." Thus, in addition to the suspension without pay for one hundred and
twenty days upon certification of the tenure charges, Sanjuan was suspended
for an additional sixty days.
Sanjuan filed an order to show cause and a verified complaint in the Law
Division, seeking to vacate the arbitration award; reinstate her as assistant
principal; and a return of lost wages beginning from January 21, 2021.3 The
trial court denied Sanjuan relief, confirming the entire arbitration award. In an
addendum to the order, the court reasoned that N.J.S.A. 18A:28-5—which
prescribes the way that teaching staff members obtain tenure, stating "they
shall not be dismissed or reduced in compensation except for inefficiency,
incapacity, or conduct unbecoming . . . or other just cause"—contemplates a
remedial measure "short of termination when it mentions 'reduction in
compensation'" due to "solid service to the school district" as recognized in
3 Sanjuan also requested that "even if the [c]ourt d[id] not immediately reinstate [her] . . . to her previous position as [a]ssistant [p]rincipal, the [c]ourt should set this matter down for a new hearing before a different arbitrator."
A-3273-20 8 Linden Board of Education v. Linden Education Association ex rel. Mizichko,
202 N.J. 268 (2010). This was supported by the court's determination that,
according to In the Matter of Tenure Charges of David Petrella School District
of the Town of Hackensack, Bergen County, Agency Dkt. No. 292-11/19, "an
arbitrator [is] not limited in his/her remedial authority."
Regarding Sanjuan's claim for backpay, the court held that because it
affirmed the arbitrator's award sustaining the tenure charges albeit without
penalizing her by terminating her employment, she was not entitled to backpay
from the one hundred and twenty days that she was suspended without pay. In
sum, the court resolved that since there was no showing of "fraud, corruption,
or similar wrongdoing on the part of the arbitrator, [his] decision may not be
vacated." N.J.S.A. 2A:24-8.
II.
In her appeal, Sanjuan argues the trial court erred in failing to find that
the arbitrator exceeded his statutory authority by demoting her from assistant
principal position to a classroom teaching position. She further argues the
court erred in failing to find that because it confirmed the arbitrator's award
that her employment was not terminated, she "should have been reinstated
immediately with full pay" effective the date of her suspension without pay on
A-3273-20 9 August 31, 2020. To address these issues, we first detail the law governing
our review of proceedings under TEHL.
An arbitrator's determination in a tenure case "shall be final and
binding," but it is "subject to judicial review and enforcement as provided
pursuant to N.J.S.[A. ]2A:24-7 [to -10]." N.J.S.A. 18A:6-17.1. Pertinent to
this appeal, a trial court may vacate an arbitration award "[w]here the award
was procured by . . . undue means" or "[w]here the arbitrator[] exceeded or so
imperfectly executed [his or her] powers that a mutual, final and definite
award upon the subject matter submitted was not made." N.J.S.A. 2A:24-8(a)
and (d). "Undue" means occurs due to "an arbitrator's failure to follow the
substantive law." In re City of Camden, 429 N.J. Super. 309, 332 (App. Div.
2013). An arbitrator exceeds his or his authority by ignoring "the clear and
unambiguous language of [a statute]." City Ass'n of Supervisors & Adm'rs v.
State Operated Sch. Dist. of City of Newark, 311 N.J. Super. 300, 312 (App.
Div. 1998). Accordingly, an arbitrator's authority is limited by statute and "the
questions framed by the parties in a particular dispute." Bound Brook Bd. of
Educ. v. Ciripompa, 228 N.J. 4, 12 (2017) (quoting Local No. 153, Office &
Prof. Emps. Int'l Union v. Tr. Co. of N.J., 105 N.J. 442, 449 (1987)). Because
we owe no special deference to the trial court's interpretation of the law and
the legal consequences that flow from the established facts, we review the
A-3273-20 10 court's decision on a motion to vacate an arbitration award de novo.
Yarborough v. State Operated Sch. Dist. of City of Newark, 455 N.J. Super.
136, 139 (App. Div. 2018).
A.
Sanjuan argues that because her tenure was not terminated, she should
be reinstated to full pay effective August 31, 2020, when her suspension
without pay for one hundred and twenty days commenced. We are not
persuaded.
When tenure charges are filed against a teaching staff member under
N.J.S.A. 18A:6-14, the board of education may suspend "the person against
whom such charge is made, with or without pay, but, if the determination of
the charge . . . is not made within 120 calendar days after certification of the
charges, excluding all delays which are granted at the request of such person,
then the full salary (except for said 120 days) of such person shall be paid
beginning on the one hundred twenty-first day until such determination is
made."
There is no merit to Sanjuan's assertion that she is entitled to return of
her full pay taken from her during her one-hundred-and-twenty-day
suspension-without-pay period because she was not terminated. Although she
was not terminated, the arbitrator determined, which the trial court upheld, that
A-3273-20 11 the Board proved her conduct was unbecoming. In fact, she does not challenge
that determination on appeal. The arbitrator determined that Sanjuan's
two-decades plus "solid service to the school district" was a significant factor
mitigating against her termination. The retention of her employment did not
dismiss or render moot the tenure charges. Because it was determined Sanjuan
committed unbecoming conduct, the plain meaning of N.J.S.A. 18A:6-14
authorizes and supports the arbitrator's determination Sanjuan was not entitled
to a return of the salary she did not receive during her suspension without pay.
B.
The arbitrator's belief––confirmed by the trial court––that he had the
authority under our tenure laws to demote Sanjuan to a classroom teaching
position from her tenured assistant principal position for unbecoming conduct
was mistaken. N.J.S.A. 18A:6-10 requires 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."
(Emphasis added). Similarly, under N.J.S.A. 18A:6-16, this disciplinary
limitation is reiterated wherein it states that for tenure charges to proceed to an
arbitrator the Commissioner must "determine that such charge is sufficient to
warrant dismissal or reduction in salary." (Emphasis added).
A-3273-20 12 To determine and effectuate N.J.S.A. 18A:6-10's intent, we examine its
words' "ordinary meaning and significance, and read them in context with
related provisions so as to give sense to the legislation as a whole." N.J.
Election Law Enf't Comm'n v. DiVincenzo, 451 N.J. Super. 554, 576 (App.
Div. 2017) (quotation marks omitted). The ordinary and well understood
meaning of "dismissal" in the context of employment is "to permit or cause to
leave," or "to remove from position or service." Merriam-Webster Dictionary
360 (11th ed. 2020). The common meaning of "reduce" is to "diminish in size,
amount, extent, or number." Merriam-Webster Dictionary 1044 (11th ed.
2020). Thus, a reduction in an employee's compensation is done through a
suspension without pay or a salary increment withholding. Contrary to the
Board's contention, relying on these dictionary definitions is consistent with
our jurisprudence, as it enables us to understand the Legislature's intent in how
school boards may discipline its tenured teaching staff. See Thompson v.
Potenza, 364 N.J. Super. 462, 469 (App. Div. 2003) (noting "[d]ictionary
definitions may be utilized to determine a word's common meaning").
The arbitrator's award demoting Sanjuan is inconsistent with the
disciplinary action set forth in N.J.S.A. 18A:6-10. That clear statutory
mandate provides that tenure charges that are sustained against a tenured
teaching staff member can only result in termination or depriving her or him
A-3273-20 13 salary. The latter can be done through an increment withholding, a period of
suspension without pay, or both. Nowhere does the statute provide that an
employee can be demoted. To "demote" is "to reduce to a lower grade or
rank" or "to relegate to a less important position." Merriam-Webster
Dictionary 332 (11th ed. 2020). Even though, as the Board argues, a demotion
of Sanjuan results in a reduction of her salary, a demotion by its definition and
in fact, is more than that. The arbitrator's award takes Sanjuan from a high-
level school-based administrative position to a classroom teaching position,
not only with lesser salary for the rest of her career with the Board, but with
none of the supervisory responsibilities required of an assistant principal. The
difference is stark and beyond the statute's plain meaning.
Since the enactment of N.J.S.A. 18A:6-10 and N.J.S.A. 18A:6-16 in
1967, requiring that the Commissioner of Education conduct a hearing and
determine whether the penalty of dismissal or reduction in compensation be
imposed for sustained tenured charges, 4 and after the enactment of the TEHL
requiring that an arbitrator decide tenure cases, we have found no case law
upholding the penalty of demoting a tenured teaching staff member to a
lower-titled, previously held tenured classroom teaching position. The trial
4 L. 1967, c. 271.
A-3273-20 14 court's reliance upon In re Fulcomer, Linden, and In re David Petrella to
support its determination that the arbitrator had the authority to impose the
lesser penalty of demoting Sanjuan instead of terminating her is misplaced.
In In re Fulcomer, a dispute prior to the TEHL, this court determined
that the Commissioner of Education misinterpreted his statutory powers and
remanded the tenure case to the Commissioner
for the purpose of making an affirmative decision as to the proper penalty to be imposed. Such penalty should be based upon the Commissioner's findings as to the nature and gravity of the offenses under all the circumstances involved, any evidence as to provocation, extenuation or aggravation, and should take into consideration 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.
[93 N.J. Super. at 422.]
While recognizing the Commissioner could consider a teacher's prior
good behavior and teaching ability in imposing discipline where tenure
charges are sustained, id. at 421-422, we did not address the issue raised here
as to whether an arbitrator had the authority to demote a tenured employee for
unbecoming conduct rather than dismissing her or him.
In Linden, our Supreme Court held that the arbitrator had the authority
to issue a suspension without pay instead of terminating a custodian for
misconduct based upon the arbitrator's application of the collective bargaining
A-3273-20 15 agreement (CBA) between the custodian's collective bargaining unit and the
Linden Board of Education. 202 N.J. at 270-71. The Court ruled that under
the CBA and the question presented to the arbitrator—"Did the Board of
Education have just cause to terminate the employment of [the custodian]?
And, if not, what shall be the remedy?"—the arbitrator "imposed a fair
sanction" of suspension without pay based upon his reasonably debatable
decision that there was no just cause for termination. Id. at 277, 281. The
Court emphasized that "[t]he [CBA] language drives our decision." Id. at 281.
The controversy in Linden did not involve an arbitrator's determination
under N.J.S.A. 18A:6-10, whether to "dismiss[] or reduce[] in compensation"
of a tenured teaching staff member for unbecoming conduct, as is the situation
here. The arbitrator's authority to demote a tenured teaching staff member was
not before the Court.
As for In re David Petrella, the arbitrator determined that tenure charges
were sustained and "dismissed" Petrella from his tenured athletic director
position and any other tenured position he held in the Hackensack school
district. Petrella v. Hackensack Bd. of Educ., No. A-2113-19 (App. Div. Mar.
A-3273-20 16 5, 2021), slip op. at 2.5 The arbitrator did not hold he had the statutory
authority to demote Petrella to a lower-titled previously held tenured position.
Thus, there was no basis for the trial court to rely upon In re David Petrella for
the proposition that an arbitrator has the authority to impose the discipline of
demotion in a tenure matter.
Because our Legislature chose not to include demotion as a penalty for a
teaching staff member, an arbitrator has no authority to impose that form of
disciplinary action upon finding that a board of education sustained tenure
charges. Moreover, neither party contended before the arbitrator that in lieu of
terminating Sanjuan, he had the authority to demote her to her former
classroom teaching position.
Accordingly, we vacate the trial court's order upholding the arbitrator's
award demoting Sanjuan due to her unbecoming conduct. We remand to the
arbitrator to issue a supplemental award regarding to what extent, if any, her
salary should be reduced through a further suspension without pay or
increment withholding, or a combination thereof. We recognize that the
arbitrator has already determined Sanjuan is suspended without pay for sixty
days beyond the initial one-hundred-and-twenty-day suspension imposed by
5 We cite an unpublished opinion for factual support of the arbitrator's ruling. See Barnes v. Sherrer, 401 N.J. Super. 172, 176 (App. Div. 2008); see also R. 1:36-3.
A-3273-20 17 the Board. We take no position whether Sanjuan's salary should be further
reduced.
In reaching this resolution, we reject the Board's position that if we
determine the arbitrator exceeded his authority, the arbitrator should be given
the opportunity to reconsider the penalty of termination. The arbitrator has
already determined that Sanjuan should not be terminated; therefore, we
discern no legal or equitable basis to have him revisit that ruling.
We leave it to the arbitrator's discretion to entertain any oral argument or
written submissions on remand. The arbitrator shall issue his supplemental
award within ninety days upon receipt of this decision from either party.
Thereafter, either party may exercise their rights under the law to confirm or
vacate the award.
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
A-3273-20 18