BRETT D. HOLEMAN VS. FREEHOLD REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION (C-000128-17, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 29, 2018
• Docket: A-1778-17T3
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1778-17T3

BRETT D. HOLEMAN,

Plaintiff-Appellant,

v.

FREEHOLD REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION,

Defendant-Respondent. ____________________________

Argued November 13, 2018 – Decided November 29, 2018

Before Judges Fasciale and Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C- 000128-17.

James R. Zazzali, Jr. argued the cause for appellant (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; James R. Zazzali, Jr., of counsel and on the briefs; Kaitlyn E. Dunphy, on the briefs).

Jeffrey R. Caccese argued the cause for respondent (Comegno Law Group, PC, attorneys; Mark G. Toscano and Jeffrey R. Caccese, of counsel and on the brief). PER CURIAM

Dr. Brett D. Holeman (plaintiff) appeals from an October 31, 2017 order

denying his motion to vacate an arbitrator's award, which upheld tenure charges.

We affirm.

Plaintiff began working as a school psychologist for the Freehold

Regional High School District Board of Education (the Board) in 2004, and was

tenured in 2007. In the spring of 2016, there was a "breakdown" between

plaintiff and the staff and administration. Because of plaintiff's alleged mention

of steroids and raising his voice during a counseling session with a student, the

Board suspended plaintiff and required him to undergo fitness for duty

examinations, including drug testing and a psychological evaluation.

On April 25, 2016, the Board sent plaintiff a memorandum listing six

allegations made against him. In the memorandum, the Board advised plaintiff

that he (1) "[e]ngaged in inappropriate behavior (. . . comments, language and

expressions), including the use of profanity, reference to sexual activity in front

of students[, and] the use of extreme volume with students and parents within a

confidential counseling environment;" (2) "[m]ade repeated derogatory and

demeaning remarks about and to colleagues and supervisors;" (3) "[e]ngaged in

erratic and concerning behaviors that intruded into and unnecessarily disrupted

A-1778-17T3 2 the workplace of colleagues;" (4) "[j]eopardized the State mandated testing

environment to which he was assigned;" (5) [d]emonstrated an overall lack of

respect for authority;" and (6) "[d]isregarded the [Board]'s organizational plan

and failed to observe or use proper chain of command when raising issues or

concerns."

In August 2016, the Board brought tenure charges against plaintiff and

expressed "concerns" with plaintiff's "erratic, volatile, and overall troubling

behavior." It detailed "a series of inappropriate and unethical conduct and

behavior that dates back as far . . . as [plaintiff's] initial application for

employment." A settlement conference was unsuccessful, so arbitrator Stephen

J. Rosen conducted twelve hearings between January and March 2017. The

arbitrator rendered the Arbitration Award (the Arbitration Award or the Award)

on May 12, 2017, and the Board then terminated plaintiff.

Plaintiff filed an order to show cause seeking to vacate the award. Judge

Del Bueno Cleary conducted oral argument, and found that the arbitrator's

decision applied the correct standard and did not violate N.J.S.A. 2A:24-8, the

evidence established that plaintiff engaged in misconduct, termination was

appropriate, and there was no violation of public policy.

A-1778-17T3 3 On appeal, plaintiff argues that we should vacate this public sector

arbitration award as it was procured by undue means; the arbitrator exceeded or

imperfectly executed his powers in applying the proper standard and burden of

proof; the Award was not based on substantial credible evidence; and the Award

was inconsistent with public policy.

"Judicial review of an arbitration award is very limited." Bound Brook

Bd. of Educ. 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)).

In reviewing the order under review, we owe no special deference to the

judge's interpretation of the law and the legal consequences that flow from the

established facts. Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (citing

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

We thus review the judge's decision on a motion to vacate an arbitration award

de novo. Minkowitz v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013).

N.J.S.A. 2A:24-8(a) states that, "[t]he court shall vacate the award . . .

[w]here the award was procured by corruption, fraud or undue means."

A-1778-17T3 4 "'[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

Local 275, 213 N.J. 190, 203 (2013) (alteration in original) (quoting Office of

Emp. Relations v. Commc'ns Workers, 154 N.J. 98, 111 (1998)). While New

Jersey courts generally favor arbitration awards, a court may vacate a public

sector arbitration award if it violates substantive law or public policy. In re City

of Camden, 429 N.J. Super. 309, 330-31 (App. Div. 2013). See also Jersey City

Educ. Ass'n, Inc. v. Bd. of Educ., 218 N.J. Super. 177, 188 (App. Div. 1987);

Commc'ns Workers of Am., Local 1087 v. Monmouth Cty. Bd. of Soc. Servs.,

96 N.J. 442, 453-55 (1984).

To vacate the award, the court "must consider more than whether a mere

mistake occurred." Minkowitz, 433 N.J. Super. at 150. Instead,

the arbitrators must have clearly intended to decide according to law, must have clearly mistaken the legal rule, and that mistake must appear on the face of the award. In addition, the error, to be fatal, must result in a failure of intent or be so gross as to suggest fraud or misconduct.

[Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 357 (1994) (citation omitted).]

A-1778-17T3 5 Moreover, "undue means" does "not include situations . . . where the arbitrator

bases his decision on one party's version of the facts, finding that version to be

credible." Local No. 153, Office & Prof'l Emps. Int'l Union v. Tr. Co. of New

Jersey, 105 N.J. 442, 450 n.1 (1987).

N.J.S.A. 2A:24-8(d) states that, "[t]he court shall vacate the award . . .

[w]here the arbitrators exceeded or so imperfectly executed their powers that a

mutual, final and definite award upon the subject matter submitted was not

made." Plaintiff claims that the arbitrator exceeded his powers by, instead of

using the standard for "conduct unbecoming," creating a "self-styled" standard

– the "irrevocable differences" standard – in violation of N.J.S.A. 2A:24-8.

The phrase "conduct unbecoming" has been described as an "elastic one."

Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (quoting In Re

Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960)). The 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.'"

Ciripompa, 228 N.J. at 13 (alterations in original) (quoting In re Young, 202

N.J. 50, 66 (2010)).

[A] finding of unbecoming conduct need not be predicated upon the violation of any particular rule or

A-1778-17T3 6 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 (citation and internal quotation marks omitted).]

In a school tenure case, "the touchstone is fitness to discharge the duties

and functions of one's office or position." In re Grossman, 127 N.J. Super. 13,

29 (App. Div. 1974). "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." Ciripompa, 228 N.J. at 14. As to incapacity, this court has

explained that "the school authorities have the right and the duty to screen the

officials, teachers, and employees as to their fitness to maintain the integrity of

the schools as a part of ordered society, [which] cannot be doubted." Grossman,

127 N.J. Super. at 30.

The judge determined that the arbitrator reviewed all of the evidence,

including the testimony, and made findings of fact and applied the appropriate

legal standard. She explained that the arbitrator "found that the vast majority of

the Board's allegations were credible, and upheld the Board's tenure charges."

A-1778-17T3 7 As this decision was predicated on the twelve days of hearing and the arbitrator's

extensive credibility findings, findings of fact, and conclusions of law, the

Award was not procured by "undue means" and the judge properly decided not

to vacate the Award.

Moreover, the judge found that plaintiff failed to provide any relevant

evidence to suggest that the arbitrator exceeded or imperfectly executed his

powers, thereby a mutual final and definite award was not made. She said, "the

arbitrator was fully aware of the nature of the case. It is clear that he did not

apply the incorrect legal standard." The judge concluded that, "[t]he arbitrator

considered that . . . [plaintiff] was a school psychologist and that his actions

were unbecoming. He found that by clear and convincing evidence. It's also

clear to the [c]ourt that progressive discipline would not be proper in this case."

As to plaintiff's claim of a lack of substantial credible evidence, he argues

that the arbitrator's conclusory statements show that although the arbitrator

"sustained the charges overall, it is unclear which of the numerous allegations

he was sustaining and what evidence he credited in order to make those

findings." Our Supreme Court has held that where "the arbitration process is

compulsory, the judicial review should extend to consideration of whether the

award is supported by substantial credible evidence present in the record." Div.

A-1778-17T3 8 540, Amalgamated Transit Union v. Mercer Cty. Improv. Auth., 76 N.J. 245,

253-54 (1978) (footnote omitted).

"Under the reasonably debatable standard, a court reviewing [a public-

sector] arbitration award may not substitute its own judgment for that of the

arbitrator, regardless of the court's view of the correctness of the arbitrator's

position." Borough of E. Rutherford, 213 N.J. at 201-02 (alteration in original)

(citations and internal quotation marks omitted).

Our Supreme Court has explained that, "for purposes of judicial review of

labor arbitration awards, public policy sufficient to vacate an award must be

embodied in legislative enactments, administrative regulations, or legal

precedents, rather than based on amorphous considerations of the common

weal." N.J. Tpk. Auth. v. Local 196, I.F.P.T.E., 190 N.J. 283, 295 (2007). The

Court has also stated that:

If the correctness of the award, including its resolution of the public-policy question, is reasonably debatable, judicial intervention is unwarranted. The judiciary's duty to provide an enhanced level of review of such arbitration awards is discharged by a careful scrutiny of the award, in the context of the underlying public policy, to verify that the interests and objectives to be served by the public policy are not frustrated and thwarted by the arbitral award.

[Weiss v. Carpenter, 143 N.J. 420, 443 (1996).]

A-1778-17T3 9 But, "if the arbitrator's resolution of the public-policy question is not reasonably

debatable, and plainly would violate a clear mandate of public policy, a court

must intervene to prevent enforcement of the award." Ibid. "Reflecting the

narrowness of the public policy exception, that standard for vacation will be met

only in 'rare circumstances.'" N.J. Tpk. Auth., 190 N.J. at 294 (quoting Tretina

Printing, Inc., 135 N.J. at 364).

Here, there is sufficient credible evidence in the record by which the

arbitrator could have decided that plaintiff engaged in unbecoming conduct.

Plaintiff's former colleague testified that she had concerns referring future

students to plaintiff due to his inappropriate actions toward students. A Freehold

Regional Education Association (the Association) representative stated that

plaintiff previously "got in her face and seemed very confrontational ." The

Association president had to be called in to meetings because plaintiff's co-

workers were "afraid" of him and "didn't know exactly what he was going to

do." Several of plaintiff's former colleagues contacted the principal with their

concerns regarding plaintiff. Some of plaintiff's former colleagues testified that

he made them feel uncomfortable on different occasions. The Director of

Personnel for the Board testified that she felt that plaintiff's behavior was

"malicious." Plaintiff's former supervisor testified that she feels that plaintiff

A-1778-17T3 10 "is a liar, and . . . an unprofessional staff member as a whole." The guidance

counselor testified that a student confided in her that plaintiff used a derogatory

term to refer to the student's ex-girlfriend and that plaintiff encouraged the

student to "go off to college" and have sex with "[forty] girls." He also allegedly

recommended that the student read a "profanity-filled self-help book." Students

confided in other administrative employees that they no longer felt comfortable

working with plaintiff. Plaintiff sent emails to students calling them "baby," his

"little girl," and allowing them to call him "luv." He received an email from one

student inquiring whether plaintiff wanted the student to "mail or email [him] a

picture." He responded that either would be fine. Plaintiff offered to take

another student out to lunch at the on-campus student culinary restaurant during

the week with his daughters. He also frequently used profanity in email

correspondences with students.

In his discussion and findings, the arbitrator explained his reasoning for

each of the six charges. The arbitrator ended his findings by stating that, "of

particular concern are the repercussions generated by [plaintiff]'s behavior. The

statements and testimony contained in the hearing record show a breakdown in

[plaintiff]'s relationship with colleagues and administrators." He concluded

that, "[i]t is important that the guidance department, teaching staff and

A-1778-17T3 11 administration maintain a cooperative relationship. The hearing record reveals

the relationship between [plaintiff] and others had been damaged." The judge

concluded that the arbitrator found the "vast majority" of the Board's allegations

to be credible. Thus, the Award was based on substantial, credible evidence and

should not be vacated.

Plaintiff claims that the arbitrator's decision not to use progressive

discipline runs counter to the State's public policy. The doctrine of progressive

discipline states that a public employee's past record "may be resorted to for

guidance in determining the appropriate penalty for the current specific

offense." West New York v. Bock, 38 N.J. 500, 523 (1962). Our Supreme Court

has held that, "progressive discipline has been bypassed when an employee

engages in severe misconduct . . . ." In re Herrmann, 192 N.J. 19, 33 (2007).

Although progressive discipline is a recognized and accepted principle . . . that is not to say that incremental discipline is a principle that must be applied in every disciplinary setting. To the contrary, . . . progressive discipline is not a necessary consideration . . . when the misconduct is severe, when it is unbecoming to the employee's position or renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest.

[Ibid.]

A-1778-17T3 12 "[P]rogressive discipline is not a fixed and immutable rule to be followed

without question because some disciplinary infractions are so serious that

removal is appropriate notwithstanding a largely unblemished prior record." In

re Stallworth, 208 N.J. 182, 196 (2011) (citations and internal quotation marks

omitted).

Here, the arbitrator explained that he did not choose to enforce progressive

discipline due to the "irrevocable differences between the administration, staff

members and [plaintiff]. In order to effectively serve the needs of students it is

important the school [g]uidance [d]epartment function free of conflict." Thus,

he found that it would be "inadvisable to reinstate" plaintiff. The judge agreed

that progressive discipline was inappropriate, and cited Grossman, which states

that one must "take into consideration any harm or injurious effect which the

[employee]'s conduct may have had on the maintenance of discipline and the

proper administration of the school system." 127 N.J. Super. at 30. As there

was no obligation for the arbitrator to impose progressive discipline on plaintiff,

his election not to do so does not violate public policy.

Affirmed.

A-1778-17T3 13