Timothy Capone v. Montague Township Board of Education

• Court: New Jersey Superior Court Appellate Division
• Decided: November 26, 2025
• Docket: A-3406-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3406-23

TIMOTHY CAPONE,

Plaintiff-Appellant,

v.

MONTAGUE TOWNSHIP BOARD OF EDUCATION,

Defendant-Respondent. _________________________

Argued November 13, 2025 – Decided November 26, 2025

Before Judges Mawla, Marczyk, and Bishop- Thompson.

On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C- 000010-24.

Laura M. LoGiudice argued the cause for appellant (Green Savits, LLC, attorneys; Laura M. LoGiudice and Glen D. Savits, on the briefs).

Mary Anne Groh argued the cause for respondent (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Mary Anne Groh, on the brief). PER CURIAM

Plaintiff Timothy Capone appeals from a May 31, 2024 order denying his

motion to vacate an arbitration award entered in favor of defendant Montague

Township Board of Education, terminating plaintiff as chief school

administrator (CSA). We affirm.

The parties are familiar with the facts, which we need not repeat in detail

here. To summarize, defendant placed plaintiff on leave due to allegations he:

engaged in retaliation, intimidation, and discrimination against his staff;

pressured staff to support his agenda before the Board; and attempted to interfere

in the Board's election. Prior to filing tenure charges, defendant's counsel

conducted an extensive investigation, and concluded plaintiff failed to perform

his duties as CSA. Defendant filed a detailed, seven-count, 147-paragraph,

statement of tenure charges seeking plaintiff's termination. Three of the seven

counts alleged conduct unbecoming, and the remaining four counts were for

neglect of duty.

The conduct unbecoming charges asserted plaintiff: mistreated staff he

did not like by refusing to speak or interact with those members who did not

support him, and engaged in verbally and emotionally demeaning conduct

toward specific staff members (count one, specifications 29iii and iv); called a

A-3406-23 2 staff member derogatory names and made inappropriate comments about the

member's sexual orientation (count one, specification 30); directed staff not to

nominate certain students for leadership positions in a district program and told

staff to withhold an athletic consent form to cause a student to miss a portion of

the athletic program, because he did not like the student's parents (count four,

specifications 85-87); used his supervisory authority to direct staff to participate

in Board meetings to coerce the Board into taking action, which would

personally benefit him and retaliated against staff who did not comply (count

six, specifications 120-21, 123-26); and enlisted staff to create social media

accounts to attack his opponents on the Board, engaged in electioneering to run

candidates for the Board, and contacted voters to vote for certain candidates

(count six, specifications 126-31).

The arbitrator conducted a ten-day hearing. Defendant presented

testimony from ten witnesses, including nine teachers and one Board member.

Plaintiff and five witnesses testified on his behalf, including the former Board

president, a former Board member, the school social worker, the facilities

manager, and the school psychologist.

The arbitrator issued a forty-six-page written opinion, which analyzed and

discussed the evidence, including witness credibility. She noted her findings

A-3406-23 3 were confined to the allegations contained in the sworn tenure charges. This

was because some witnesses testified to conduct outside the tenure charges. The

arbitrator considered this testimony only for purposes of assessing credibility.

She found insufficient evidence to support the neglect of duty charges but upheld

the specifications of the conduct unbecoming charges.

The arbitrator concluded there was just cause for plaintiff's termination

because his conduct was not characterized by isolated moments of poor

judgment but "willful actions that destroyed the trust and respect necessary for

continued employment." Plaintiff did not "merely make a stray comment about

a parent to a teacher[,] . . . he directed an inexperienced teacher to thwart student

engagement in enrichment activities, based on his personal dislike of the

parents." This negatively impacted the student and sent the wrong message to

the teacher under his supervision.

Similarly, plaintiff's instruction to teachers regarding the "[B]oard

elections was not an inadvertent lapse of judgement. He attempted to have the

teachers create a Facebook page under a false name for his political purpos es"

by "creat[ing] an atmosphere of fear of retaliation" for non-complying staff.

The arbitrator concluded the proven instances of misconduct "warrant[ed]

termination, even without prior discipline or documented poor performance."

A-3406-23 4 This was because plaintiff's role as the CSA was "not subject to daily oversight.

He must be entrusted to lead with the trust and respect of the school community."

Therefore, "corrective action would be futile and inappropriate" because of

plaintiff's "actions[] and . . . failure to demonstrate any reflection or remorse."

Plaintiff filed an order to show cause to vacate the arbitration award on

grounds the arbitrator exceeded her powers, and the award was procured by

undue means. He claimed she exceeded her powers by dismissing plaintiff in

violation of his contract, which required he receive notice and an opportunity to

cure his performance issues. Plaintiff alleged he was denied due process

because several allegations against him were raised for the first time during

arbitration and were not set forth in the tenure charges. He claimed those

charges, as well as the sworn tenure charges, were belatedly raised and barred

by laches because after placing him on leave, the Board took fifteen months to

formulate the charges and two years to present evidence against him. He further

asserted the arbitrator erred when she did not adjudicate plaintiff's motion to

dismiss the charges.

Plaintiff also argued the arbitrator erred because she did not consider

certain factors to find just cause for his termination and did not apply the so-

A-3406-23 5 called Fulcomer1 factors prior to ordering his removal. He asserted his

termination was not proportionate to his infraction because the circumstances

showed defendant's investigation was biased and conducted unfairly. Plaintiff

had a proven record of service, no prior disciplinary record, and there was no

evidence his misconduct affected the school. Therefore, the arbitrator's findings

about his lack of remorse and the futility of corrective action were unsupported

by the facts and law.

Plaintiff's basis for seeking to vacate the award on undue means grounds

was the arbitrator's decision was not supported by substantial credible evidence.

He claimed she provided minimal reasons to support her findings and relied on

inconsistent witness testimony.

The trial judge considered plaintiff's motion and subsequently issued a

written opinion. After observing the narrow scope of review of an arbitration

ruling, the judge addressed each of plaintiff's arguments.

The judge rejected plaintiff's claim he was entitled to notice and the ability

to respond to the decision to place him on leave because his employment

contract did not provide for such a process. Rather, the contract required notice

1 In re Tenure Hearing of Fulcomer, 93 N.J. Super. 404 (App. Div. 1967). A-3406-23 6 and an opportunity to respond when the Board had discussions relating to

plaintiff's annual evaluation, not in the instance of tenure charges.

Regarding the tenure charges, the judge found no due process violation

because plaintiff received notice of the charges and had ample opportunity to

defend against them. Plaintiff presented his own evidence and arguments to the

arbitrator and continued to receive his salary and benefits while on leave.

The judge rejected plaintiff's arguments related to just cause and

proportionality of the punishment. He concluded plaintiff did not identify "an

apparent mistake of fact or law that warrant[ed] vacating the decision. . . . [T]he

[a]rbitrator carefully explained the basis for her decisions, based on substantial

evidence," and parsed what was and was not, conduct unbecoming. And the

arbitrator explained she did not consider charges not found in the sworn tenure

charges.

I.

Plaintiff reprises his arguments on appeal. Briefly stated, the applicable

principles guiding our review are well established. The New Jersey Arbitration

Act, N.J.S.A. 2A:23B-1 to -36, enumerates several narrow grounds for a court

to set aside an arbitration award.

A-3406-23 7 Arbitration awards must be set aside when "procured by . . . undue means."

N.J.S.A. 2A:24-8(a). "Undue means" includes an arbitrator's "mistake of fact or

an inadvertent mistake of law that is either apparent on the face of the record or

admitted to by the arbitrator." Hillsdale PBA Loc. 207 v. Borough of Hillsdale,

263 N.J. Super. 163, 181 (App. Div. 1993) (citing Held v. Comfort Bus Line,

Inc., 136 N.J.L. 640, 641-42 (Sup. Ct. 1948)), aff'd in part, rev'd in part, 137

N.J. 71 (1994). A court must also vacate an award "[w]here the arbitrator[]

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(d).

As the trial judge recognized, the court's authority to set aside an

arbitration award is not to be exercised lightly. Indeed, to promote a sense of

finality and ensure judicial efficiency, there is "a strong preference for judicial

confirmation of arbitration awards." Middletown Twp. PBA Loc. 124 v. Twp.

of Middletown, 193 N.J. 1, 10-11 (2007) (quoting N.J. Tpk. Auth. v. Loc. 196,

190 N.J. 283, 292 (2007)).

We review a trial judge's decision on a motion to vacate an arbitration

award de novo. Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301,

A-3406-23 8 316 (2019). Having done so, we affirm for the reasons expressed by the trial

judge and add the following comments.

Plaintiff's claims regarding: the timing of the tenure charges, whether it

hampered the defense or was barred by laches; how the arbitrator conducted the

hearing; her refusal to adjudicate the motion to dismiss; and the scope of the

evidence she considered, lack merit. "An arbitrator may conduct an arbitration

in such manner as the arbitrator considers appropriate for a fair and expeditious

disposition of the proceeding." N.J.S.A. 2A:23B-15(a). Accordingly, like any

factfinder, an arbitrator may "determine the admissibility, relevance,

materiality, and weight of any evidence." Ibid. As the judge noted, regarding

the arbitration of tenure charges, "the . . . [B]oard . . . shall provide all evidence

. . . to the employee or the employee's representative. The . . . [B]oard . . . 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).

Our review of the record does not reveal any violation of these statutory

precepts. Plaintiff had ample notice of the charges against him and mounted a

vigorous defense. The arbitrator not only properly exercised her powers to

conduct a fair hearing, but when it came to consideration of additional facts

adduced at the hearing, she abided by N.J.S.A. 18A:6-17.1(b)(3).

A-3406-23 9 Additionally, we reject plaintiff's argument his termination was

unwarranted or disproportionate under the facts, and the arbitrator made a

mistake of law by not considering the just cause and Fulcomer factors.

Arbitrators have "broad discretion" to "fashion an appropriate remedy when

imposing a penalty for tenure charges." Sanjuan v. Sch. Dist. of W. N.Y., 256

N.J. 369, 383 (2024).

"During the term of any employment contract with the [B]oard, a [CSA]

shall not be dismissed or reduced in compensation except for . . . conduct

unbecoming . . . ." N.J.S.A. 18A:17-20.2. "Unbecoming conduct . . . has been

defined as conduct 'which has a tendency to destroy public respect for

[government] employees and confidence in the operation of [public] services.'"

In re Tenure Hearing of Young, 202 N.J. 50, 66 (2010) (alterations in original)

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

We have upheld the dismissal of a CSA for conduct unbecoming. In re

Tenure Hearing of Vitacco, 347 N.J. Super. 337, 344-45 (App. Div. 2002). In

Vitacco, the district certified tenure charges against its CSA after he pled guilty

under a federal indictment to filing false tax returns for not reporting funds

embezzled from the district. Id. at 339-40. On appeal, we upheld the

termination because his misconduct "clearly violated his position of public

A-3406-23 10 trust." Id. at 343. We rejected the argument that discipline less than dismissal

was warranted because a CSA has "a duty to set an example and to conduct

[themselves] in accordance with the highest standards." Id. at 344.

Pursuant to these principles, we discern no error in the arbitrator's decision

to terminate plaintiff. Viewed in any light, plaintiff's conduct clearly tended to

destroy public respect for government employees and confidence in the

operation of public services. His conduct certainly was not in accord with the

highest standards for his position of public trust.

Finally, we are unconvinced the result would be different applying either

the just cause or Fulcomer factors. Citing a New Jersey School Board

Association article 2 and other non-precedential sources, plaintiff claims the just

cause factors require consideration of the following:

1. Did the employer give the employee [fair] forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct?

2. Did the employer's rule or order reasonably relate to the orderly, efficient, and safe operation of the business?

2 N.J. Sch. Bds. Ass'n, The Meaning of Just Cause, at 1W06-2W06 (Apr. 2016), https://www.njsba.org/wp- content/uploads/2016/04/negotiations_advisor_justcause.pdf. A-3406-23 11 3. Did the employer, before administering discipline to an employee, try to discover whether the employee did in fact violate or disobey a rule or order of management.

4. Was the employer's investigation conducted fairly and objectively?

5. During the investigation, did the [factfinder] obtain substantial evidence or proof that the employee was guilty as charged?

6. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline administered by the employer in a particular case reasonably related to a) the seriousness of the employee's proven offense and b) the record of the employee in his service with the employer?

Pursuant to Fulcomer, plaintiff argues the arbitrator should have

considered: whether his actions were premeditated, cruel or vicious, or done

with intent to punish; the nature and gravity of the offenses under all the

circumstances involved; his record and ability; his disciplinary record and the

harm or injury his conduct had on the maintenance of discipline and the proper

administration of the school system; and the impact of the penalty on his

teaching career.

N.J.S.A. 18A:17-20.2 does not predicate a finding of conduct unbecoming

or the ability to terminate on application of the just cause or Fulcomer factors.

A-3406-23 12 Even if the law required such consideration, we are unconvinced the application

of either rubric would save plaintiff from termination based on the facts of his

case.

The remaining arguments raised on appeal lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3406-23 13