                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2198-14T1




BOUND BROOK BOARD OF
EDUCATION,                               APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                  October 29, 2015

v.                                         APPELLATE DIVISION


GLENN CIRIPOMPA,

     Defendant-Appellant.
__________________________

         Argued April 27, 2015 – Decided October 29, 2015

         Before    Judges    Sabatino,     Simonelli      and
         Gilson.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Somerset County,
         Docket No. C-12067-14.

         Arnold M. Mellk argued the cause                 for
         appellant (Mellk O'Neill, attorneys;             Mr.
         Mellk, of counsel; Gidian R. Mellk               and
         Edward A. Cridge, on the briefs).

         Robert J. Merryman argued the cause for
         respondent (Apruzzese, McDermott, Mastro &
         Murphy, P.C., attorneys; Mr. Merryman, on
         the brief).
      The opinion of the court was delivered by

SIMONELLI, J.A.D.

      This appeal concerns a teacher-tenure arbitration conducted

pursuant to Tenure Employees Hearing Law (TEHL), N.J.S.A. 18A:6-

10 to -18.1.      Appellant Glenn Ciripompa is a tenured high school

math teacher in the Bound Brook School District (District) who

faced dismissal based on two charges of unbecoming conduct.                            The

first charge involved his improper use of a District-provided

laptop and iPad to send and receive numerous sexually explicit

emails   and    nude       photographs    of   women    and   himself           via    the

Internet in violation of the District's computer and Internet-

use   policy.        The   second    charge    involved    his    unprofessional,

inappropriate        and   potentially     harassing      conduct       toward        four

female   staff       members.       The   arbitrator      determined        that       the

District proved the first charge but not the second charge.                            The

arbitrator     modified      the    penalty    from   dismissal        to   a   120-day

suspension without pay.

      The Bound Brook Board of Education (Board) then filed an

action   in    the    Chancery     Division    challenging       the    arbitrator's

award.   In a January 8, 2015 order, the court vacated the award

and remanded for a new arbitration hearing before a different

arbitrator.      We reverse the vacatur of the arbitration award and

reinstate the award.            We also reject Ciripompa's argument that




                                          2                                     A-2198-14T1
the    court   lacked    authority     to    order    a   rehearing         before    a

different      arbitrator     beyond   forty-five         days      of    the    first

arbitration hearing date.

       We begin with a brief review of the relevant authority.

Under   the    TEHL,    no   tenured   teacher       shall     be    dismissed     for

unbecoming conduct without a hearing after written charges have

been certified against the teacher.                  N.J.S.A. 18A:6-10.            Any

charge made against a tenured teacher must be filed in writing

with the secretary of the employing board of education, and a

written statement of evidence under oath to support such charge

must be presented to the board.              N.J.S.A. 18A:6-11.            The board

must    provide   the    teacher   with      a   copy     of   the       charges   and

statement of evidence and afford the teacher an opportunity to

submit a written statement.          Ibid.

       The board must then determine by a majority vote of its

full membership whether there is probable cause to credit the

evidence in support of the charge and whether such charge, if

credited, is sufficient to warrant a dismissal.                      Ibid.      If the

board so determines, it must notify the teacher and forward the

written charge to the Commissioner of Education (Commissioner)

for a hearing pursuant to N.J.S.A. 18A:6-16, together with a

certification of such determination.             Ibid.




                                       3                                     A-2198-14T1
       If the Commissioner determines the charge is sufficient to

warrant dismissal, he shall refer the case to an arbitrator

pursuant to N.J.S.A. 18A:6-17.1 for a hearing.                               N.J.S.A. 18A:6-

16.    Upon referral, the board must provide all evidence on which

it    intends      to    rely      at   the        arbitration       hearing      and   will   be

precluded from presenting any additional evidence, except for

purposes      of        impeachment           of        witnesses.          N.J.S.A.      18A:6-

17.1(b)(3).         The teacher must provide all evidence on which he

or she intends to rely at least ten days prior to the hearing

and will be precluded from presenting any additional evidence,

except for purposes of impeachment of witnesses.                             Ibid.

       The arbitration hearing must be held within forty-five days

of    the   assignment        of    the       arbitrator       to    the    case.       N.J.S.A.

18A:6-17.1(b)(1).             The arbitrator must render a written decision

within forty-five days of the first hearing date.                                       N.J.S.A.

18A:6-17.1(d).            All      of   the        timelines       set    forth   in    N.J.S.A.

18A:6-17.1      "shall        be    strictly            followed[.]"        N.J.S.A.      18A:6-

17.1(f).

       The arbitration is conducted under the labor arbitration

rules of the American Arbitration Association (AAA).                                    N.J.S.A.

18A:6-17.1(c).             Under        AAA     Labor       Arbitration        Rule     27,    the

arbitrator      is      not     bound     by       the     rules     of    evidence     and    may

determine the admissibility, relevance, and materiality of the




                                                    4                                   A-2198-14T1
evidence offered and exclude evidence deemed to be cumulative or

irrelevant.      However, the arbitrator must consider evidence that

is pertinent and material to the controversy.                  Manchester Twp.

Bd. of Educ. v. Thomas P. Carney, Inc., 199 N.J. Super. 266, 274

(App. Div. 1985).

       The arbitrator's determination is final and binding, is not

appealable to the Commissioner or State Board of Education, but

is   subject    to   judicial   review      and    enforcement     pursuant        to

N.J.S.A. 2A:24-7 to -10.            N.J.S.A. 18A:6-17.1(e).         It is well-

settled that "[a]rbitration awards are favored by the courts and

are generally presumed to be valid."               Local No. 153, Office &

Prof'l Emps. Int'l. Union, AFL-CIO v. The Trust Co. of N.J., 105

N.J.   442,    448   (1987).        Accordingly,    judicial      review     of   an

arbitration     award   is   very    limited.      Linden   Bd.    of   Educ.     v.

Linden Educ. Ass'n, 202 N.J. 268, 276 (2010).                     The court may

vacate an arbitration award in the following instances:

              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;



                                        5                                  A-2198-14T1
             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.]

"Additionally, 'a court may vacate an award if it is contrary to

existing law or public policy.'"              Borough of East Rutherford v.

East Rutherford PBA Local 275, 213 N.J. 190, 202 (2013) (quoting

Middletown Twp. PBA Local 124 v. Twp. of Middletown, 193 N.J. 1,

11    (2007)).        "However,    '[r]eflecting     the    narrowness     of    the

public policy exception, that standard for vacation will be met

only in rare circumstances.'"             Ibid. (quoting N.J. Tpk. Auth.,

supra, 190 N.J. at 294).

       In   reviewing     an   arbitration      award,     the   court   may     not

substitute its own judgment for that of the arbitrator.                     Id. at

201; Linden Bd. of Educ., supra, 202 N.J. at 277.                        When the

arbitration      is   compelled     by   statute,   "judicial     review    should

extend to consideration of whether the award is supported by

substantial       credible        evidence     present     in     the    record."

Amalgamated Transit Union v. Mercer City Improvement Auth., 76

N.J. 245, 254 (1978).

       In this case, the court vacated the arbitration award as

procured by undue means pursuant to N.J.S.A. 2A:24-8(a) based on

the    arbitrator's      alleged     erroneous      evidentiary    rulings       and

dismissal of the second charge.               We review the court's decision



                                          6                                A-2198-14T1
on a motion to vacate an arbitration award de novo.                                 Minkowitz

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

    The following facts are germane to our review.                              The matter

began   when     the    District's       superintendent           received      a    copy    of

"Twitter" posts, which stated that a Bound Brook High School

teacher,    identified          as      "Mr.       C.,"     was     transmitting          nude

photographs of himself via the Internet.                          The "Twitter" posts

prompted the superintendent to search the electronic system with

respect to Ciripompa.            The search revealed that Ciripompa used

his District-provided laptop and iPad, sometimes during working

hours and on District property, to send and receive numerous

sexually    explicit         emails     and    nude       photographs      of   women       and

himself.    None of those emails was exchanged with or shown to

students    or       school     staff.         Separately,         the    superintendent

learned of Ciripompa's inappropriate and potentially sexually

harassing conduct toward four female staff members in the high

school.

    In     July      2014,     the    Board        instituted     the     two   previously

mentioned      tenure         charges     against          Ciripompa,       seeking         his

dismissal      for     unbecoming       conduct.           The    Board    certified        the

charges, suspended Ciripompa, and forwarded the charges to the

Commissioner.          On July 23, 2014, the Commissioner referred the

charges for arbitration.




                                               7                                     A-2198-14T1
       On August 8, 2014, a month before the scheduled arbitration

hearing, the Board submitted the "Twitter" posts for admission

during the arbitration hearing.                    The arbitrator excluded this

evidence      as     untimely    under       N.J.S.A.      18A:6-17.1(b)(3),       but

permitted the Board to reference that this evidence prompted the

District's investigation of Ciripompa, and to use this evidence

in rebuttal.         In his written arbitration award the arbitrator

acknowledged that the content of the "Twitter" posts indicating

that a Bound Brook high school teacher was sending nude photos

of himself "was 100% accurate."

       Ciripompa did not dispute the two tenure charges or any of

the    evidence      the    Board   presented          supporting     the    charges.

Instead, over the Board's objection, he presented the testimony

of    an    expert   psychiatrist       in       mitigation.    The    psychiatrist

opined that Ciripompa presented no sexual or other threat to his

students or members of the school community, he never engaged in

any aberrant sexual activity, and he demonstrated poor judgment

in using school equipment to pursue his own personal activities.

The expert expressed his belief that Ciripompa understood his

lapse in judgment and was completely aware of the implications

of    his    actions,      and   that    once       this   matter    was    resolved,

Ciripompa would not engage in similar conduct.                      The expert also




                                             8                               A-2198-14T1
believed that suspension and possible dismissal appeared to be

an excessive response to Ciripompa's actions.

       In his written award, the arbitrator concluded the Board

proved the first tenure charge.                   However, the arbitrator found

that:    the     inappropriate        communications           involved       consenting

adults, not students or staff members; all of the inappropriate

communications, except four, were not sent or received during

work     hours    or     on     District         property;      none    of    the     four

inappropriate      communications           caused      any    harm     apart      from    a

violation of the District's computer and Internet-use policy;

and there was no evidence that any students saw or could have

seen the inappropriate communications.

       The arbitrator also concluded the Board did not prove the

second    tenure       charge.       Although       the     arbitrator       found    that

Ciripompa's        conduct         toward        female       coworkers      was      both

inappropriate      and     violated        the    District's      sexual     harassment

policy, he concluded the Board failed to establish the conduct

created a hostile work environment under the standards set forth

in Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993), a case

on which both parties relied.               The arbitrator found the evidence

was     insufficient       to      prove     that       Ciripompa's       conduct         was

sufficiently      severe      or   pervasive       to     alter   the   conditions        of

employment of the four female staff members and create a hostile




                                             9                                  A-2198-14T1
working     environment.                  The    arbitrator            emphasized     that    the

subjective feelings of the female staff workers and Ciripompa's

violation       of    the      District's            sexual      harassment      policy      were

insufficient         to     establish           hostile         work      environment     sexual

harassment.          Accordingly, the arbitrator dismissed the second

tenure charge with prejudice.

    The arbitrator then considered the penalty for the first

charge.         The       arbitrator            noted       that       Ciripompa's      "conduct

cumulatively         amounted             to    a        shocking        abdication     of    his

professional responsibility raising bad judgment to an art form"

and that Ciripompa "expressed no remorse for his actions[.]"

However,     based        on    the        totality        of    the      circumstances,      the

arbitrator determined that Ciripompa could be returned to the

classroom without harm or an injurious effect on the proper

administration         of      the    District.            Applying       the   principles     of

progressive discipline, the arbitrator found that Ciripompa had

no prior disciplinary infractions, was "by all indications a

satisfactory teacher[,]" and had no prior warning about misuse

of the computer system.                   The arbitrator also mentioned, but did

not rely on, the testimony of Ciripompa's expert that Ciripompa

understood      his       lapse      in    judgment,        was     extremely    unlikely      to

engage     in        similar         behavior,            and      had     no   evidence       of

psychopathology.




                                                    10                                  A-2198-14T1
      The arbitrator concluded that the Board failed to justify

Ciripompa's dismissal from his tenured position, the totality of

the circumstances militated against such a result, and there was

no   authority    supporting        the     penalty    of     dismissal     under   the

circumstances       of   this       case.        Accordingly,       the     arbitrator

modified    the   penalty    from      dismissal       to   a    120-day    suspension

without pay.

      The   Board    filed      a   complaint     in    the      Chancery   Division,

seeking an order vacating the arbitration award.                            The Board

argued, in relevant part, that the award was procured by undue

means   under     N.J.S.A.      2A:24-8(a)        based     on    the     arbitrator's

mistakes of fact and law in changing the nature of and standard

of proof for the second tenure charge, excluding the "Twitter"

posts, and admitting Ciripompa's expert evidence.

      In a January 8, 2015 order and written opinion, the trial

judge vacated the arbitration award pursuant to N.J.S.A. 2A:24-

8(a) and ordered a new hearing before a different arbitrator.

The judge found that the "Twitter" posts were pertinent and

material to the controversy and that the arbitrator erred in

excluding them from evidence.                 The judge also found that the

arbitrator      erroneously         admitted     and    relied      on     Ciripompa's

expert, who rendered a net opinion; changed the nature of the




                                            11                                A-2198-14T1
second tenure charge; and applied the wrong standard of proof to

the second charge.

      On appeal, Ciripompa does not challenge the arbitrator's

findings on the two tenure charges or the modified penalty.

Instead,   he    contends   that   the   judge   erred   in   vacating        the

arbitrator's award or, alternatively, lacked authority to remand

for a new hearing before a different arbitrator.                While we do

not   condone    Ciripompa's   conduct,    the   question     before     us   is

whether the arbitration award was procured by 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."

Office of Emp. Relations. v. Commc'ns Workers of Am., 154 N.J.

98, 111 (1998).       However, to constitute undue means,               "[t]he

judicial inquiry must consider more than whether a mere mistake

occurred."      Minkowitz, supra, 433 N.J. Super. at 150.              Rather,

the

           formulation requires that the arbitrator[]
           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.

           [Id. at 150-51 (alteration in original)
           (citation  and internal  quotation marks
           omitted).]



                                    12                                 A-2198-14T1
"'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 of Prof'l Emps. Int'l Union, AFL-CIO, supra, 105 N.J. at

450 n. 1.

      We discern no mistake of fact or law or mistake that is

apparent on the face of the record regarding the arbitrator's

exclusion    of   the   "Twitter"   posts.         Although     the   arbitrator

excluded the actual posts from evidence, he permitted the Board

to    reference     that    the     posts      prompted        the    District's

investigation of Ciripompa and to use the posts in rebuttal.

Ciripompa did not contest that the Board learned of his conduct

as a result of the posts, and a review of the content of the

posts does not demonstrate that             they would have changed the

outcome of the arbitration.            The posts merely stated that a

Bound Brook High School teacher, identified as "Mr. C.," was

transmitting nude photographs of himself via the Internet, and

the arbitrator found that this statement was "100% accurate."

Accordingly,      because   this    evidence       was   not    pertinent     and

material     to   the   controversy,      there    was    no    error   in    its

exclusion.

      Even if the "Twitter" posts were pertinent and material to

the   controversy,      their   exclusion    was    harmless.         Under   the




                                     13                                 A-2198-14T1
harmless   error      doctrine,     "[a]ny      error    or    omission    shall     be

disregarded . . . unless it is of such a nature as to have been

clearly capable of producing an unjust result[.]"                         R. 2:10-2.

Because the arbitrator found in the Board's favor on the first

tenure charge, the exclusion of the "Twitter" posts did not

produce an unjust result.

      There was no mistake of fact or law or mistake that is

apparent on the face of the record regarding admission of the

expert evidence.       The arbitration was governed by the AAA labor

arbitration rules, not the rules of evidence.                        Under AAA Labor

Arbitration     Rule    27,   the    arbitrator         had    the    discretion      to

determine the admissibility, relevance, and materiality of the

evidence   offered.       The     admission      of     this    evidence      did   not

warrant vacatur of the arbitration award.

      Nor was there a mistake of fact or law or mistake that is

apparent on the face of the record regarding the arbitrator's

application of the hostile work environment standard in Lehmann.

Lehmann has been applied in teacher-tenure unbecoming conduct

cases grounded on sexual harassment.                    For example, in In re

Tenure Hearing of Paul Ash, 96 N.J.A.R.2d 442 (Dep't of Educ.),

the   teacher   was    charged      with    "conduct      unbecoming      a   tenured

teacher, specifically . . . sexual harassment of a coworker[.]"

Ibid.      In    evaluating         the     merits      of     this    charge,      the




                                           14                                 A-2198-14T1
Administrative Law Judge (ALJ) relied on Lehmann and concluded

that   the    charge   was    supported         because      the     teacher's         conduct

created a hostile work environment.                Ibid.

       Similarly, in In re Tenure Hearing of Wayne Slaughter, EDU

6140-01,       initial       decision           (May         21,         2002),        http://

lawlibrary.rutgers.edu/oal/search.html>.,                          the      teacher          was

charged with "conduct unbecoming a teaching staff member where

he made comments of a sexual nature to students."                                      The ALJ

relied on Lehmann to ascertain whether the teacher's conduct met

the definition of sexual harassment.                        Id. at 27-28.              The ALJ

then sustained the tenure charge after concluding the teacher's

"words, actions and conduct were so severe or pervasive to cause

[a student] to believe that the school setting was a hostile or

abusive environment."           Id. at 28.       Thus, it is clear that when a

teacher was found to have engaged in sexual harassment under the

Lehmann      test,   this    was    sufficient         to    sustain       an     unbecoming

conduct    charge.       See,      e.g.,   In    re    Tenure       Hearing       of    Robert

Mantone, 93 N.J.A.R.2d 322 (Dep't of Educ.).

       Although the second tenure charge against Ciripompa did not

specifically     state      the    words   "sexual          harassment,"        it     alleged

that    Ciripompa      acted       inappropriately            toward        female        staff

members.      Thus, it is clear from the nature of the allegation

that sexual harassment was the basis for the charge.                                 Notably,




                                           15                                          A-2198-14T1
to    prove   that    charge,         the     Board    relied     on      Lehmann   and       the

District's     sexual       harassment           policy,    which    was    admitted       into

evidence.       The    policy         is    couched    in    Lehmann       language      ––    it

defines sexual harassment in terms of "conduct [that] is severe

and pervasive and has the purpose or effect of unreasonably

altering or interfering with work performance or creating an

intimidating, hostile, or offensive working environment[.]"                                   See

Lehmann, supra, 132 N.J. at 603-04.                        We are satisfied that the

arbitrator properly applied the Lehmann standard of proof to the

second charge.          The arbitrator also made meticulous findings

with respect to the lack of proof for that charge, which the

record amply supports.

       Finally, we reject Ciripompa's contention that the court

may   only    remand    for       a    new       arbitration    pursuant      to    N.J.S.A.

2A:24-8 when an award is vacated within the time period required

for    the    award    to    be       made.        Ciripompa      argues     that     because

N.J.S.A. 18A:6-17.1(d) required the award in this case to be

made within forty-five days of the first hearing date, or by

October 20, 2014, the judge could not order a rehearing beyond

that date.

       Ciripompa      misreads         the       applicable       statutes.         N.J.S.A.

18A:6-17.1(b)(1)        requires           the    arbitration      hearing     to   be     held

within    forty-five        days       of     assignment     of     the    matter     to      the




                                                 16                                   A-2198-14T1
arbitrator.        N.J.S.A. 18A:6-17.1(d) requires the arbitrator to

render an award within forty-five days of the first hearing

date.     These timelines do not apply to the court's review of an

arbitration award.         Once the award has been made, any party may

pursue an appeal in accordance with N.J.S.A. 2A:24-7 to -10.

N.J.S.A. 2A:24-8 provides that "[w]hen an award is vacated and

the time within which the agreement required the award to be

made has not expired, the court may, in its discretion, direct a

rehearing by the arbitrators."         Here, there was no "time [limit]

within    which    the   agreement   required   the   award    to    be     made,"

because the arbitration was conducted pursuant to statute, not

an agreement between the parties.

      In addition, Ciripompa's interpretation of N.J.S.A. 2A:24-8

is inconsistent with the procedures outlined in N.J.S.A. 18A:6-

17.1.     Specifically, after the arbitration award is rendered,

the parties are thereafter entitled to judicial review of the

award and enforcement as provided by N.J.S.A 2A:24-7 to -10.

N.J.S.A. 18A:6-17.1(e).          Ciripompa essentially argues that if

judicial review occurs more than forty-five days after the first

hearing    date,    which   it   virtually   always   will,    the    court       is

powerless to remand the matter if it finds a ground to vacate

the     award.      This    interpretation   completely       undermines        the

purpose of affording judicial review of arbitration awards in




                                      17                                  A-2198-14T1
teacher-tenure cases, and is contrary to authority granting the

court the discretion to remand for an arbitration hearing before

a different arbitrator.           See In re City of Camden, 429 N.J.

Super. 309, 337-38 (App. Div.), certif. denied, 215 N.J. 485

(2013)   (permitting   a     remand    to   a    different   arbitrator      "when

deficiencies in the arbitrator's process call into question the

arbitrator's    ability      to   have      an   open     mind   regarding      the

disposition"); see also Fox v. Morris Cnty. Policemen's Ass'n,

P.B.A.   151,   266   N.J.    Super.     501,    520-21    (App.   Div.    1993),

certif. denied, 137 N.J. 311 (1994) (holding that upon vacating

an arbitration award, the court has the discretion to remand to

the same arbitrator or different arbitrator); Manchester Twp.

Bd. of Educ., supra, 199 N.J. Super. at 281 (same).

    The order vacating the arbitration award is reversed, and

the award is reinstated.




                                       18                                 A-2198-14T1
