                        NOT FOR PUBLICATION WITHOUT THE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-2196-16T1

FELICIA PUGLIESE,

        Plaintiff-Appellant,

v.

STATE-OPERATED SCHOOL
DISTRICT OF THE CITY OF
NEWARK, ESSEX COUNTY,

     Defendant-Respondent.
____________________________

              Argued February 1, 2018 – Decided August 28, 2018

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              C-000215-16.

              Richard A. Friedman argued the cause for
              appellant (Zazzali, Fagella, Nowak, Kleinbaum
              & Friedman, attorneys; Richard A. Friedman,
              of counsel and on the briefs; Kaitlyn E.
              Dunphy and Marissa A. McAleer, on the briefs).

              Brenda C. Liss argued the cause for respondent
              (Riker Danzig Scherer Hyland & Perretti, LLP,
              attorneys; Brenda C. Liss, of counsel and on
              the brief; Fiona E. Cousland, on the brief).
PER CURIAM

     Plaintiff Felicia Pugliese appeals from the January 13, 2017

Chancery Division order, which confirmed a June 8, 2016 arbitration

award rendered pursuant to the Tenure Employees Hearing Law (TEHL),

N.J.S.A.   18A:6-10   to   -18.1.    The   arbitrator   found   plaintiff

culpable of inefficiency and dismissed her from her position as a

tenured teacher with defendant State-Operated School District of

the City of Newark (District).      We reverse.

                                    I.

     Pugliese was employed by the District from 2004 to 2013.          She

has a Bachelor of Arts degree with a major in sociology and a

Master's Degree as a reading specialist.       In 2006, the Department

of Education issued her a standard certificate stating she met the

requirements to serve as an elementary school teacher.          She also

had an endorsement to teach "Language Arts Literacy (English,

Reading, Language Arts)," and satisfied the "highly qualified"

teacher definition under the No Child Left Behind Act of 2001

(NCLB), 20 U.S.C.A. §§ 6301 to 7941 to teach that subject.             She

taught language arts and reading to small groups of elementary

school students for the 2004-2005 to 2009-2010 school years,

received "proficient" ratings for each school year, and acquired

tenure in this position.



                                    2                             A-2196-16T1
       In the 2010-2011 and 2011-2012 school years, the District

reassigned        Pugliese    to   teach   large     departmentalized       "Social

Studies      (Economics,      History,     Civics,    Geography)"     for     fifth-

through eighth-grade middle school students.                 She had no social

studies      or     middle     school      social      studies      certificates,

endorsements, or authorizations,1 and did not satisfy the "highly

qualified" teacher definition under the NCLB or the New Jersey

High    Objective      Uniform     Standard    of    Evaluation     for     General

Education and Special Education Teachers (HOUSE) to teach social

studies.      As required by the NCLB, the District notified the

parents and guardians of Pugliese's students that she did not meet

the "highly qualified" requirement to teach social studies.                         20

U.S.C.A. § 6312 (e)(1)(B).

       For   the    school    years     2010-2011    and   2011-2012,       Pugliese

received ratings of "basic" and "unsatisfactory," respectively.

The negative issues identified in her evaluations included her

failure      to    design    coherent    instruction,      engage    students       in

learning, and demonstrate knowledge of content and pedagogy.

       On March 26, 2012, the District served Pugliese with a notice

of intent to file tenure charges against her for inefficiency.

The District also served her with a professional improvement plan


1
    See N.J.A.C. 6A:9B-9.3(a)(6) (recodified at N.J.A.C. 6A:9-
9.2(a)(6)).

                                           3                                 A-2196-16T1
(PIP), which allowed her ninety-days to correct and overcome the

inefficiency, as required by the terms of N.J.S.A. 18A:6-11 and

N.J.A.C.       6A:3-5.1(c)(4),       then       in     effect.      The     ninety-day

correction period expired on June 25, 2012.                   Pugliese did not meet

with the principal on March 26, 2012 to discuss the charge and the

PIP because her union representative was not available.                              The

meeting occurred on March 29, 2012.

      Pursuant to the PIP, a master social studies teacher was to

assist Pugliese throughout the ninety-day period.                         However, the

master teacher only assisted Pugliese on three occasions.                            The

District provided no master teacher or other remedial assistance

to   Pugliese     after   May   9,   2012.            Thus,   Pugliese    received    no

assistance from the District for forty-seven of the ninety-day

correction period.

      On July 23, 2012, the District served Pugliese with a post-

improvement period notice, charging her with inefficiency based

on her alleged failure to improve during the ninety-day correction

period.    On September 12, 2012, the District certified the tenure

charge    to    the   Commissioner     of       Education      (Commissioner),       and

suspended Pugliese without pay for 120 days, effective September

12, 2012.

      Prior to the disposition of the tenure charge, in August

2012,    the    Legislature     enacted         the    Teacher   Effectiveness       and

                                            4                                  A-2196-16T1
Accountability for Children of New Jersey Act (TEACHNJ), N.J.S.A.

18A:6-117 to -129.    Although tenure charges are still filed under

the TEHL, TEACHNJ amended the procedural process applicable to

those charges.    Under the amended procedures, if the Commissioner

determined the tenure charge was sufficient to warrant dismissal

or reduction in salary, "he shall refer the case to an arbitrator

pursuant to [N.J.S.A. 18A:6-17.1] for further proceedings[.]"

N.J.S.A. 18A:6-16.

     On September 28, 2012, Pugliese filed an answer and separate

defenses. She asserted her assignment as a departmentalized social

studies teacher was illegal because she was not "highly qualified"

to teach social studies, as required by the NCLB, and the District

could not find her inefficient in a position to which she was

illegally assigned.    She asserted the District failed to afford

her the full ninety-day correction period.        She also asserted the

District did not afford her the opportunity to participate in the

formulation of the PIP or provide reasonable assistance, and the

assistance provided was inadequate, as it was not individualized

or created or provided solely for her benefit.

     On October 1, 2012, the Commissioner determined the tenure

charge was sufficient to warrant dismissal or a reduction in

salary,   and   transferred   the   matter   to   an   arbitrator.        The

arbitrator applied the procedural standard in TEACHNJ to determine

                                    5                                A-2196-16T1
whether the tenure charge demonstrated that Pugliese failed to

perform in a satisfactory manner for two consecutive years.                  See

Pugliese v. State-Operated Sch. Dist. of City of Newark, 440 N.J.

Super. 501, 511-12 (App. Div. 2015).                  This differed from the

procedural standard another arbitrator applied in a companion case

involving a teacher who, like Pugliese, had tenure charges filed

after TEACHNJ was enacted for conduct occurring before then.                 Id.

at 511.    We reversed, determining that "[b]oth arbitrators cannot

be correct in applying different standards to similar procedural

matters."   Id.   at   512.       We   remanded   for   the   Commissioner     to

determine "[w]hich standard is appropriate for teachers whose

tenure charges [were] brought after the passage of TEACHNJ, but

before the TEACHNJ evaluation rubric [was] implemented[.]"                Ibid.

We held "[t]he Commissioner must . . . inform the arbitrator what

legal standard to utilize, after which the arbitrators must review

the facts anew within this legal framework."              Id. at 503.

     We also found that the arbitrator, Commissioner, and trial

court did not resolve Pugliese's legal defenses.                 Id. at 512.

Thus, we directed the Commissioner, on remand, "to explicitly

decide    those   legal   defenses       that   the   Commissioner   does    not

expressly   delegate      to    the    statutorily-mandated    arbitrator      to

decide."    Id. at 503.        The Commissioner subsequently returned the

matter to the same arbitrator with instruction to review the facts

                                         6                              A-2196-16T1
anew under the preponderance of the evidence standard and determine

the validity of Pugliese's legal defenses.

       In a June 8, 2016 arbitration award, the arbitrator determined

the District demonstrated by a preponderance of the evidence that

the tenure charge should be sustained.                    Addressing Pugliese's

legal defenses, the arbitrator found her assignment to teach

departmentalized       social   studies       was   not     illegal    because   the

"highly qualified" requirement of the NCLB only applied to teachers

in a departmental high school setting.

       The arbitrator also found that Pugliese "could properly have

been assigned under her licensure to teach all elementary core

subjects, including social studies, in a non-departmentalized

elementary school setting."             The arbitrator reasoned that the

elementary    school    level      social    studies      curriculum    required    a

teacher to "possess general knowledge of history, government,

sociology, and other related topics sufficient to understand and

implement the curriculum[,]" and as a former sociology major,

Pugliese could grasp and convey the social studies curriculum.

The arbitrator also noted that the NCLB and New Jersey statute

then    in   effect    did   not     expressly      limit    "highly    qualified"

designations for teaching social studies to history or government.

       The   arbitrator      found     that     Pugliese      "was     invited     to

participate in the formulation of her [PIP] or to add input

                                         7                                  A-2196-16T1
concerning the parameters of the PIP, but elected not to avail

herself of this opportunity."          The arbitrator also found the

truncation of the ninety-day correction period by three days was

attributable   to   Pugliese's     refusal    to   meet     with    school

administrators because her union representative was unavailable.

The arbitrator reasoned that while Pugliese was entitled to union

representation, "an employee cannot unilaterally precipitate an

entitlement to an additional year's employment simply by delaying

the meeting at which tenure charges are to be delivered or a PIP

is to commence until fewer than ninety days remain in the school

year." The arbitrator concluded, "if the PIP was properly created,

and if the school administration provided the requisite support

materials, evaluations, feedback, and opportunity for [Pugliese]

to demonstrate improvement, the loss of three days would not

invalidate an otherwise proper PIP interval."      The arbitrator also

determined that the extra three days would not have altered the

outcome   because   Pugliese     did    not   demonstrate    significant

improvement during the eighty-seven day period she was afforded.

     Notably, the arbitrator found that:

          the District failed to provide tailored
          support for [Pugliese] throughout the PIP
          interval, as . . . no [m]aster [t]eacher or
          other supporting expert assisted [Pugliese] in
          improving her classroom performance after mid-
          May of the 2011-12 school year.            The
          evidentiary   record   established   that   no

                                   8                               A-2196-16T1
           remedial help was provided to [Pugliese] after
           May 9, 2012, creating a potentially material
           defect in administering the PIP as required
           under pre-[TEACH]NJ standards.

The   arbitrator     determined    "the      District's     failure    to    provide

substantial     assistance    for     almost         half   the    PIP      interval

constituted a significant defect in the PIP process" and "[t]he

District's failure to provide supervision and supplemental support

after May 9, 2012 potentially eroded the essential purpose of the

PIP."

      Despite   these    findings,       the       arbitrator    determined      "the

District's failure to provide more adequate assistance after May

9, 2012 was not a material defect in the [PIP] invalidating the

tenure charges solely on the basis of diminished [m]aster [t]eacher

interaction     or     insufficient          provision      of    other      support

resources[.]"      He concluded that Pugliese could have demanded more

assistance from the master teacher or other support services after

May 9, 2012, but did not do so.              He also concluded that "absent

any clearly articulated demand for more help from [Pugliese] or

any   noticeable     improvement    in       her    teaching,    the   perfunctory

support afforded to [Pugliese] during the second half of the [PIP]

interval did not invalidate the District's compliance with the PIP

requirements then in effect." The arbitrator held that termination

was the appropriate penalty.


                                         9                                   A-2196-16T1
     Pugliese filed a motion to vacate the arbitration award.                       The

motion judge agreed with the arbitrator's findings on Pugliese's

legal defenses, concluded the arbitrator's decision was based on

substantial credible evidence in the record, and confirmed the

arbitration award.     This appeal followed.

                                    II.

     On   appeal,   Pugliese    contends        the   motion    judge       erred    in

confirming the arbitration award because it was contrary to the

law, and thus, procured by undue means, and against public policy.

She argues the award violated N.J.S.A. 18A:6-11 and N.J.A.C. 6A:3-

5.1(c)(4)    because   she   was   deprived      of   the   entire         ninety-day

correction    period   to    improve      her    performance         and     positive

assistance during that period.         She also argues the District could

not evaluate or terminate her for inefficiency in an assignment

to which she was illegally assigned and for which she was not

"highly qualified" to teach.

     The arbitrator has the sole authority to "hear and make a

final determination on a controversy and dispute arising under

[N.J.S.A.    18A:6-10]."       N.J.S.A.     18A:6-9.           The    arbitrator's

decision is "final and binding and may not be appealable to the

[C]omissioner" but rather, "shall be 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(e).

                                     10                                       A-2196-16T1
      "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)).       "As   the   decision   to   vacate      an

arbitration award is a decision of law, [we] review[] the denial

of a motion to vacate an arbitration award de novo."                   Minkowitz

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

Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).

      The court may vacate an arbitration award "[w]here the award

was procured by corruption, fraud or undue means[.]"                   N.J.S.A.

2A:24-8(a).    "'[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) (first alteration in original) (quoting Office of

Emp. Relations v. Commc'n Workers of Am., 154 N.J. 98, 111-12

(1998)). "[A]n arbitrator's failure to follow the substantive law

may . . . constitute 'undue means' which would require the award

to be vacated."      In re City of Camden, 429 N.J. Super. 309, 332

                                        11                               A-2196-16T1
(App. Div. 2013) (quoting Jersey City Educ. Ass'n, Inc. v. Bd. of

Educ., 218 N.J. Super. 177, 188 (App. Div. 1987)).             However, to

constitute undue means, "[t]he judicial inquiry must consider more

than whether a mere mistake occurred."      Minkowitz, 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)
            (quoting Trentina v. Fitzpatrick & Assocs.,
            135 N.J. 349, 357 (1994)).]

"'[U]ndue 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, AFL-CIO v. Tr. Co. of N.J., 105 N.J.

442, 450 n.1 (1987)).

     In addition, a court may vacate an arbitration award for

public policy reasons.      Borough of E. Rutherford, 213 N.J. at 202.

"However,   '[r]eflecting     the   narrowness    of   the   public    policy

exception, that standard for vacation will be met only in rare

circumstances.'"    Ibid.     (alteration in original) (quoting N.J.

Tpk. Auth. v. Local 196, I.F.T.E., 190 N.J. 283, 294 (2007)).

"Public policy is ascertained by 'reference to the laws and legal

                                    12                                A-2196-16T1
precedents and not from general considerations of supposed public

interests.'"     Id. at 202-03 (quoting Weiss v. Carpenter, Bennett

& Morrissey, 143 N.J. 420, 434-35 (1996)).                      "And, even when the

award implicates a clear mandate of public policy, the deferential

'reasonably     debatable'        standard     still        governs.        Thus,     '[i]f

correctness of the award, including its resolution of the public-

policy question, is reasonably debatable, judicial intervention

is unwarranted.'"         Id. at 203 (alteration in original) (quoting

Weiss,    143   N.J.    at    443).     As     our        Supreme   Court     explained,

"[a]ssuming that the arbitrator's award accurately has identified,

defined, and attempted to vindicate the pertinent public policy,

courts should not disturb the award merely because of disagreements

with     arbitral      fact    findings        or    because        the    arbitrator's

application of the public-policy principles to the underlying

facts is imperfect."           Ibid.    (alteration in original) (quoting

Weiss, 143 N.J. at 443).

                                          A.

       We first address Pugliese's argument that the arbitration

award    violated      N.J.S.A.    18A:6-11         and    N.J.A.C.       6A:3-5.1(c)(4)

because she was deprived of the entire ninety-day correction period

to improve her performance and positive assistance during that

period.



                                        13                                          A-2196-16T1
     Prior     to   its   amendment,    N.J.S.A.   18A:6-11   provided,    in

pertinent part, "that if the [tenure] charge is inefficiency,

prior to making its determination as to certification, the board

shall provide the employee with written notice of the alleged

inefficiency, specifying the nature thereto, and allow at least

[ninety] days in which to correct and overcome to inefficiency."

N.J.A.C. 6A:3-5.1(c)(4) provided:

           Concurrent with notifying the employee of such
           charges of inefficiency, the district board
           of   education    or   the    State   district
           superintendent shall direct that there be a
           modification of the individual professional
           improvement plan mandated by [N.J.A.C.] 6A:32-
           4.3 or 4.4, to assure that such plan addresses
           the specific charges of inefficiency and
           comports with the timelines established for
           correction.

     As we have held, "compliance by the local board with its

obligation to afford the teacher the 90-day correction period

constitutes an absolute prerequisite to its right to certify

charges against the teacher and, consequently, that a failure of

compliance compels dismissal of the charges."            Rowley v. Bd. of

Educ., 205 N.J. Super. 65, 72 (App. Div. 1985).         Moreover, Section

IIB4 of the Guidelines for Implementation of the TEHL, Department

of Education, Division of Controversies and Disputes (May 3, 1977),

"provides that '[d]uring the aforementioned [ninety] day period,

members   of    the   administrative/supervisory      staff   should    make


                                       14                           A-2196-16T1
reasonable efforts to provide assistance to the teaching staff

member to overcome the specific inefficiencies.'"                      Ibid.       The

Commissioner "has consistently construed the statutory mandate in

the light of this guideline, concluding that 'if a board chooses

to file tenure charges of inefficiency against any teacher, the

administration bears the heavy responsibility to render positive

assistance     to   the    teacher    in    an   effort    to      overcome        his

inefficiencies.'"         Ibid. (emphasis added) (citations omitted).

The State Board of Education has stated that:

         under [N.J.S.A.] 18A:6-11, a local board of
         education is duty bound to assist a tenured
         teaching staff member, against whom it has
         filed charges of inefficiency, in improving
         his teaching performance before removing him
         from his teaching position. . . . The
         rationale underlying this rule is that a
         teacher whose teaching effectiveness is called
         into question after years of meritorious
         service in a school district should, in
         recognition of that contribution, be afforded
         an opportunity to demonstrate that he is still
         capable of effective teaching.     He can only
         avail himself of that opportunity if he
         understands   clearly   the   basis   for  the
         criticism supporting the allegations of
         inefficiency and is offered constructive
         advice as to how he might restore his teaching
         skills.

         [Id. at 73.]

Accordingly,    the   failure    to    accord    a   teacher       a    ninety-day

correction   period   and    positive      assistance     during       that    period

compels dismissal of the charges.             Id. at 74; see also In the

                                      15                                      A-2196-16T1
Matter   of   the       Tenure   Hearing    of   Parisi,    EDU    5793-03,      final

decision,     at    9      (Aug.    7,     2008),     http://njlaw.rutgers.edu/

collections/oal/final/edu09654-08_1.pdf.

      Here, Pugliese received notice of the tenure charge and the

PIP on March 26, 2012.           The ninety-day correction period began on

that date, not on March 29, 2012, as she argues.                   See id. at 8-9.

Pugliese's delay in meeting to discuss the tenure charge and PIP

did not extend the ninety-day period, and she cites no authority

to the contrary.         Accordingly, the arbitrator correctly determined

that the truncated ninety-day correction period was no reason to

dismiss the tenure charge.

      Nevertheless,        the     arbitrator       erred   in    determining      the

District's failure to provide Pugliese with positive assistance

throughout the ninety-day correction period was no reason to

dismiss the tenure charge.            As the arbitrator found, the PIP was

not specifically tailored for Pugliese throughout the PIP period,

as   required      by    N.J.A.C.    6A:3-5.1(c)(4),        and    the    only    real

assistance she received was from the master teacher.                     However, the

PIP provided that a master teacher would assist Pugliese throughout

the entire ninety-day PIP period, but a master teacher only

assisted her on three occasions, and assistance ceased on May 9,

2012.    The District provided no remedial assistance to Pugliese

thereafter to help her correct or improve her performance.                       As the

                                         16                                   A-2196-16T1
arbitrator acknowledged, the District's failures "constituted a

significant defect in the PIP process" and "potentially eroded the

essential purpose of the PIP."

       Contrary to the arbitrator's reasoning, it was not Pugliese's

burden to demand continuation of the master teacher or additional

assistance during the correction period.         Nor could the District

unilaterally    decide   to   prematurely     terminate   assistance    for

Pugliese's alleged failure to improve.         The law clearly required

the District to render positive assistance to Pugliese throughout

the entire ninety-day correction period, which it failed to do.

See Rowley, 205 N.J. Super. at 73.

       The District's non-compliance with the law in this case

compelled dismissal of the tenure charge.             Id. at 74.        The

arbitrator's failure to dismiss the tenure charge was contrary to

the law, and thus, the arbitration award was procured by undue

means and must vacated.

                                     B.

       We next address Pugliese's argument that the District could

not evaluate or terminate her for inefficiency in an assignment

to which she was illegally assigned and for which she was not

"highly qualified" to teach.        As a threshold issue, we address the

District's contention that collateral estoppel and the law-of-the-

case    doctrine   bar   Pugliese     from   re-litigating   the   "highly

                                     17                            A-2196-16T1
qualified" issue. Collateral estoppel prevents future litigation

on the issue when:

           (1) the issue to be precluded is identical to
           the issue decided in the prior proceeding; (2)
           the issue was actually litigated in the prior
           proceeding; (3) the court in the prior
           proceeding issued a final judgment on the
           merits; (4) the determination of the issue was
           essential to the prior judgment; and (5) the
           party against whom the doctrine is asserted
           was a party to or in privity with a party to
           the earlier proceeding.

           [Winters v. N. Hudson Reg'l Fire & Rescue, 212
           N.J. 67, 85 (2012) (quoting Olivieri v. Y.M.F.
           Carpet, Inc., 186 N.J. 511, 521 (2006)).]

"Fundamental to the application of estoppel is an assessment of

considerations   such    as   'finality         and   repose;    prevention    of

needless   litigation;   avoidance        of    duplication;      reduction    of

unnecessary   burdens    of   time        and    expenses;      elimination    of

conflicts, confusion and uncertainty; and basic fairness.'"               Ibid.

(quoting Olivieri, 186 N.J. at 522).                  "In short, collateral

estoppel will not apply if a party did not have a 'full and fair

opportunity to litigate the issue.'" State v. K.P.S., 221 N.J.

266, 278 (2015) (quoting Zirger v. Gen. Accident Ins. Co., 144

N.J. 327, 338 (1996)).

     "The law-of-the-case doctrine 'is a non-binding rule intended

to prevent relitigation of a previously resolved issue' in the

same case."   Id. at 276 (quoting Lombardi v. Masso, 207 N.J. 517,


                                     18                                 A-2196-16T1
538 (2011)).   "The law of the case doctrine teaches us that a

legal decision made in a particular matter 'should be respected

by all other lower or equal courts during the pendency of that

case.'"   Lombardi, 207 N.J. at 538 (quoting Lanzet v. Greenberg,

126 N.J. 168, 192 (1991)).      "A hallmark of the law of the case

doctrine is its discretionary nature, calling upon the deciding

judge to balance the value of judicial deference for the rulings

of a coordinate judge against those 'factors that bear on the

pursuit of justice and, particularly, the search for truth.'"          Id.

at 538-39 (quoting Hart v. City of Jersey City, 308 N.J. Super.

487, 498 (App. Div. 1998)).      "Importantly, the law of the case

doctrine is only triggered when one court is faced with a ruling

on the merits by a different and co-equal court on an identical

issue."   Id. at 539.

     In Pugliese, 440 N.J. Super. at 503, we found the arbitrator,

Commissioner, and trial court did not resolve Pugliese's legal

defenses, and reversed the first arbitration award and remanded

for a review of the facts anew and a determination of the validity

of Pugliese's legal defenses.     Accordingly, because the issue of

Pugliese's   legal   defenses   was   not   resolved   in   the     prior

proceedings, the doctrine of collateral estoppel and the law-of-

the-case doctrine do not apply in this case.       That having being

said, we address Pugliese's argument.

                                 19                               A-2196-16T1
       The NCLB

            reflects Congress' judgment that the best way
            to raise the level of education nationwide is
            by   granting  state   and   local   officials
            flexibility   to    develop   and    implement
            educational programs that address local needs,
            while holding them accountable for the
            results.   NCLB implements this approach by
            requiring States receiving federal funds to
            define performance standards and to make
            regular assessments of progress toward the
            attainment of those standards.

            [Horne v. Flores, 557 U.S. 433, 461 (2009)
            (citing 20 U.S.C.A. § 6311(b)(2)).]

See also Pugliese, 440 N.J. Super. at 507.          The NCLB requires that

"each State educational agency receiving assistance . . . shall

develop a plan to ensure that all teachers teaching in core

academic subjects . . . are highly qualified not later than the

end of the 2005-2006 school year."           20 U.S.C.A. § 6319(a)(2).        To

satisfy the NCLB's definition of "highly qualified" a teacher must

have   a   Bachelor's    degree,   a    valid   state     certification,    and

demonstrate    content    expertise     in   the   core    academic   subjects

taught.    20 U.S.C.A. § 7801(23)(c).

       The NCLB defines "core academic subjects" as "[e]nglish,

reading or language arts, mathematics, science, foreign languages,

civics and government, economics, arts, history, and geography."

20 U.S.C.A. § 7801(11) (emphasis added).           While social studies is

not specifically defined as a core academic subject, social studies


                                       20                              A-2196-16T1
includes civics, government, economics, history, and geography,

see N.J.A.C. 6A:9B-9.3(a)(6)(ii), which are core academic subjects

required to be taught by "highly qualified" teachers under the

NCLB.

     Contrary    to    the    arbitrator's     finding,         Pugliese    did    not

satisfy the "highly qualified" definition under the NCLB to teach

social studies.       The record is de void of evidence that she had a

valid state certification, endorsement, or authorization to teach

social   studies,     or   content    expertise       in   civics,      government,

economics,    history,     and    geography.      Although        she    majored    in

sociology,    sociology       does   not    include    these      "core     academic

subjects."      See Merriam-Webster's Collegiate Dictionary, 1115

(10th ed. 1993) (defining sociology as "the science of society,

social institutions, and social relationships; specifically: the

systematic study of the development, structure, interaction, and

collective    behavior       of   organized    groups      of    human     beings").

Accordingly, the arbitrator's finding that Pugliese was highly

qualified to teach social studies based on her major in sociology

was a blatant misapplication of the "highly qualified" standard

not supported by Pugliese's certification or endorsement.                      Thus,

she was not "highly qualified" under the NCLB to teach social

studies and the District should not have placed her in that

assignment.

                                       21                                    A-2196-16T1
     Pugliese was also not qualified to teach departmentalized

middle school social studies under New Jersey law.     Prior to the

enactment of TEACHNJ, N.J.A.C. 6A:9B-9.1(a)(3) provided that:

            Teachers with elementary school endorsements
            that are valid in grades nursery through eight
            issued no later than March 1, 2008, may teach
            in grades nursery through eight in any
            employing school district.     These teachers
            must demonstrate to the school district that
            they have content knowledge appropriate to the
            subject(s) taught.

            [(Emphasis added).]

     Pugliese had an elementary school teacher certificate, which

did not authorize her to teach social studies to middle school

students.   She had no endorsement or authorization to teach middle

school social studies.2    See N.J.A.C. 6A:9B-9.3(a)(6) (recodified

at N.J.A.C. 6A:9-9.2).

     Further, in order to teach in this position, she had to

demonstrate she had "content knowledge" in social studies.          To

demonstrate "content knowledge," she had to meet the criteria

under HOUSE, by passing the appropriate Praxis II Middle Content

Test, have an undergraduate major in the content, thirty credits

in the content, a graduate degree in the content, or a national

board certification in the content.      See Carol Albrition, Rani



2
   Pugliese did not even qualify for a social studies or middle
school social studies endorsement. See N.J.A.C. 6A:9B-9.1(a).

                                  22                         A-2196-16T1
Singh & Kerri Long, Teacher Quality And School Improvement: A

Primer for Certification and Highly Qualified, N.J. Dep't of Educ.,

http://www.state.nj.us/education/title1/archive/hqs/nclb/pp.pdf.

She met none of these requirements.      She, thus, was not qualified

to teach middle school social studies under New Jersey law.

     Because Pugliese was not certified, authorized, qualified,

or "highly qualified" to teach middle school social studies, and

had no content knowledge in social studies, her assignment to that

position was contrary to the law.     As a matter of law, the District

could not evaluate and terminate her for inefficiency in this

position.

     Having   reached   this   conclusion,    we   need   not   address

Pugliese's remaining contentions that the judge applied the wrong

test in reviewing the arbitration award, and the penalty of

termination violated the doctrine of progressive discipline.

     The January 13, 2017 Chancery Division order is reversed, and

the June 8, 2016 arbitration award is vacated.




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