LEONARD YARBOROUGH VS. STATE OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY (L-5629-16, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1343-16T4

LEONARD YARBOROUGH,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. June 8, 2018

APPELLATE DIVISION
STATE OPERATED SCHOOL DISTRICT
OF THE CITY OF NEWARK, ESSEX
COUNTY,

Defendant-Respondent.
_____________________________

Argued February 27, 2018 – Decided June 8, 2018

Before Judges Fisher, Sumners1 and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-5629-16.

Charles I. Auffant argued the cause for
appellant (Stuart Ball, LLC, attorneys;
Charles I. Auffant, on the brief).

Ramon E. Rivera argued the cause for
respondent (Scarinci & Hollenbeck, LLC,
attorneys; Ramon E. Rivera, of counsel;
Shana T. Don, on the brief).

The opinion of the court was delivered by

MOYNIHAN, J.S.C. (temporarily assigned).

1
Judge Sumners did not participate in oral argument but has,
with the consent of counsel, been added to the panel deciding
this matter.
 Leonard Yarborough, a third-grade teacher for the State

Operated School District of the City of Newark, Essex County

(District), appeals from the trial court's order denying his

motion to vacate, effectively confirming that portion of an

arbitration award and decision imposing a 120-day suspension

without pay after the arbitrator found Yarborough culpable of a

conduct-unbecoming tenure charge for inflicting corporal

punishment on two students in contravention of N.J.S.A. 18A:6-1.

Yarborough contends the trial court erred in failing to

vacate the arbitration award because the court: misinterpreted

the entire controversy doctrine (ECD) which should have

precluded the District from prosecuting the tenure charge;

failed to consider "fundamental legal principles" such as the

doctrines of industrial double jeopardy, estoppel, laches,

waiver and unclean hands; and failed to find the arbitration

award was procured by undue means, N.J.S.A. 2A:24-8, because,

"[e]ven if the charge of conduct unbecoming was properly before

the [a]rbitrator, the [a]ward is not supported by a

preponderance of the evidence standard."

We are not persuaded that the ECD precludes the prosecution

of the conduct-unbecoming charge; nor are we persuaded that the

arbitrator's award was procured by undue means and affirm.

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 "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 award confirmation, we owe no special

deference to the trial court'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 trial court's decision on a motion

to vacate an arbitration award de novo. Minkowitz v. Israeli,

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

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

award was procured by . . . 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) (alteration in original) (quoting Office of Emp.

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

perceive neither a mistake of law nor a mistake of fact in the

record.

We turn first to the issue of whether the ECD precludes the

District from bringing the conduct-unbecoming charge. The ECD

is equitably rooted; its applicability is left to judicial

discretion based on the particular circumstances in a given

case. Mystic Isle Dev. Corp. v. Perskie & Nehmad, PC, 142 N.J.

310, 322-23 (1995); DiTrolio v. Antiles, 142 N.J. 253, 275

(1995). In Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App.

Div. 1960) (citations omitted), we held:

It is well settled that discretion means
legal discretion, in the exercise of which
the trial judge must take account of the law
applicable to the particular circumstances
of the case and be governed accordingly. . .
. [I]f the trial judge misconceives the
applicable law, or misapplies it to the
factual complex, in total effect the
exercise of the legal discretion lacks a
foundation and becomes an arbitrary act,
however conscientious may have been the
judge in the performance of it. When this
occurs it is the duty of the reviewing court
to adjudicate the controversy in the light
of the applicable law in order that a
manifest denial of justice be avoided.

As he did before the arbitrator and the trial court,

Yarborough contends the District's conduct-unbecoming charge is

precluded under the ECD because the precipitating events – the

corporal punishment of the students on October 21, 2013 and

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February 28, 2014 — predated prior tenure actions instituted

against him on October 9, 2014 and January 26, 2015, during

which the present charge should have been brought. We reject

Yarborough's proposed application of the ECD as overextended.

We previously synopsized the recognized rationale for the

ECD:

Our Supreme Court has stated that the [ECD]
"seeks to further the judicial goals of
fairness and efficiency by requiring,
whenever possible, 'that the adjudication of
a legal controversy should occur in one
litigation in only one court.'" Circle
Chevrolet Co. v. Giordano, Halleran &
Ciesla, PC, 142 N.J. 280, 289 (1995)
(quoting Cogdell v. Hosp. Ctr. at Orange,
116 N.J. 7, 15 (1989)). The objectives
behind the doctrine were outlined in
DiTrolio, 142 N.J. at 267[,] as follows:
"(1) the need for complete and final
disposition through the avoidance of
piecemeal decisions; (2) fairness to parties
to the action and those with a material
interest in the action; and (3) efficiency
and the avoidance of waste and the reduction
of delay."

[Hynes v. Clarke, 297 N.J. Super. 44, 55
(App. Div. 1997).]

Yarborough seeks to relate our holding that "under the

proper circumstances the [ECD] is correctly applied to

arbitration proceedings," Shoremount v. APS Corp., 368 N.J.

Super. 252, 255 (App. Div. 2004), but fails to relate our

tempering language that the ECD should not be "imported

wholesale into [those] proceedings," id. at 256. We previously

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noted that arbitration – with its ordinarily narrow-framed

issues — "does not provide a forum conducive to extensive issue

. . . joinder." Jersey City Police Officers Benevolent Ass'n v.

City of Jersey City, 257 N.J. Super. 6, 14 (App. Div. 1992).

Especially with regard to limited-issue arbitration, we warned

"[t]he preclusionary consequences of the [ECD] must consequently

be cautiously applied to litigation involving" those

arbitrations. Id. at 14-15.

The prior tenure arbitrations against Yarborough were based

solely on his alleged inefficiency. The arbitrator found the

inefficiency charges brought in the January 26, 2015 matter made

the same factual allegations as those stated
in the original charges [filed on October 9,
2014]. It was specifically alleged that
Yarborough demonstrated an inability to
completely and responsibly execute his
duties as a teacher and enumerated failures
to implement curricular goals and
objectives, design coherent instruction,
access student learning, create an
environment of respect and rapport, manage
student behavior, etcetera. It was further
alleged that [Yarborough] received an
Ineffective rating for the 2012-2013 school
year in an Annual Summative Evaluation and
received a Partially Effective rating for
the 2013-2014 school year in an [A]nnual
Summative Evaluation.

The limited scope of both arbitrations militates against

application of the ECD.

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 We note the Legislature provided special procedures for the

arbitration of inefficiency charges under N.J.S.A. 18A:6-117 to

-129 — the Teacher Effectiveness and Accountability for the

Children of New Jersey (TEACHNJ) Act. N.J.S.A. 18A:6-17.1 to -

17.3. The provisions include a limited scope of issue-review,

N.J.S.A. 18A:6-17.2(a), (b) and (c); a specified burden of proof

imposed on a board of education, N.J.S.A. 18A:6-17.2(d); and a

specified time frame for hearing and rendering a written

decision, N.J.S.A. 18A:6-17.2(e). Given the strictures imposed

on inefficiency arbitrations, we conclude such proceedings are

not conducive to the inclusion of other charges, including

conduct unbecoming.

Further, we perceive little or no transactional nexus

between inefficiency charges and conduct-unbecoming charges

based on the infliction of corporal punishment that would

warrant application of the ECD. See Alpha Beauty Distribs.,

Inc. v. Winn-Dixie Stores, Inc., 425 N.J. Super. 94, 104 (App.

Div. 2012) ("In determining what constitutes a single

controversy, courts 'look at the core set of facts that provides

the link between distinct claims against the same or different

parties.'" (quoting Hobart Bros. Co. v. Nat'l Union Fire Ins.

Co., 354 N.J. Super. 229, 244 (App. Div. 2002))). The former

generally involve the assessment of teaching evaluations, see

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N.J.S.A. 18A:6-17.2(a)(1) to (2), -17.2(b), -17.3; the latter,

evidence of physical force or punishment, except when

statutorily justified, N.J.S.A. 18A:6-1.

We previously observed the ECD was "intended to compel the

adjudication of all components of a legal controversy in a

single litigation as a matter of fairness to the parties and

protection of the judicial system from unnecessary waste,

inefficiency, and delay." Jersey City Police Officers

Benevolent Ass'n, 257 N.J. Super. at 13. We do not see the

inefficiency claim and the conduct-unbecoming claim as being

part of the same controversy. Nor, in light of their discrete

factual bases and the separate procedural rules for inefficiency

matters, do we see that separate proceedings caused waste,

inefficiency or delay.

Our decision renders it unnecessary to address the merits

of the rulings by both the trial court and the arbitrator that

the ECD was inapplicable because the prior tenure hearings were

not fully arbitrated. The October 9, 2014 matter was dismissed

on Yarborough's motion after the arbitrator determined the

District — as had been previously determined in prior

arbitrations in which the District made the same allegations —

could not use 2012-2013 evaluations to prove teacher

inefficiency under the TEACHNJ Act. The arbitrator dismissed

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the January 26, 2015 charges, invoking the ECD in determining it

would be "a denial of fundamental fairness to force [Yarborough]

to defend . . . an action regarding the identical facts [as in

the October 9, 2014 matter] which would deny him of his position

a second time." While the ECD's "application requires, as a

matter of first principle, that the party whose claim is being

sought to be barred must have had a fair and reasonable

opportunity to have fully litigated that claim in the original

action," Cafferata v. Peyser, 251 N.J. Super. 256, 261 (App.

Div. 1991), we do not know if the arbitrator would have

dismissed a conduct-unbecoming charge if it had been included in

either of the prior arbitrations. Our ruling that it need not

have been included obviates our contemplation.

We conclude the rejection of Yarborough's ECD argument was

not a mistake of law or an abuse of discretion. We briefly note

Yarborough's conflation of the ECD and res judicata, and

determine any argument based on res judicata to be without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). No issue of fact was ever before an

adjudicator; no issue of fact was litigated; and no issue of

fact was ever found.

We also find meritless Yarborough's argument that the award

was procured by undue means because the evidence did not prove

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the conduct-unbecoming charge by a preponderance of the

evidence. As Judge Thomas R. Vena noted in his written

decision, the arbitrator's comprehensive findings of fact,

crediting the testimony of the school principal as to both

incidents of corporal punishment, well supported the conduct-

unbecoming charge. The keen assessment of law and fact set

forth by Judge Vena in his opinion lead us to conclude that the

arbitrator's findings were supported by a preponderance of the

evidence; we cannot improve on his analysis.

Plaintiff never raised the preclusive effects of the

doctrines of industrial double jeopardy, estoppel, laches,

waiver and unclean hands prior to this appeal. We will not

address them here. Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973).

Affirmed.

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