NOT FOR PUBLICATION WITHOUT THE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-5433-15T4
MICHAEL LEFKOWITZ,
Plaintiff-Respondent,
v.
THE STATE-OPERATED SCHOOL
DISTRICT OF THE CITY OF CAMDEN,
CAMDEN COUNTY, NEW JERSEY,
Defendant-Appellant.
____________________________________________________
Argued November 14, 2017 – Decided November 29, 2017
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
1231-16.
Daniel A. Schlein argued the cause for
appellant (Adams Gutierrez & Lattiboudere,
LLC, attorneys; Perry L. Lattiboudere, of
counsel; Mr. Lattiboudere and Adam S. Herman,
on the briefs).
Cosmas P. Diamantis argued the cause for
respondent (Zeller & Wieliczko, LLP,
attorneys; Matthew B. Wieliczko and Mr.
Diamantis, on the brief).
PER CURIAM
The order appealed arises from tenure charges concerning the
employment of plaintiff Michael Lefkowitz with the defendant
school district. We are chiefly asked to consider the school
district's contention that the trial judge erred in confirming an
arbitrator's decision to temporarily restore plaintiff, as
required by N.J.S.A. 18A:6-14, to the payroll pending a final
ruling – favorable to the school district – on the tenure charges.
Specifically, the school district argues that the arbitrator did
not fairly or fully consider its opposition to plaintiff's emergent
motion for interim relief.
Our description of the proceedings focuses on those
circumstances relevant to the interim award. The record on appeal
reveals that the school district filed and served the tenure
charges in question on October 1, 2015, and suspended plaintiff
without pay, effective October 28, 2015, as permitted by N.J.S.A.
18A:6-14. On November 6, 2015, plaintiff moved for a summary
decision; the Commission referred the charges and the summary-
decision motion, pursuant to N.J.S.A. 18A:6-16, to an arbitrator
for disposition. Opposition to the motion was filed in December,
and the arbitrator denied the motion on January 9, 2016. After
conferring with counsel, the arbitrator scheduled a hearing that
was conducted on February 11, 16, 22, 25, and 26, 2016.
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On February 22, 2016, during the course of the hearing, the
arbitrator heard the parties' arguments about plaintiff's
statutory entitlement to reinstatement to the payroll pending
disposition of the charges due to the passage of 120 days from the
charges without a decision.1 The school district's attorney argued
at that time that such interim relief could only be considered by
the Commissioner; plaintiff's counsel argued the arbitrator had
jurisdiction over the question just as he had been given
jurisdiction over the entire dispute. The arbitrator soundly
concluded that he should not assume he possessed jurisdiction and
that the best course would be for someone to seek clarification
from the Commissioner. The arbitrator also stated that if it was
determined the issue had already been or would be delegated to
him, he would "certainly rule on it ASAP."
During the proceedings before the arbitrator on February 25,
2016, the parties again briefly argued the merits of plaintiff's
statutory entitlement to reinstatement on the payroll. At that
time, the school district argued that plaintiff's motion for a
1
N.J.S.A. 18A:6-14 permits the suspension of "the person against
whom such charge is made, with or without pay, but, if the
determination of the charge . . . is not made within 120 calendar
days after certification of the charges, excluding all delays
which are granted at the request of such person, then the full
salary (except for said 120 days) of such person shall be paid
beginning on the one hundred twenty-first day until such
determination is made."
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summary decision caused a delay in the proceedings that somehow
precluded any statutory obligation to reinstate plaintiff on the
payroll and that it would be entitled to a set off for any
unemployment benefits plaintiff had received.
On March 9, 2016, plaintiff moved on an emergent basis before
the Commissioner for reinstatement to the payroll. The Director
of the Bureau of Controversies and Disputes advised on March 21,
2016, that the arbitrator "clearly has jurisdiction over the case,
including any motions filed with him." On that same day, the
arbitrator advised the parties of the Director's resolution of the
jurisdictional dispute.
Three days later, the arbitrator granted the motion even
though the school district had not submitted formal opposition.
The school district forwarded its opposition later that day, and
the arbitrator quickly acknowledged he had reviewed it and
"reiterate[d] [his] earlier decision that [plaintiff] shall be
reinstated to the [school district's] payroll retroactive to
February 2016."
The following month, the arbitrator issued a final
arbitration award that sustained the tenure charges. The school
district, however, continued to withhold plaintiff's pay and
salary despite the arbitrator's March 24, 2016 order.
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Consequently, plaintiff filed a verified complaint in the Law
Division and obtained an order requiring the school district to
show cause why the arbitrator's interim award should not be
confirmed and enforced. The school district opposed the
application.
For reasons expressed in his June 30, 2016 oral decision,
Judge Robert G. Millenky granted plaintiff's application and
directed the school district to pay plaintiff's salary for the
approximate two-month period in question – February 25, 2016 to
April 27, 2016. When the school district failed to comply,
plaintiff again moved for enforcement and, on August 23, 2016,
Judge Millenky again granted relief. The judge also denied the
school district's motion for a stay, as did we after the school
district commenced this appeal.
In appealing, the school district argues the trial judge
erred in confirming the arbitrator's interim award by failing to
recognize that: (1) the arbitrator "exceeded his statutory
authority" in deciding whether plaintiff was entitled to
reinstatement; (2) the arbitrator "erroneously failed to consider
the [school district's] arguments and evidence"; and (3) plaintiff
was not entitled to reinstatement because he had "contributed to
delays in the arbitration proceedings." We find insufficient merit
in the first and third arguments to warrant discussion in a written
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opinion. R. 2:11-3(e)(1)(E). We add only, as to the first, that
the record demonstrates the Commissioner expressly delegated the
authority to rule on the interim application. And, as to the third,
there is nothing in the record to suggest plaintiff did anything
to delay the arbitration proceedings within the meaning of N.J.S.A.
18A:6-14. In short, there is no doubt plaintiff was entitled to
reinstatement.
The only question remaining is whether the arbitrator gave
short shrift to the school district's opposition to plaintiff's
interim application. To be sure, as the record demonstrates, the
arbitrator initially ruled without the benefit of the school
district's opposition and later – approximately nine minutes after
receiving the opposition – the arbitrator reiterated his earlier
ruling. The emails that confirmed these events reveal that on
March 24, 2016, the arbitrator:
ruled on the application at 3:56 p.m.;
received the opposition at 4:48 p.m.; and
reiterated his ruling at 4:57 p.m.
This timeline naturally gives pause and generates a colorable
concern over whether the school district's opposition was fairly
considered by the arbitrator.
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But, as Judge Millenky observed in his oral decision, an
arbitrator familiar with the facts and circumstances, as was the
case here, and familiar as well with the applicable legal and
equitable standards as we should assume, would have required little
time with the school district's papers to form a conclusion about
whether his initial determination to grant relief was or was not
appropriate. The opposing brief itself is only thirteen pages long
and there was nothing relevant in those pages that the arbitrator
hadn't already considered. For example, the opposing brief's first
five and one-half pages address the school district's meritless
argument that the arbitrator lacked jurisdiction – meritless
because, by that time, the Commissioner had expressly delegated
the motion to the arbitrator – as well as a recitation of the
matter's procedural history and a summary of the facts relevant
to the tenure charges, all no doubt well known to the arbitrator.
The next nearly three pages addressed the legal and equitable
grounds for granting or denying interim relief; here, the school
district recognized that, by statute, plaintiff was entitled to
reinstatement but pressed its contention that equitable or policy
grounds suggested a different outcome. The brief's remainder
addressed the school district's unfounded contention that
plaintiff had delayed the proceedings, that an interim award would
contravene public policy when, in fact, the applicable statute
7 A-5433-15T4
embodies the relevant public policy, and that the school district's
reiteration of its right to a set off of any unemployment benefits
received by plaintiff during the time frame lacked relevance absent
issuance of the very interim award sought. In addition, these
issues had all been recognized and discussed at earlier stages of
the arbitration. Consequently, despite the demonstrably short
period of time that the arbitrator had in hand the school
district's written opposition before reiterating his grant of the
interim award, it is clear to us, as it was to Judge Millenky when
he confirmed the interim award, that the arbitrator was already
familiar with and had considered all the concepts briefed by the
school district.
We agree with Judge Millenky who, having similarly analyzed
the issues, concluded that a sufficient review of the opposition
"was something that . . . could be accomplished promptly and
efficiently" because the school district's arguments "incorporated
[matters] that the arbitrator had already thought about and had
already evaluated" when he initially ruled.
Affirmed.
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