Conduct Unbecoming For A Teacher

The New Jersey Supreme Court reversed an arbitrator’s favorable rulings in a matter involving termination of a tenured high school teacher.

Count One

Evidence adduced at the arbitration hearing established that defendant used the devices, sometimes during work hours, on the District computer network to send explicit pictures of himself and to seek similar pictures in return from various women on the internet. On the District-issued devices, defendant saved nude pictures and sexually explicit emails, sent and received by defendant, including negotiations for paid sexual services.

Count Two alleged “inappropriate” behavior toward female staff’

In support of the charges, the Board produced physical evidence taken from defendant’s Board-issued computer and iPad, as well as testimonial evidence that defendant, in the presence of students, propositioned staff members to date him and commented on the physical appearance of female staff. Notably, defendant’s remark about the tight fit of a female teacher’s pants prompted a follow-up question by a student who was present when defendant uttered the remark. Defendant also used a student as his personal courier to deliver flowers and “inappropriate” messages to a colleague he was pursuing.

A  hearing was held

the Board determined by a majority vote that the evidence supported the charges and warranted dismissal. The Commissioner of Education (Commissioner) reviewed the charges and agreed they warranted termination. The charges were then submitted for review by an arbitrator, pursuant to N.J.S.A. 18A:6-16. The arbitrator found that the Board had proven the allegations underlying Count I but dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay.

Before the court

The Board urges this Court to reverse the judgment of the Appellate Division, contending that the arbitrator’s hostile work environment analysis was improper. The Board argues that there is a fundamental difference between charges of “unbecoming conduct” and “sexual harassment” and that the arbitrator improperly conflated the two to require the Board to prove a hostile work environment under Lehmann.

In support of the Board’s position, the amicus Association maintains that the arbitrator lacked the authority to alter or rewrite the charges. The Association contends that the arbitrator should have limited his analysis to a determination of unbecoming conduct. The Association underscores the practical impossibility of trying to prepare and present appropriate evidence if “arbitrators [have] the ability to unilaterally change the charges presented.” Further, the Association asserts that requiring the Board to prove hostile work environment “would be anathema in a school setting.” It argues that schools would have no recourse against isolated but abhorrent incidents that would not rise to the level of a hostile work environment, yet would satisfy the standard of unbecoming conduct.

Held

proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct. A charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals. It focuses on the morale, efficiency, and public perception of an entity, and how those concerns are harmed by allowing teachers to behave inappropriately while holding public employment. The Court has made it clear that the failure of a school board to prove a different offense does not preclude a finding of unbecoming conduct…

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was different context — under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. wholly ill-suited in this context…

The judgment of the Appellate Division reinstating the arbitrator’s award is reversed, and the matter is remanded for arbitration with a new arbitrator to determine whether defendant committed unbecoming conduct, and any appropriate penalty.

The Appellate Division opinion is linked here. (Mike Frisch)