(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: WELCOME COUNSEL,
BE SEED EVERYONE. I HAD THE N Y E A GOING BEFORE THE NEW YERS PRINCIPALS AN
SUPERVISORSES ASSOCIATION, WOULD YOU PERFORM A DIFFERENT ORDER SPEAKER SPEAKER THAT'S
FINE JUSTICE. CHIEF JUSTICE RABNER: OKAY, MR. TAYLOR, PLEASE.
LESTER E. TAYLOR, III: THANK YOU, AGAIN, CHIEF ZUS STIS AND MAY IT PLEASE THE COURT.
I AM HERE TODAY INTERESTINGLY ENOUGH TO ARGUE A CASE BEFORE THIS ESTEEMED BODY,
IN NEW JERSEY SUPREME COURT FOR A MATTER THAT I ESSENTIALLY LOST AT THE ASH TRAESHGS LEVEL
ARBITRATION LEVEL AN WE LOST IT FROM THE STAND POINT OF THE TENURE CHARGES SOUGHT MS.
SANJUAN'S REMOVAL FROM HER POSITION ASPIRIN AND FROM THE WEST NEW YORK SCHOOL DISTRICT.
ESSENTIALLY, SHE WAS REMOVED FROM ONE POSITION, BUT REINSTATED OR ALLOWED
TO KEEP HER TEACHING POSITION FOR WHICH SHE ALSO HAD SEPARATELY EARNED TENURE MANY.
WE SAW HER IMMEDIATE DISMISSAL. IT IS IMPORTANT TO NOTE FOR BACKGROUND PURPOSES
THAT MS. SANJUAN WAS A 23 YEAR EMPLOYEE OF THE WEST NEW YORK SCHOOL DISTRICT, APPROXIMATELY
19 OF THOSE YEARS SHE SERVED AS A TEACHER IN THE SCHOOL DISTRICT. SHE WAS THEN PROMOTED
AS, TO ASSISTANT (AND SHE SERVED IN THAT POSITION FROM 2016 TO' 23. NOW,
IN EDUCATION LAW POSITIONS ARE SEPARATELY TENURE ABDOMINAL. FROM A CERTAIN KAL POEPT
YOU HAVE TEACHERS, YOU CAN BE TENURED AN A VICE PRINCIPAL, AS AN ASSISTANT PRINCIPAL,
AS A BUSINESS ADD MEN TRAITOR, ETC. AS YOU MOVE UP THE LADDER AFTER YOU
ACQUIRE TENURE YOU CAN ACQUIRE WHAT IS CALLED PROMOTIONAL TENURE SO MS. SANJUAN HAD TEN
IR IN TWO SEPARATE POSITIONS AN TWO SEPARATE TITLES. IT IS ALSO IMPORTANT
TO NOTE THAT THE ARBITRATION AWARD WAS AFFIRMED OR CONFIRMED BY THE TRIAL DIVISION.
AFTER IT WAS CHALLENGED BY MR. FWOELD. THE MATTER WAS APPEALED AND THE APPELLATE
DIVISION OVER TURNED THE ARBITRATION AWARD ESSENTIALLY SAYING THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY DEMOTING MS. SANJUAN. IT ALSO WAS VERY TROUBLING
BECAUSE ON REMAND THE APPELLATE DIVISION LIMIT THE ARBITRATOR'S POWER, ROLE IN RESPONSE
TO STATUTE IN RECONSIDERING THE PENALTY AND LIMITED THE ARBITRATOR TO A MERE
CONSIDERATION OF WHAT IF ANY ADDITIONAL SUSPENSION AN OR REDUCTION IN COMPENSATION, RATHER
THAN ALLOWING THE ARBITRATOR TO CONSIDER EVERYTHING SO WE ARE HERE ARGUING TWO FACTS
OR TWO ISSUES, ONE THAT THE ARBITRATION AWARD WAS VALID ON ITS FACE AN THE ARBITRATOR DID
NOT EXCEED ITS AND IF THE T MATTER SHOULD BE REMANDED AND THE ARBITRATOR LEFT TO HIS
DEVICES PURNLT TO THE STATUTE. IT'S IMPORTANT TO NOTE THAT THE APPELLATE COURT,
THE ARBITRATOR WAS, QUOTE, MISTAKEN, UNQUOTE, INSOFAR AS THE MOTION WAS A RECOMMEND MED
TEE AND THAT'S AT PAGE 12 SECTION B OF THE APPELLATE DIVISION DECISION AND SO AGAIN I
AM GOING TO GO COME BACK TO THAT IN A LITTLE WHILE BUT THE WORDS WAS MISTAKEN WERE RELIED
UPON BY THE APPELLATE DIVISION AT PAGE 12 SECTION B. NOW, AGAIN, WE'RE ALL
HERE ACKNOWLEDGE THAT THIS IS AN ISSUE OF FERS IMPRESSION THAT WAS ALSO NOTED APTLY BY
THE APPELLATE DIVISION, NAMELY WHETHER THE ARBITRATOR HAS THE AUTHORITY TO DISMISS OR
RATHER REDUCE AN EMPLOYEE AND DEMOTE THEM ESSENTIALLY PURSUANT TO 18 A 6-16. NOW, IT'S
IMPORTANT TO NOTE THAT UNDER OUR SYSTEM OF JUSTICE WHEN IT COMES TO ARBITRATION, THERE
ARE ESSENTIALLY FOUR FWROUNDZ UPON WHICH A COURT MAY VACATE AN ARBITRATORS'S DECISION PURPT
TO LAW. I WOULD SUBMIT AN I THINK WE CAN AGREE THAT SECTIONS A, B AND C DO NOT APPLY
HERE, THERE WAS NO CORRUPTION, FRAUD, EVIDENCE OF I'M PARNLT OR MISCONDUCT. THE
QUESTION IS WHETHER THE ARBITRATOR EXCEEDED AND/OR SO IMPERFECTLY EXECUTED HIS POWER THAT
A MUTUAL, FINAL AND DEFINITE AWARD ON THE SUBJECT AWARD WAS NOT MADE. IT IS
RESPECTFULLY SUBMITTED THAT THE WORD MISTAKE THAT WAS RELIED UPON BY THE APPELLATE DIVISION
IS NOT IN N.J.S.A. 2 A:24-8. THE ARBITRATOR'S AWARD WAS MUTUAL, ARBITRATOR'S AWARD WAS
FEENL AND WAS DEFINITE UPON THE SUBJECT MATTER PRESENTED TO HIM WHICH WAS WHETHER THE
EMPLOYEE SHOULD BE REMOVED FROM HER POSITION. SHE WAS REMOVED FROM HER VICE
PRINCIPAL POSITION. SHE JUST SO HAPPENED TO HAVE TENURE, 16 YEARS OF IT, AS A TEACHER
TO WHICH THE ARBITRATOR REMOVED HER OR STATED DIFFERENTLY DEMOTED HER TO THAT POSITION.
SO, AT BEST, AGAIN, THE AWARD WAS FEENL, MUTUAL AN DEFINITE. AT WORST, IT
WAS REASONABLY DEBATABLE. IS IT DEBATABLE WHETHER REMOVAL MEANS REMOVAL FROM THE ENTIRE
DISTRICT. IN THIS CANCEL CULTURE WE'RE IN TUESDAY THE REMOVAL MEAN YOU'RE OUT OR THAT
WE HAVE OPTIONS THAT ARE QUITE FRANKLY MORE HUMAN AN EMPATHIC AN MORE REASONABLE BASED
UPON THE FACTS AN THE TON TEXT OF A CASE IN EACH INDIVIDUAL SCENARIO. SO,
AGAIN, THE APPELLATE DIVISION, RESPECTFULLY OTHER THAN RELYING UPON AN REFERRING TO DI
CTIONARY DEFINITIONS DID NOT RELY UPON ANY BINDING PAST PRESIDENT. AND ADMITTEDLY THERE IS
NONE, THERE IS SOME SOME THAT IS PERSUASIVE AN INSTRUCTIVE AND THAT IS REASONABLE AND
MREK ABDOMINAL BUT THERE WAS NO PAGS PRECEDENT OR BINDING PRECEDENT OTHER THAN DICTIONARY
DEFINITIONS AN ARGUABLE INTERPRETATIONS OF PLAIN READING OF THE STATUTE SAYING THAT AN
ARBITRATOR CANNOT DEMOTE SOMEONE, BUT AGAIN THE STATUTE DOESN'T SAY THEY CAN'T DEMOTE
SOMEONE SO TO THE EXTENT THE ARBITRATOR RELIED UPON THE LACK OF LANGUAGE SAYING HE COULDN'T
DO IT, A STATUTE DOESN'T HAVE TO SAY WHAT HE CAN DO. WE WILL COME BACK TO
THAT IN A MOMENT, AS WELL. YOUR HONORS, THE PRESENT MATTER IS AN ISSUE OF
FIRST IMPRESSION, THE ARBITRATOR'S EXERCISE OF HIS AUTHORITY IN FASHIONING A REMEDY WAS
CONSISTENT WITH APPLICABLE LAW. THE PRIMARY HOLDING OR PRECEDENT IN THIS MATTER IS IN
RAY FULCOMER COMB MER. THAT ESSENTIALLY STANDS FOR THE CONCEPT OF EQUITABLE ADMISSION.
WE BELIEVE THAT THAT CASE WHICH IS STILL GOOD LAW, ACTUALLY 60 YEARS LATER.
THAT CASE, WITHOUT LIMITATION STANDS FOR THE PROPOSITION AT PAGE 422 THAT THE COMMISSIONER
THEN AND ARBITRATOR NOW HAS AN AFFIRMATIVE DECISION TO MAKE TO IMPOSE A PROPER REMEDY;
THAT PENALTY SHOULD BE BASED ON THE FINDINGS AS TO THE NATURE AND GRAVITY OF THE OEFRPSS
UN ALL THE CIRCUMSTANCES INVOLVED. ANY EVIDENCE AS TO PROVOCATION, EX EXTENT U AGS OR
AGO GRAGS SHOULD TAKE INTO ACCOUNT ANY HARM THE TEACHER'S CONDUCT MAY HAVE HAD ON THE
MAINTENANCE OF DISCIPLINE AND THE PROPER ADMINISTRATION OF THE SCHOOL SYSTEM.
WE WOULD AGAIN REFER TO THAT CASE AN RELY UPON IT WHERE IT SAYS COMMON SENSE DICTATES
THAT HE MUST, HE OR SHE, BE ARBITRATOR, MUST HAVE AND EXERCISE THE POWER TO IMPOSE THE
PENALTY GAUGED BY THE EVIDENCE BEFORE HIM AT THE HEARING. THE ARBITRATOR PRESIDED
OVER TWO DAYS OF HEARING TESTIMONY AND IN COMING TO HIS REMEDY, THE PENALTY THAT WAS IMPOSED,
HE RELIED UPON TESTIMONY. HE SUMMARIZED WITNESS STATEMENTS OF MR. GARRENGER, THE FORMER
PRINCIPAL OF THE HIGH SCHOOL, MR. WOL RAB, MR. ROTH, AS TO, IN THEIR TESTIMONY THE
DETRIMENTAL IMPACT OF PLAINTIFF'S OR RESPONDENT'S CONDUCT IN TERMS OF HER ASSISTANT PRINCIPAL
ROLE. BUT THE ARBITRATOR FUR FOUND THAT THERE WERE MITIGATING CIRCUMSTANCES
AND THERE WAS DISCUSSION OF IT IN HIS ARBITRATION AWARD AS TO WHILE THERE WAS A LEAKAGE,
I'LL CALL IT, OF THE VIDEO, OF THE INCIDENT, THAT IT WAS KIND OF CONTAINED TO THE EXECUTIVE
LEVEL, THE SUPERINTENDENT, THE PRINCIPALS. IT HADN'T FWOT TEN TO THE BUILDINGS AN OTHER
TEACHERS AN OTHER STAFF MEMBERS. SO THE ARBITRATOR SAID IT WOULD BE FAIR, IT WOULD BE
EQUITABLE OR A LETTER TERN TIFLY IT WOULD BE TRACK CONE YAN TO REMOVE THIS PERSON'S CAREER
BECAUSE OF ONE SLIP UP. AND ALLOWED HER TO KEEP HER JOB, KEEP HER CAREER, RECOGNIZING
IT WOULD BE HARDER OR RATHER EXTREME TO TERMINATE HER FROM HER ENTIRE CAREER. THERE
IS ADDITIONAL AUTHORITY, CASE LAW THAT THE ARBITRATOR RELIED UPON THAT IS CONSUMMATE
WITH THIS PARTICULAR MATTER. THIS MATTER IS DISTINGUISHABLE FROM EVERY CASE THAT IS GOOD
LAW IN THE SIR RA POFRP MATTER, WHERE IN THIS CASE THE ARBITRATOR DID NOT IMPERFECT MISS
PLEA CONVERT OR APPLY SOME HEIGHTENED STANDARD TO THE SITUATION AT HAND. IN
THAT CASE, THE ARBITRATOR IMPOSED A SEXUAL HARASSMENT STANDARD FOR A CIVIL OR EMPLOYMENT
BASED CONDUCT UNBECOMING CASE AN THE COURT FOUND THAT THE ARBITRATOR DID EXCEED HIS AUTHORITY
BY IMPOSING THAT HIGHER STANDARD. IN THIS CASE HERE, THE ARBITRATOR SIMPLY
RELIED UPON THE FULCOMER STANDARDS AND RELIED UPON THE PREMISE OF EQUITY BLANK IN THE
REWARD THAT WAS ENTERED. WE WOULD ALSO ADD THAT THE TENURE CHARGES IN THIS
MATTER, THERE WERE BASICALLY FOUR SEPARATE COUNTS, ALL OF THEM WERE SOME SEMBLANCE OF
CONDUCT, UNBECOMING, EACH AND EVERY ONE OF THEM SOUGHT THE EMPLOYEES REMOVAL FROM HER
POSITION AN OR HER IMMEDIATE DISMISSAL. WE WOULD ARGUE, THAT, AGAIN, THE ASH
TRAITOR DID THAT. HE REMOVED HER FROM HER POSITION OF ASSISTANT PRINCIPAL.
WE'RE SITTING HERE TODAY IN WHAT I JOKINGLY CALL AN UN HOLY ALLIANCE OF THE N J E A, THE
N Y P S A AND A BOARD ATTORNEY. WE VERY SELDOM AGREE ON ANYTHING. VERY SELDOMLY.
AS I INDICATED, I LOST THIS CASE IN THAT WE WANTED HER REMOVAL AND SHE WAS DEMOTED BUT
IN REVIEW AN CONSULTATION WITH MY CLIENT, PARTICULARLY IN LOOKING AT THE STANDARDS OF
VACATING AN ARBITRATION AWARD, THERE MAY HAVE BEEN MISTAKE. THERE MAY HAVE BEEN A
DIFFERING INTERPRETATION OF THE LAW, BUT THAT REASONABLE PLEA DEBATABLE STANDARD DOES NOT
WARRANT THE AWARD BEING VACATED AN QUITE FRANKLY A TRIAL COURT AGREED WITH THAT AN WE
WERE ABLE TO TAKE THAT. CHIEF JUSTICE RABNER: COUNSEL, YOU SAID IN YOUR
OPENING REMARKS, I DIDN'T WANT TO STOP YOU THERE, THAT THIS MATTER SHOULD BE REMANDED
IF YOUR ARGUMENT PREVAIL? WHY IS THAT, WHY WUPT THE ARBITRATOR'S AWARD
SIMPLY BE REINSTATED. LESTER E. TAYLOR, III: I WAS TRYING TO HAVE IT BOTH
WAYS, YOUR HONOR. TO THE STEPT THAT THERE ARE TWO ISSUES BEFORE THE COURT
TODAY, ONE DOES AN ARBITRATOR HAVE THE AUTHORITY TO DEMOTE AN EMPLOYEE UN THE TENURE EMPLOYEE
LAW AND N.J.S.A. 18 A:6-16. IF THE COURT ANSWERS IN THE AFFIRMATIVE YES, THE CASE IS
CLOSED THE AWARD IS REINSTATED. IF THE COURT ANSWERS NO OR RATHER IF THE
ARBITRATOR EXCEEDED HIS AUTHORITY THEN THE QUESTION IS ON REMAND IS THE ARBITRATOR
LIMITED TO THE REMEDIAL PURPOSES OR THE PENALTY PURPOSES, LIMITED TO JUST CONSIDERING WHAT
IF ANY ADDITIONAL SUSPENSION OR REDUCTION IN COMPENSATION OR CAN THE ARBITRATOR CONSIDER
ALL OPTIONS AVAILABLE I.E., REMOVAL FROM ALL POSITIONS IN THE DISTRICT.
JUSTICE WAINER APTER: YOUR EE ARGUING IF YOU WIN ON QUESTION ONE WE DON'T GET TO QUESTION
2 AT ALL. LESTER E. TAYLOR, III: CORRECT. JUSTICE PIERRE-LOUIS:
WE ONLY GET TO QUESTION 2 BECAUSE THE APPELLATE DIVISION HOLDING STATED THAT THE ARBITRATOR
WOULD THEN BE LIMITED T ON REMAND? LESTER E. TAYLOR, III: YES, YOUR HONOR.
RESPECTFULLY MY ADVERSARY IN HIS BRIEF TOOK SHOTS AT THE ARBITRATOR IN HIS
INEXPERIENCE AN LACK OF KNOWLEDGE IN THE FIELD OF EDUCATION LAW, WHAT TEACH N J IN 2012
WAS ENACTED TO ESSENTIALLY ASSIGN MATTERS TO ARBITRATORS FOR THE EFFECTIVE AND EFFICIENT
HANDLING OF TENURE CASES IN PARTICULAR, RATHER THAN BEING HANDLED BY OFFICE OF
ADMINISTRATIVE LAW JUDGES THE PURPOSE -- THE ARBITRATORS PURSUANT TO THE STATUTE ARE AMONG
A PANEL OF 50 SELECT INDIVIDUALS IN THE STATE OF NEW JERSEY. 16 OF THOSE ARBITRATORS
ARE SELECTED BY THE N J E A, 6 FROM THE AMERICAN FEDERATION OF TEACHERS, 18 FROM THE
NEW JERSEY SCHOOL BOARD ASSOCIATION AN 10 FROM THE NEW JERSEY PRINCIPAL AND SUPERVISOR
ASSOCIATION. THOSE ARBITRATORS ARE STATUTORILY REQUIRED TO HAVE A HEIGHTENED LEVEL OF
KNOWLEDGE OF SCHOOL LAW BASED UPON HOW THEY ARE SELECTED BY THAT PANEL AND CONTINUE TRAINING
THAT THEY ARE REQUIRED TO HAVE SFLFRMENT DOES ANY OF THIS MATTER IF THE REAL QUESTION
BEFORE US IS WHETHER THE ARBITRATOR EXCEEDED THE AUTHORITY GRANTED TO OR IMPERFECTLY EXECUTED
IT. LESTER E. TAYLOR, III: IT MATTERS FROM THE TANGENTIAL STAND POIB THAT
THE ARBITRATOR WAS A VERY WELL INFORMED AN KNOWLEDGEABLE INDIVIDUAL WITH RESPECT TO HIS
POWERS. CHIEF JUSTICE RABNER: A WELL INFORMED ARBITRATOR COULD GET IT WRONG
AND A POORLY INFORMED ARBITRATOR COULD GET IT RIGHT. WE NEED TO FIGURE OUT WHAT HAPPENED
ON THE MERITS QUESTION, NO? ' LESTER E. TAYLOR, III: VERY FAIR, MR. CHIEF
JUSTICE. IF I MAY MOVE ON WITH RESPECT TO A FEW STATUTORY MATTERS BECAUSE
AGAIN SCHOOL LAW IS BECOMING MORE COMPLEX AND MORE IS AN INTRICATE WEB OF STATUTES THAT
GOVERN THAT I ALLUDED TO EARLIER, TEACHER TENURE AN THE CONTROLLING TENURE. IN
PERSON SHALL BE DISMISSED OR REDUCED IN COMPENSATION WHILE THEY ARE UNDER TENURE.
JUSTICE PATTERSON: IT SEEMS THAT A PART OF THE APPELLATE DIVISION DECISION IS
THAT THERE IS MORE TO DEMOTION THAN A SALARY REDUCTION AND A STATUTE DOESN'T SAY THAT
THERE CAN BE A DEMOTION AS A REMEDY ONLY TERMINATING OR DEPRIVING THE EMPLOYEE OF
SALARY AND DEMOTION DOESN'T FIT INTO THAT, WHY IS THAT WRONG. LESTER E. TAYLOR,
III: I WOULD ARGUE THERE IS MORE TO A TERMINATION THAN A DEMOTION BECAUSE RESPECTFULLY
BE CAREFUL WHAT YOU ASK FOR BECAUSE IF THERE IS GOING TO BE THAT LITERAL INTERPRETATION,
THEN MORE ARBITRATORS WOULD BE LEFT WITH NO OTHER CHOICE OTHER THAN TO SEPARATE PEOPLE
FROM THEIR POSITIONS RATHER THAN EXERCISE REASONABLE AN INFORMED JUDGMENT BASED ON THE
PARTICULAR FACTS APPEND CIRCUMSTANCES OF EACH CASE. JUSTICE PATTERSON: THAT
MAY BE SO BUT OUR JOB IS TO INTERPRET THE STATUTE. WHY IS THE APPELLATE
DIVISION WRONG IN SAYING THAT THE STATUTE DOESN'T PROVIDE FOR A DEMOTION BECAUSE A DEMOTION
IS MUCH MORE OR MORE THAN A SALARY REDUCTION? LESTER E. TAYLOR, III: FOR
TWO REASONS. ONE, AS I REFERENCED EARLIER WITH RESPECT TO N.J.S.A. 2 A:24-8,
THE APPELLATE DIVISION AT PAGE -- DPIF ME ONE SECOND, PLEASE. PAGE 12 SECTION B OF THE
OPINION JUDGE SUMNERS UTILIZED THE WORD YOUR ARBITRATOR MADE A MISTAKE, THOSE WERE HIS
WORDS, N.J.S.A. 24-8 SUBSECTION 2 D WHICH IS PROBABLY THE MOST RELEVANT HERE, EXCEEDINGLY
AN IMPERFECTLY EXECUTING POWERS, THE WORD MISTAKE IS NOT THERE 6789 TO THE STEPT THE ARBITRATOR
MADE A MISTAKE, IT IS NOT THE COURT'S ROLE TO SECOND GUESS AN OR RECONSIDER MATTERS OUTSIDE
OF THE STATUTORY CONFINES IN 2 A 24-8. JUSTICE WAINER APTER: AREN'T YOU
ARGUING THAT UNDER 18 A:6-16, THE USE OF THE WORDS, IF, HOWEVER, HE SHALL DETERMINE THAT
SUCH CHARGES ARE SUFFICIENT TO WARRANT DISMISSAL OFFER REDUCTION OF SALARY IN THE PERSON
CHARGED HE SHALL REVIEW THE CASE TO AN ARBITRATOR IS REALLY JUST A CONDITION OF WHEN A
N ACE CAN GET REFERRED TO ARN ARBITRATOR AN NOT A LIMIT ON THE POWER OF THE ARBITRATOR
TO AWARD A REMEDY IF THE ARBITRATOR FINDS THAT THE CHARGES WERE PROVEN. LESTER
E. TAYLOR, III: THANK YOU, BECAUSE THAT'S THE TRANSITION TO MY NEXT LINE OF ARGUE MANY
WHICH IS ON PAGE 15 OF THE ARBITRATOR'S AWARD HE ACTUALLY IN FACT SAYS AFTER ASKING THE
PARTIES TO BRIEF THE ISSUE IN THEIR POST HEARING SUBMISSIONS, DO I HAVE THE AUTHORITY,
WHICH I THINK WAS A BIG HINT THAT I'M NOT GOING TO TERMINATE THIS PERSON FROM ALL OF THEIR
JOBS IN THE DISTRICT, SO DO I HAVE THE AUTHORITY TO DEMOTE HER. STATED DIFFERENTLY, DO
I HAVE THE AUTHORITY TO REMOVE HER, TO USE A STATUTORY TERM, REMOVE HER FROM HER ASSISTANT
PRINCIPAL JOB AN ALLOW HER TO KEEP THE JOB THAT SHE HAS 16 PLUS FIVE OR SIX MORE YEARS
WHEN YOU TACK ON THAT TIME OF TENURE AS A TEACHER AND SO YOU'RE RIGHT. JUSTICE
MICHAEL NORIEGA: ARE YOU USING THE WORD REMOVE AS IDENTICAL TO DISMISSAL. LESTER
E. TAYLOR, III: YES. JUSTICE MICHAEL NORIEGA: EARLIER, YOU WERE SUGGESTING
THAT REMOVE COULD HAVE DIFFERENT IMPLICATIONS. LESTER E. TAYLOR, III: WELL,
IT COULD, BUT AGAIN, THE STATUTORY TERM IS REMOVAL. IT DOES PT SAY FIRE. IT DOESN'T
SAY TERMINATE IT SAYS REMOVAL. JUSTICE MICHAEL NORIEGA: IN 6-16 WE'RE
TALKING ABOUT SUFFICIENT TO WARRANT DISMISSAL OR REDUCTION OF SALARY OF THE PERSON CHARGED.
LESTER E. TAYLOR, III: I WILL USE THE TERM TAIL THEN. DISMISSAL FROM HER
VICE PRINCIPAL POSITION, A POSITION WHICH SHE HAS TENURE IN BUT SHE ALSO, AS ANY OTHER
EMPLOYEE WHO WORKS THEIR WAY UP THE LADDER WOULD HAVE TENURE IN UNDERLYING POSITIONS,
AS WELL. JUSTICE MICHAEL NORIEGA: YOUR USE OF THE WORD REMOVAL.
LESTER E. TAYLOR, III: DISMISS. JUSTICE MICHAEL NORIEGA: COULD ALLOW TO BE
REMOVED FROM ONE OR DSED FROM ONE AN PLACED IN ANOTHER. JUSTICE MICHAEL
NORIEGA: DISMISSED HAS MORE OF A FINITE DEFINITION IN TERMS OF ONCE YOU'RE DISMISSED
FROM THE POSITION IT APPEARS YOU WOULD BE DISMISSED FROM THE ENTIRE SCHOOL DISTRICT.
LESTER E. TAYLOR, III: IF THAT'S THE CASE AND I DON'T DISAGREE WITH THAT
PER SE AND THAT'S WITH THE HACKENSACK CASE WHERE THERE WAS AN ASH TRAESHGS IN AK SACK
WHERE THERE WAS A QUESTION AS TO THE ARBITRATOR'S EVEN TENT IN REMOVING THE ATHLETIC DIRECTOR
OR DISMISSING THE ATHLETIC DIRECT TORE AND THE PARTIES SOUGHT CLARIFICATION FROM THE
ARBITRATOR, DID YOU EVEN TEN TO DISMISS THE PERSON FROM HIS A D JOB OR ALL OF HIS JOBS.
THE ARBITRATOR OPINED THAT HE DOESN'T HAVE THE AUTHORITY TO DEMOTE SO HE'S
REMOVING HIM FROM ALL OF HIS POSITIONS. WE GO BACK TO QUESTION A, WHICH IS
BEFORE THIS COURT, IF YOU AGREE THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DEMOTING
AN EMPLOYEE, BY DISMISSING HER FROM ONLY ONE POSITION VERSUS EVERYTHING, THEN WE WOULD
SUBMIT THAT IT SHOULD FWOE BACK TO THE ARBITRATOR AN HE WOULD BASICALLY BE DIRECTED THAT
SINCE YOU DISMISSED HER FROM THE CYST PRINCIPAL JOB THAT HAS THE EFFECT OF DISMISSING
HER FROM EVERYTHING. CHIEF JUSTICE RABNER: LET'S GO BACK TO THE E REQUEST
OF AUTHORITY THAT HAS BEEN FRAMED. LESTER E. TAYLOR, III: YES. L.
THE COURT: SECTION 16 TALKS ABOUT WHAT IS NEAT TO, QUOTE, REFER THE CASE TO AN ARBITRATOR.
IS THERE A STATUTE ELSEWHERE THAT EXPRESSLY SAYS ARBITRATORS CAN ONLY DISMISS
OR REDUCE SALARY AND HAVE NO OTHER AUTHORITY. LESTER E. TAYLOR, III: NO
THERE ISN'T. JUSTICE WAINER APTER: IS THERE ANY STATUTE THAT TALKS ABOUT
ANY REMEDY THAT THE ARBITRATOR CAN OR CANNOT IMPOSE? LESTER E. TAYLOR, III:
MY INTERPRETATION OF THE STATUTE IS THAT IF THE COMMISSIONER BELIEVES OR IN THE
COMMISSIONER'S OPINION THE CHARGES ARE SUFFICIENT TO WARRANT DISMISSAL OR REDUCTION HE
CAN REFER THEM TO AN ARBITRATOR. THE ARBITRATOR SHALL DETERMINE IF SUCH CHARGE IS SUFFICIENT
TO WARRANT DISMISSAL OR REDUCTION, BUT, AGAIN, THOSE TERMS AN IN MY INTERPRETATION ARE
AGAIN THE BARRIER OF THE BAR YOU HAVE TO GET OVER TO GET INTO THE COURTHOUSE SO TO SPEAK,
BUT ONCE THE CASE FWOES TO ARBITRATION PURSUANT TO OUR LAWS IN THE STATE OF NEW JERSEY,
ARBITRATORS HAVE WIDE POWERS TO FASHION REMEDIES WHETHER THEY BE CONTRACTUAL OR STATUTOR
ILY AND THERE IS NOTHING IN ANY STATUTE OR ANY CASE THAT AFERM MAT ACTIVELY OR DEFINITIVE
LY SAYS AN ARBITRATOR SHALL NOT OR OR OTHERWISE CANNOT DEMOTE, REMOVE IS IS, DISMISS
SOMETHING. AND THERE ARE A NUMBER OF CASESES, HALF A DOZEN OF WHICH I HANDLED WHERE AN
ARBITRATOR REEN STATES SOMEONE, CONDITIONS IT UPON LAST CHANCE AGREEMENT, CONDITIONS IT
UPON NO SOCIAL MEDIA YEAH CONTACT WITH MINORS SO THERE ARE A WHOLE LOT OF REMEDIES WHICH
COUNSEL DOESN'T. JUSTICE PIERRE-LOUIS: I THINK THE STATUTORY TUT YOU
WERE REFERRING TO EARLIER WITH REGARD TO THE COMPOSITION OF THE ARBITRATION PANEL, THAT
PARTICULAR STATUTE IS 6-17.1 THAT TALKS ABOUT THE PANEL, MEMBERSHIP, ASSIGNMENT OF CASES
PROCEEDINGS, TIMELINESS WHEN AN ARBITRATOR SHALL ESH A DECISION, TIME FRAMES FOR THE
PROCEEDINGS, BUT DOES SAYS NOTHING ABOUT WHAT THE ARBITRATOR IS CON FEEPD TO ONLY DISMISSAL
OR REDUCTION IN SALARY. LESTER E. TAYLOR, III: NOTHING, JUST THOSE TERMS
DISMISSAL OR REDUCTION OR JUST THE CONCEPTS. THEY HAVE TO BE SERIOUS ENOUGH.
BECAUSE, AGAIN AN EMPLOYEE CAN RECEIVE A VERBAL REPRIMAND OR A WRITTEN REPRIMAND AN INCREMENT
WITHHOLDING SO THERE ARE ALL TIMES OF SHLG THE TENURE DISCHARGE PROCESS IS FOR THE ULTIMATE
SACRIFICE WHICH IS TERMINATION. IT'S ALMOST LIKE A DEATH PEMENT JUST BECAUSE THE COURT
DOESN'T IMPOSE DEATH DOESN'T MEAN THE COURT CAN'T IMPOSE LIFE IN PRISON. ALSO
IT'S SOMEWHAT ANALOGOUS THAT IF THE ARBITRATOR DID MAKE A MISTAKE PERHAPS THE APPROPRIATE
REMEDY WOULD BE OR COULD BE SIMILAR TO THE HACKENSACK CASE THE PARTIES SHOULD HAVE
SOUGHT A CLARIFICATION AN OR A MOTION FOR RECONSIDERATION WHICH IS FILED IN THE
MUNICIPAL COURT OR RATHER SOUPS OF OUR SUPERIOR COURTS OF OUR STATE AN THAT INDIVIDUAL
HAS A RIGHT TO CLARIFY THEIR POSITION E SO IF UPON KNOWLEDGE, LET'S SAY AGAIN THERE IS
A BRIGHT LINE RULE THAT AN ARBITRATOR SHALL NOT BASED UPON THE APPELLATE DWEGS'S DECISION
IN THIS CASE DOES NOT HAVE THE AUTHORITY TO DEMOTE SOMEONE, TO REMOVE THEM OR DISMISS
THEM FROM ONE POSITION BUT NOT ALL POSITIONS THEN THAT ARBITRATOR SHOULD BE GIVEN THAT
GUIDANCE AN TOLD TO IMPOSE A PENALTY CONSISTENT WITH THE COURTS NOW NEW ISSUE OF FIRST
IMPRESSION INTERPRETATION OF THE LAW WHICH NOW WOULD BE LAW. JUSTICE MICHAEL
NORIEGA: IN YOUR EXPERIENCE, IF THERE IS NO GUIDANCE, THERE IS NO STATUTE, THERE IS NO
PLACE WHERE AN ARBITRATOR CAN DLAU THESE REMEDIES FROM, WHERE DO THEY NORMALLY DEVELOP
THE LIST OF REMEDIES THAT THEY USE IN TYPICAL A CASES. LESTER E. TAYLOR, III:
I THINK YOU STAFT FROM THE EXTREME OF DISMISSAL AND THEN YOU HAVE ECONOMIC PENALTIES OF
EITHER A SUSPENSION OR WITHHOLDING OF AN IN KREM. IT IS IMPORTANT TO NOTE IN THIS CASE,
JUST SALARY GUIDE OR PUBLIC INFORMATION, THE EMPLOYEE IN THIS CASE BASICALLY SUFFERED
ABOUT A $27,000 PER YEAR JUST FOR THAT FIRST YEAR HIT SO FROM ASSISTANT PRINCIPAL TO A
TEACHER JOB WAS $27,000, LET'S SAY $150,000 TO STLAR 125,000 THE FIRST YEAR. SHE WORKED
FOR ABOUT 23 YEARS. SHE PROBABLY HAS TEN, 15 MORE YEARS OF EMPLOYMENT. THE PENALTY IN
THIS CASE WAS WORTH UPWARD OF A HALF A MILLION DOLLARS SO THE ARBITRATOR COULD HAVE
SUSPENDED HER FOR FIVE YEARS TO GET THAT VALUE SO TO SPEAK, BUT THEN HOW WOULD THAT IMPACT
THE ORDINARY ORDERLY OPERATION OF A SCHOOL WHERE YOU HAVE A VACANCY FOR FIVE YEARS WHERE
SOMEONE HAS A RIGHT TO COME BACK. SO THAT WOULDN'T BE FAIR, EQUITABLE OR
REASONABLE IN THIS MATTER. AGAIN, IF THE ARBITRATOR THOUGHT THIS CASE WAS WORTH
A HALF A MILLION DOLLAR HIT TO THIS PERSON'S POCKET BY DEMOTING HER BECAUSE THEY GET
RAISES EVERY YEAR, TOO, IT WILL EXPAND AND IMPOUND. BUT I WILL BE EMPATHIC AN RECOGNIZE
THAT THE PERSON HAS AN OTHERWISE STELLAR RECORD BUT IT DOES WARPT PUN NESH MENT JUST
SHORT OF TERMINATION. JUSTICE PATTERSON: TAKING HER OUT OF ASSISTANT
PRINCIPAL, THE SUPERVISOR STRUCTURE OF SCHOOL BUT LEAVING HER IN AS A TEACHER MAY HAVE
MADE SENSE, INCLUDING THE FACT THAT THE ADMINISTRATORS OR SOME OF THE ADMINISTRATORS
SAW THIS VIDEO AND PERHAPS STUDENTS DIDN'T AND OTHER TEACHERS MAY NOT HAVE AN, ALSO, THE
FACT THAT SHE WAS NO LONGER IN A POSITION OF AUTHORITY OVER TEACHERS AFTER THIS INCIDENT.
LESTER E. TAYLOR, III: ABSOLUTELY. ABSOLUTELY I AM NOT GOING TO SECOND
GUESS JUST BECAUSE YOU WERE A GOOD TEACHER FIVE YEARS AGO DOESN'T MEAN YOU WOULD BE A
GOOD ONE NOW. I WAS A GOOD ASSOCIATE, BUT I WOULD PROBABLY BE HORRIBLE NOW.
CHIEF JUSTICE RABNER: THE ARBITRATOR COULD HAVE DISMISSED HER. LESTER E. TAYLOR,
III: EXACTLY. CHIEF JUSTICE RABNER: WHAT DID YOU ASK FOR IN THE ARBITRATION?
LESTER E. TAYLOR, III: DISMISSAL. SIMILAR TO THE HACKENSACK CASE WHEN
THE ARBITRATOR ASKED THE PARTIES TO BRIEF THE ISSUE CAN HE DEMOTE HER, CAN HE REMOVE HER
FROM THE A P POSITION TO A LOWER POSITION, YES, WE ARGUED THAT YOU SHOULDN'T. WE ARGUED
THAT THERE IS NOTHING THAT SAYS YOU CAN, BUT THAT'S JUST AN ARGUMENT THAT'S WHAT LAWYERS
DO. JUSTICE WAINER APTER: CAN YOU CLARIFY THAT. ORIGINALLY YOU
REQUESTED DISMISSAL, THEN THE ARBITRATOR REQUESTED SUPPLEMENTAL BRIEFING ON WHAT?
LESTER E. TAYLOR, III: POST HEARING BRIEFS SO RATHER THAN DOING AN ORAL CLOSING
WE DO POST HEARING SUBMISSIONS AN ONE OF THE QUESTIONS THAT WAS IN CONSIDERING FASHIONING
A REMEDY BASED ON THE CONTEXT HERE AND A LOT OF THE OTHER TENURE CHARGE CASES OUT THERE
EVERY DISTRICT IS SEEKING REMOVAL BUT IN LOOKING AT THE FACTS APDZ CIRCUMSTANCES EVEN
IF JUST CAUSE IS ESTABLISHED TO CONFIRM A WRONG, SO TO SPEAK, DOES THAT WRONG EQUAL A
WARRANT TERMINATION AND IN MORE INSTANCES THAN NOT THE ANSWER IS NO QUITE FRANKLY AND
THAT'S HOW YOU GET INTO THE MIDDLE GROUND. JUSTICE WAINER APTER: SO WHAT
DID THE ARBITRATOR REQUEST POST HEARING BRIEFING ON? LESTER E. TAYLOR, III:
WHETHER AN ARBITRATOR HAS THE POWER TO DEMOTE AN EMPLOYEE. JUSTICE MICHAEL
NORIEGA: AN WHAT WAS YOUR RESPONSE. JUSTICE WAINER APTER: AN YOUR ANSWER
WAS WHAT. LESTER E. TAYLOR, III: OUR ARGUMENT WAS THERE IS NOTHING THAT
SAYS YOU CAN OR CAN'T. THE COURT: AND YOUR COLLEAGUES ON THE OTHER SIDE
OF THE AISLE SAID. LESTER E. TAYLOR, III: I WILL LET HIM SPEAK FOR HIMSELF
BUT I THINK HE SAID THE SAME THING. YES, YOUR HONOR. SO, GOING
BACK TO, AGAIN, THE STATUTORY LANGUAGE IN THE STATUTE FOR ARBITRATION UPON TENURE CHARGES
IS, AGAIN, JUST THE THRESHOLD. IT'S NOT NECESSARILY A LIMIT ON THE ARBITRATOR'S
POWER. AS FRT STATED AGAIN BY THE ARBITRATOR AN THERE IS A LITANY OF CASE LAW, ASH TRAESHG
DECISIONS, SOME REPORT OF SUPERIOR COURT DECISIONS RNGSZ FULCOMER BEING ONE, HISTORILY
THAT A DEMOTION IS NOT EXPLICITLY IMPERMISSIBLE IN OUR SYSTEM AND WE WOULD SUBMIT THAT,
AGAIN, WITH RESPECT TO THIS MATTER THE ARBITRATION DECISION BE -- OR RATHER THE
APPELLATE DIVISION DECISION BE OVERTURNED THE ARBITRATION STIGS BE REINSTATED IN THE COURT
WERE TO RULE IN THE NEGATIVE ON THE MATTER THAT THE MATTER SIMPLY BE REMANDED TO THE
ARBITRATOR WITH A CLEAN SLATE TO FASHION A REMEDY WITH ALL OPTIONS AVAILABLE WHETHER IT
BE DISMISSAL OR REMOVAL, THE TERM BEING USED INTERCHANGE PLEA AND/OR A FINANCIAL PENALTY.
CHIEF JUSTICE RABNER: THANK YOU, COUNSEL, OKAY, MR. SCHWARTZ MR. HANNAN.
WILLIAM P. HANNAN: GOOD AFTERNOON, URNS, MAY IT PLEASE THE COURT. I
WOULD LIKE TO HIGHLIGHT TWO POENTS IN THE DECISION BELOW THAT WE BELIEVE ARE CRITICAL
TO CONSIDERATIONS OF THE ISSUES WE'RE DISCUSSING HERE TODAY. ALTHOUGH THE
FACT PATTERN IN THIS CASE WHICH INVOLVED AN ADMINISTRATOR HOLDING SEPARATE TENURE IN AN
INSTRUCTIONAL AND ADMINISTRATIVE POSITION IS RELATIVELY RARE IN TEACH N J STEGSZ, THE
DECISION GOES MUCH FURTHER THAN THIS UNCOMMON FACTUAL SCENARIO. THE APPELLATE
DIVISION DID NOT JUST SAY THAT AN ARBITRATOR IS NOT PERMITTED TO DEMOTE AN ADMINISTRATOR
UNDER LAW. QUOTING FROM THE ARBITRATORS AWARD DMOETING SANJUAN IS GIN
SKIPT WITH THE ACTIONS SET FORTH IN N.J.S.A. 16-10, THAT CLEAR, TEN, ARE SUSTAINED AGAINST
TENURE, CAN ONLY RESULT IN TERMINATION OR DEPRIVING HIM OR HER OF SALARY.
AND AS JUSTICE WAINER APTER POIPTD OUT EARLIER NOWHERE IN THE TEHL DOES IT SAY THOSE ARE
THE ONLY TWO REMEDIES OR PENALTY THAT AN ARBITRATOR CAN IMPOSE; THAT'S NOT IN THE
STATUTE, THAT'S BASED ON HOW THE APPELLATE DIVISION READ 6-10 BUT THERE IS NO
LIMITATIONS ON THE REMEDIES THAT AN ARBITRATOR CAN IMPOSE ELSEWHERE IN THE STATUTE.
JUSTICE PATTERSON: IS IT YOUR -- DO YOU AGREE WITH COUNSEL FOR THE SCHOOL BOARD THAT
ARBITRATORS ROUTINELY IMPOSE REMEDIES THAT ARE NOT EXPRESSLY PRESCRIBED IN STATUTES?
WILLIAM P. HANNAN: CORRECT, YES. WHEN IT WENT FROM THE O A L TO THE XHESH
IN HER OF EDUCATION, THE STATE BOARD OF EDUCATION, PRIOR TO 2012, THERE WERE PLENTY
OF STIGSZ WHERE THERE WERE REMEDIES OF THOSE TWO, THEN, COMPLETE DISMISSAL OR REDUCTION
IN SALARY AND SINCE THE TEACH N J ACT AMENDED THE TEHL IN 2012, THERE HAVE BEEN PLENTY
OF ARBITRATION STIGZ TAKING A SIMILAR COURSE SO ITS EEGS PART OF THE INDUSTRIAL KARMA
AT THIS POENT THAT THE REMEDIES IN TENURE HEARINGS CAN FWOEOUT SIDE OF COMPLETE
DISMISSAL OR REDUCTION IN SALARY. L. YOU KNOW, SOME OF THE EXAMPLES OF THIS,
PSYCHOLOGICAL EXAMINATION, LAST CHANCE AGREEMENT, PROFESSIONAL DEVELOPMENT AND TRAINING,
ANGER MANAGEMENT. SOMETIMES THE AVAILABILITY OF THESE INTERMEDIATE REMEDIES
WHICH ARE NOT SPECIFICALLY NOTED IN THE STATUTE WILL BE THE DEFENSE BETWEEN A TEACHER'S
TERMINATION OR REINSTATEMENT. IT IS OUR POSITION THAT THE APPELLATE DECISION'S
INTERPRETATION OF 6-10 TAKES THESE REMEDIES OFF THE TABLE AND THAT INTERPRETATION IS CONTRARY
TO THE PRINCIPAL OF PROGRESSIVE DISCIPLINE BECAUSE IT ROOUFS THE ABILITY OF AN
ARBITRATOR TO FASHION AN APPROPRIATE REMEDY BASED ON CIRCUMSTANCES SO SAY WE HAVE A WONDERFUL
TEACHER LONG TENURED HAS NEVER BEEN IN TROUBLE BEFORE MAYBE YELLS AT A STUDENT, THE
ARBITRATOR CONSIDERS THE FACTORS FROM IN RAY FULCOMER AND SAYS I DON'T THINK THIS WARRANTS
TERMINATION BUT I THINK THIS PERSON -- I'M NOT TOTALLY COMFORTABLE, I WOULD ASK THEM SEEK
MANAGE ANGER MANAGEMENT COURSES. WE ALSO SUBMIT THAT THIS GOES AGAINST TENURE
STATUTES FOR THIS COURT'S DECISION IN SPOOEF VAK VERSUS BLANK FROM 1982. THE
SECOND POINT I WOULD LIKE TO MAKE IS THAT THE APPROACH OF THE COURT BELOW.
JUSTICE WAINER APTER: IN TERMS OF THE FIRST POINT, SO YOU MENTIONED THAT THERE HAVE BEEN
LOTS OF CASES WHERE THERE IS ANOTHER RECOMMEND MED TEE THAT IS NOT COMPLETE DISMISSAL
OR REDUCTION IN SALARY. HAVE ANY OF THOSE STIGSZ BEEN SUBJECT TO A CHALLENGE
FOR LACK OF STATUTORY AUTHORITY AS OF BEFORE 2012 OR THEREAFTER? WILLIAM P.
HANNAN: NOT THAT I'M AWARE OF. THE SECOND POENT I WOULD LIKE TO MAKE IS
REGARDING THE APPROACH OF THE COURT BELOW IN INTERPRETING THE STATUTE, WE WOULD SUBMIT
THAT THESE CONTRARY TO HOW THIS COURT HAS APPROACHED THAT ISSUE IN THE PAST.
REPORTING FROM PAGE 17 OF THE OPINION BELOW, BECAUSE OUR LEGISLATURE CHOSE NOT TO INCLUDE
DEMOTION AS A PENT FOR A TEACHING STAFF MEMBER AN ARBITRATOR HAS NO AUTHORITY TO FIND
THAT COURSE OF ACTION. IN THE PAST, THIS COURT HAS TAKEN THE OPPOSITE APPROACH,
IN SCOTCH PLAINS FAN WOOD FROM 19785 AND LINDEN BOARD OF EDUCATION FROM 2010, THIS COURT'S
APPROACH HAS BEEN TO PERMIT AN ARBITRATOR TO FASHION AN APPROPRIATE REMEDY UNLESS THE
APPLICABLE KRCHL BA EXPRESSLY PROHIBITS THAT REMEDY. IN OTHER WORDS, A RECOMMEND MD DEE
NEED NOT BE EXPRESSLY INCLUDED TO BE, IT JUST NEEDS TO NOT EXPRESSLY BE PROHIBITED BY
THE C BA OR THE STATUTE AN THAT GOES BACK TO THE POENT I MADE EARLIER ABOUT THERE ARE
NO LIMITATIONS ON THE REMEDIES THAT AN ARBITRATOR CAN PROVIDE IN THE TEHL. WITH
JUST THE SHORT REMAINING TIME I HAVE LEFT, JUST ADDRESSING JUSTICE PATTERSON, I BELIEVE
YOU HAD MADE THE POINT THAT IS DEMOTION THAN A SALARY REDUCTION AS THE CHIEF JUSTICE
MENTIONED, THERE IS NO DISPUTE THAT AN ARBITRATOR CERTAINLY HAS THE AUTHORITY TO COMPLETELY
TERMINATE A TENURED EMPLOYEE FROM THERE, FROM THERE EMPLOYMENT CERTAINLY THAT'S A MUCH
HARSHER RESULT THAN A DEMOTION WHICH AN EMPLOYEE IS ALLOWED TO KEEP THEIR JOB, KEEP THEIR
TENURE, PRESUMABLY NOT HAVE THE OTHER EFFECTS WITH PENSION ISSUES. IT'S A MUCH LESSER RE
MEDY. I WOULD SUBMIT THE POWER TO IMPOSE THE MOST SERIOUS PENALTY FWENS AN EMPLOYEE IMPLIES
THAT A LESSER DISCIPLINARY PEMENT CAN ALSO BE APPLIED AGAINST THAT EMPLOYEE.
JUSTICE NOR YOU WERE ASKING ABOUT WHERE DO THESE RECOMMEND MED TEASE COME FROM, FROM THE
INDUSTRIAL, IN LAEB BORE ASH TRAESHGS AN LABOR LAW ITSELF. THE STANDARD QUESTION
IN HAD ARBITRATION IS IS THERE JUST CAUSE FOR THE PENT SOUGHT, IF NOT, WHAT IS THE RE
MEDY SO THE STANDARD ESH IN THIS CASE ALWAYS IMPLIES THAT THERE IS THE DISCIPLINARY
PENALTY THAT THE EMPLOYEE IS SEEKING AND THERE IS THE POSSIBILITY OF A LESSER PENT, AS
WELL. JUSTICE PATTERSON: OBVIOUSLY THE LEGISLATURE HAS THE ABILITY APPEND
THE AUTHORITY TO SAY IN THIS PARTICULAR SCENARIO, IF IT WANT TO, THERE ARE ONLY TWO RE
MEDIES AVAILABLE, ONE OF THEM DISMISSAL OF THE CHARGES. WILLIAM P. HANNAN:
CORRECT AND THE LAST POENT I WILL MAKE TO THAT POINT IS, SO PRIOR TO TEACH N J ACT OF
2012 IT WAS THE STATE BOARD OF EDUCATION THAT HAD THE AUTHORITY TO MAKE FIEM ADMINISTRATIVE
DECISIONS ON TENURE CASES WHEN IT WENT UP BEFORE THE ALJ. IT INCLUDED MORE INTERMEDIATE
REMEDIES ASIDE FROM DISMISSAL AN REDUCTION IN SALARY. IF THE COMMISSIONER OF EDUCATION
DISAGREED IT COULD HAVE SOUGHT AN AMENDMENT OR ADJUSTED THE INTERPRETATION. THE
TEACH N J ACT WAS A SIGNIFICANT OVERHAUL TO LARGE PARTS OF THE STATUTE, NOT NECESSARILY
THE INTABT SUBSTANTIATE I PARTS OF THE STATUTE WHICH HAD BEEN IN PLACE SINCE 1967, THE
SPECIFIC LANGUAGE, SPECIFIC REDUCTION SALARY BUT THE LEGISLATURE TOOK A FW LONG LOOK AT THE
TEHL. AT THAT POENT IF IT WANTED TO LIMIT THE REMEDIES AVAILABLE TO AN ARBITRATOR IT
COULD HAVE BEEN DONE THAT VENLT THE TEHL WAS AMENDED AGAIN IN 2015 WITH THE MAJOR CHANGE
THERE WAS THE ARBITRATION LIST WENT FROM 25 TO 50. AGAIN, THERE WAS PLENTY OF ARBITRATION
AWARDS IN THE 2012 TO 2015 PERIOD. THE LEGISLATURE WANTED TO AMEND IT AT THAT POEPT
TO LIMIT THOSE REMEDIES, THEY DECIDED THE INTENT WAS JUST TO ALLOW THE TWO REMEDIES OF THE
TWO OUTCOMES. IT COULD HAVE TAKEN ACTION THEN SO WE WOULD SUBMIT THAT THERE IS A LONG
HISTORY, THIS IS THE ACCEPTED COMMON LAW IN THIS AREA AND THAT BE THE APPELLATE DIVISION
BELOW CHANGED THAT. AS I MENTIONED THAT THE DECISION BELOW HAS SIGNIFICANT
CONSEQUENCES TO HOW TENURE HEARINGS ARE FWOEG TO OPERATE IN THE FUTURE AN HAS CREATED
UNCERTAINTY IN AN AREA WHERE THERE WAS NO UNCERTAIN BEFORE, WE WOULD ASK THE COURT TO
REVERSE THE STIGS EMPLOYEE AND CONTINUE TO ALLOW ARBITRATORS WIDE DISCRETION.
CHIEF JUSTICE RABNER: THANK YOU, COUNSEL RESPONDENT: CHIEF JUSTICE,
ASSOCIATE JUSTICES, MAY IT PLEASE THE COURT. WE BELIEVE THIS MATTER IS
STRAIGHTFORWARD, WE BELIEVE IT'S NOT COMPLICATED AND WE'RE HERE TODAY ONLY BECAUSE
WE BELIEVE THE APPELLATE DIVISION IN A PRECEDENTIAL DECISION ISSUED A RESULT
THAT WAS INCORRECT AS A MATTER OF LAW. AS NOTED IN OUR BRIEF, THE APPELLATE DIVISION
IMPOSED CONSTRAINTS THAT THE LEGISLATURE DID NOT AUTHORIZE, SPECIFICALLY
THE APPELLATE DIVISION DECISION CONSTRAINS ARBITRATORS DECIDING TENURE HEARING
LAW MATTERS IN 3 WAYS. FIRST, AN ARBITRATOR CAN DISMISS THE CHARGE
TOTALLY FOR A WANT OF EVIDENCE. THE DISTRICT DOESN'T SATISFY ITS BURDEN, THE CHARGE
IS DISMISSED. AND 2, SUSTAIN THE CHARGE AND FULLY TERMINATING THE EMPLOYEE
FROM EMPLOYMENT WITH THE LOCAL BOARD, AND THEN 3, SUSTAIN THE CHARGE BUT ONLY REDUCING
THE EMPLOYEE'S SALARY. AS THESE CONSTRAINTS ARE NOT FOUND IN THE
IMPLEMENTING LEGISLATION AT ALL, THE T H L, THE TENURE HEARING LAW, WE ASK THIS
COURT TO REVERSE AND ALLOW ARBITRATORS THE WIDE REMEDIAL AUTHORITY THAT THE
LEGISLATURE INTENDED. FIRST, AS TO THE STATUTE ITSELF, THE LANGUAGE OF DISMISSAL
OR REDUCTION IN PAY THAT DROVE THE APPELLATE DIVISION'S ANALYSIS AS JUSTICE APP.
PER TUR NOTED IS ONLY A FILTER, IT'S NOT A LIMIT ON AN ARBITRATOR'S REMEDIAL
AUTHORITY, IT'S ONLY A FELT FOR WHICH THE COMMISSIONER TO PROCESS A MATTER TO
ARBITRATION. THE LANGUAGE OF DISMISSAL OR REDUCTION OF PAY ONLY APPEARS
THREE TIMES IN THE STATUTE, FIRST IT APPEARS IN 18A 6-10. IN THAT SECTION IT SAYS
NO TENURED TEACHER -- EXCUSE ME, NO TENURED EMPLOYEE MAY BE DISMISSED OR
REDUCED IN PAY, AND I'M PARAPHRASING, WITHOUT A HEARING UNDER THIS SUB ARTICLE,
THAT IS THE TENURED HEARING LAW. SO I THINK WE CAN ALL AGREE THAT THE
LIMITATION THERE IS NOT A LIMITATION AT ALL, IT'S JUST WHAT THE STATUTE IS DESIGNED
TO EFFECTUATE. IN 6-11, THE LOCAL BOARD IS THE WURJ OPERATING
UNDER THIS FILTRATION PROCESS, THE SUPERINTENDENT SIGNS A TENURED CHARGE WHICH
IS SORT OF AKIN TO AN INDICTMENT, NOT A PERFECT ANALOGY BUT IT'S SORT OF
A CHARGE TO THE EMPLOYEE THAT IS UNDER OATH, THE EMPLOYEE THEN PROVIDES A RESPONSE
OR A POSITION STATEMENT AS TO THE CHARGE, IT'S 23409 TRUE, HERE'S WHY, AND
THEN THE BOARD RECEIVES THAT, AND THE BOARD REVIEWS THE POSITION STATEMENT OF THE
EMPLOYEE, THE CHARGE OF THE DISTRICT AND SUPERINTENDENT, AND DETERMINES WHETHER
IF THE CHARGE IS TRUE WOULD BE SUFFICIENT FOR EITHER A DISMISSAL OR A REDUCTION
IN PAY. IF SO, THE BOARD CERTIFIES THE CHARGE TO THE COMMISSIONER OF HE HAD, THEN
THE COMMISSIONER OF HE HAD IMPORTANT FORMS THAT SAME FILTRATION FUNCTION
AND THAT IS IN 6-16 OF THE STATUTE, THERE, ONCE THE COMMISSIONER RECEIVES THE CHARGE
ALONG WITH THE STATEMENT OF THE EMPLOYEE THE COMMISSIONER DOES THE SAME
FUNCTION THAT THE BOARD PREVIOUSLY DID UNDER 6-11, THE COMMISSIONER REVIEWS THE
CHARGE TO DETERMINE IF TRUE IT IS SUFFICIENT FOR DISMISSAL AND PAY AND
THEREFORE SHOULD BE PROCEEDING TO ARBITRATION, OTHERWISE IT IS DISSOLVED FOR
INSUFFICIENCY NICHLT IS THERE A MECHANISM FOR THE,, IF THAT WILL IS THE WAY IT IS
DESIGNED, TO DEMOTE THE PERSON SHORT OF DISMISSAL OR REDUCTION IN PAY.
RESPONDENT: I DON'T BELIEVE SO. THE COMMISSIONER UNDER THE
STATUTE IS PERMITTED TO ENTERTAIN A MOTION FOR SUMMARY DECISION IF THE MATTER IS
NOT TRANSFERRED FOR ARBITRATION. I DON'T HAVE THE SITE IN THE STATUTE ON THAT
ISSUE BUT I DO KNOW THAT THE TENURE HEARING LAW ALLOWS AN EMPLOYEE TO SUBMIT A
MOTION FOR SUMMARY JUDGMENT RIGHT AWAY. FOR EXAMPLE THE EMPLOYEE MAY SAY
THESE CHARGES ARE NOT SUFFICIENT FOR EITHER REDUCTION IN PAY OR DISMISSAL, THEY ARE
SOMETHING PETTY, ILTHS INTENDED TO REMEDY EGREGIOUS CONDUCT AND IT DOESN'T
MEET THE STANDARD SO WE'RE GOING TO MOVE ON A SUMMARY BASIS AND THE COMMISSIONER
IS GOING TO ENTERTAIN THAT MOTION, THE COMMISSIONER DOESN'T HAVE TO, HE CAN RM
ENTERTAIN THAT MOTION AND DETERMINE WHAT'S PROMOTE, SO I THINK THE ANSWER
TO YOUR QUESTION IS PROBABLY YES BUT I DON'T KNOW FOR CERTAIN.
BUT ONCE THE COMMISSIONER REVIEWS THE CHARGE AND DETERMINES THAT IT IS SUFFICIENT
FOR EITHER A DISMISSAL OR REDUCTION IN PAY, THE COMMISSIONER TRANSFERS THE
MATTER TO AN ARBITRATION AND AS I THINK JUSTICE PATTERSON AND JUSTICE APP. NOTED,
THERE'S NO LIMITATION ON THE JUSTICE'S REMEDIAL AUTHORITY. AS JUSTICE
PIERRE-LOUIS SAID, THE OPERATING STATUTE ONCE IT GOES TO ARBITRATION IS 17.1 AND
IN THAT SECTION THERE ARE LIMITS ON WHAT ARBITRATORS CAN DO, BUT NONE OF THOSE
LIMITATIONS REFLECT LIMITS ON THEIR REMEDIAL AUTHORITY. FOR EXAMPLE, A
N ARBITRATOR MUST HOLD A HEARING WITHIN 45 DAYS OF THE ASSIGNMENT, THE ARBITRATOR
MUST ISSUE A DECISION WITHIN 45 DAYS OF THE COMMENCEMENT OF THE HEARING.
THE ARBITRATOR CANNOT RECEIVE MORE THAN 1250 A DAY, IF THE ARBITRATOR WANTS AN
EXTENSION THE ARBITRATOR NEEDS TO SEEK THAT FROM THE COMMISSIONER, AND CRITICALLY
THE ARBITRATOR'S DECISION IS FINAL AND BINDING SUBJECT ONLY TO A VERY, VERY
LIMITED JUDICIAL REVIEW, THAT IS FOR JUDICIAL VOK TER OF AN ARBITRATION AWARD 2A
27-7 THROUGH 10. THUS THE LANGUAGE OF DISMISSAL OR REDUCTION IN PAY THAT
DROVE THE ANALYSIS OF THE APPELLATE DIVISION WAS MERELY A FILTER. THE FILTER BY
WHICH A MATTER COULD GO TO ARBITRATION. AND I SHOULD NOTE THAT PRE TEACH N.J.,
THIS FILTER EXISTED, EXCEPT PRE TEACH N.J., THAT IS THE TENURE REFORM LAW THAT
MY COLLEAGUES DISCUSSED THAT WAS ENACTED IN 2012, PRE TEACH N.J. THE
COMMISSIONER STILL UNDER WEVENT THAT FILTRATION FUNCTION BUT INSTEAD OF TRANSFERRING
IT TO ARBITRATOR, THE COMMISSIONER TRANSFERRED IT TO AN ALJ AT THE OFFERS OF
ADMINISTRATIVE LAW. BUT IMPORTANTLY THE ALJ WHEN DECIDING A TENURE CASE ISSUED
AN INITIAL DECISION AND THAT INITIAL DECISION WAS THEN AFFIRMED, MODIFIED OR
REJECTED BY THE COMMISSIONER. THE COMMISSIONER WHEN REVIEWING AN ALJ DECISION
COULD VERY WELL SAY I DISAGREE WITH THIS RESULT. THE BOARD MAY ARGUE THAT THE
RESULT IS WRONG FOR THESE REASONS, THE EMPLOYEE MAY ARGUE THAT THE RESULT
IS WRONG FOR THOSE REASONS AND THE COMMISSIONER MAY SAY YOU KNOW WHAT, I
DISAGREE TOO AND I'M GOING TO REVERSE, THE COMMISSIONER CAN'T DO THAT NOW,
THE LEGISLATURE TOOK THAT POWER AWAY WHEN THEY MADE THE ARBITRATION AWARD FINAL
AND BINDING, NOW JUDGES CAN'T DISAGREE WITH THE RESULT. THERE'S NO FUNCTION FOR
JUDICIAL REVIEW THAT ALLOWS ANY TRIBUNAL TO DISAGREE WITH AN ARBITRATOR UNLESS
IT WAS PERPETRATED BYE-BYE I SAY, CORRUPTION, FRAUD, UNDUE MEANS, ONE OF THE
DELINEATED FACTORS IN 2A 24/7 THROUGH 10. SO IF THIS CASE OCCURRED PRE TEACH
N.J. I THINK THE RESULT SHOULD BE THAT THE APPELLATE DIVISION GOT IT WRONG, BUT
POST IT, I THINK THERE'S NO QUESTION. THE COURT: COUNSEL,
WHAT WOULD QUALIFY AS AN EXCESS UNDER 2A TWALT--- ANDREW L.
SCHWARTZ: WELL, FOR EXAMPLE, IF THE ARBITRATOR TOLD THE VICE PRESIDENT YOU'RE NOW
GOING TO BE A CUSTODIAN AND YOU'RE GOING TO BE IN CHARGE OF FACILITIES,
I THINK THAT WOULD BE OUTSIDE THE ARBITRATOR'S POWERS, THE VICE PRINCIPAL MAY
NOT HAVE A CERTAIN CERTIFICATION TO DO CUSTODIAL WORK, THE PENALTY THAT THE
ARBITRATOR WOULD HAVE ISSUED IN THIS HYPOTHETICAL, JUSTICE NORIEGA, WAS NOT SOUGHT
BY, A DISTRICT TO ISSUE TENURE CHARGES, I LITIGATED A CASE YEARS AGO WHERE
THE DISTRICT DID NOT SEEK A DISMISSAL, ONLY SAW A DMOEGS FROM A PRINCIPAL POSITION
TO A VICE PRINCIPAL POSITION, THE ARBITRATOR SAID THAT WAS IMPROPER, THE
DECISION WAS NOT CHALLENGED, I'M NOT SAYING IT'S BINDING PRESS TENDER BUT I DON'T
BELIEVE A DISTRICT CAN USE THE TENURE HEERPG PROCESS TO EFFECTUATE WHAT
WOULD BE AN INTERNAL DEMOTION, A TENURED ADMINISTRATOR OR A TENURED TEACHER, YOU ARE
ESSENTIALLY GIVEN A LOT OF PROTECTION FROM REGULAR WRONGDOING.
JUSTICE WAINER APTER: WOULDN'T THAT HURT YOU IN THIS CASE, IN THIS CASE WHAT HAPPENED
WAS THE ARBITRATOR ENDED UPHOLDING THAT THERE WOULD BE NO DISMISSAL, IT WOULD
ONLY BE AN INTERNAL DEMOTION AS YOU JUST CALLED IT. SO YOU'RE SAYING A SCHOOL
BOARD CANNOT REQUEST THAT BUT AN ARBITRATOR CAN IMPOSE IT.
ANDREW L. SCHWARTZ: I BELIEVE THAT'S CORRECT. JUSTICE WAINER
APTER: WHERE IN THE STATUTE WOULD WE LEARN THAT. ANDREW L.
SCHWARTZ: SO WHERE IN THE STATUTE CAN WE ASCERTAIN THAT A SCHOOL DISTRICT CANNOT
REQUEST ONLY -- JUSTICE WAINER APTER: THAT AN ARBITRATOR
CAN STILL IMPOSE. ANDREW L. SCHWARTZ: WELL, BECAUSE THE
ARBITRATOR IS NOT LIMITED BY ANY STATUTORY CRITERIA TO IMPOSE HIS OR HER REMEDY.
CHIEF JUSTICE RABNER: WHAT LIMITS THE ADVOCATE?
ANDREW L. SCHWARTZ: WHAT LIMITS THE ADD VOE KILT LIKE THE SCHOOL BOARD FRL
PROCEEDING ON ONLY SAY FOR EXAMPLE WE THINK THIS CONDUCT IS EGREGIOUS BUT WE
DON'T THINK IT'S SO EGREGIOUS TO WARRANT YOUR FULL TERMINATION AND IT ONLY BEARS
ON YOUR ADMINISTRATIVE SERVICE AND NOT YOUR TEACHING SERVICE SO WE'RE GO BEING
TO REMOVE YOU FROM THE PRINCIPAL ROLE AND PLACE YOU AS THE CHEMISTRY TEACHER?
CHIEF JUSTICE RABNER: GET TO THE END OF THE HEARING, IS THE
SCHOOL BOARD BARRED FROM SAYING WE'RE SATISFIED WITH A DEMOTION HERE.
ANDREW L. SCHWARTZ: I BELIEVE NO, YOUR HONOR, BECAUSE IF THE SCHOOL BOARD
IS AUTHORIZING A TENURE CHARGE THAT IS SEEKING A FULL DISMISSAL OR A
REDUCTION IN PAY AND WE GO TO THE HEARING AND THE COMMISSIONER REVIEWS THE CHARGE,
EVERYTHING IS SUFFICIENT, IT PROCESSES TO ARBITRATION, IS THE SCHOOL BOARD
BARRED FROM MAKING A CLOSING STATEMENT AND SAYING YOU KNOW IN THE ALTERNATIVE,
ARBITRATOR, WE WOULD ACCEPT JUST AN INTERNAL DEMOTION, I DON'T THINK SO.
JUSTICE WAINER APTER: EITHER WAY COULDN'T THE SCHOOL BOARD JUST REQUEST
A REDUCTION IN SALARY AND ISN'T THAT LESS THAN A DEMOTION. I'M CONFUSED, IT SEEMS
LIKE IF A SCHOOL BOARD WANTS TO ACHIEVE A REDUCTION IN SALARY IT STILL HAS
TO GO THROUGH THIS WHOLE PROCESS BECAUSE UNDER 610 IT SESSION THAT WILL. SHE READ
THE. IF THERE IS ENOUGH TO GET A REDUCTION IN COMPENSATION YOU HAVE TO
GO TO ARBITRATION, SO I'M CONFUSED. ANDREW L. SCHWARTZ: THEY CAN
USE THIS PROCESS TO REQUEST A REDUCTION IN SALARY, AND THE 6-10 STATUTE
THAT YOU REFERENCED THE TENURE HEARING LAW WORKS IN TANDEM WITH 18A 28 A-5 AND
6 WHICH IS TENURE ACQUISITION, 285 AND 6 SAYS ESSENTIALLY THAT ONCE YOU ACHIEVE
TENURE ACQUISITION YOU CANNOT BE DISMISSED OR REDUCED IN PAY UNLESS THE PROCESS
OF 6-10 IS FOLLOWED. CHIEF JUSTICE RABNER: AND IT DOESN'T MATTER
FOR THIS CASE BUT I'M NOT SURE I UNDERSTOOD YOUR ANSWER OF THE THESE
CHARGES COULD HAVE PROCEEDED EXACTLY THE WAY THAT THEY DID, YOUR POSITION IS THAT
EVERYONE UNDERSTOOD THAT THE ARBITRATOR HAD THE ABILITY TO USE DMOEGS AS
THE REMEDY, BUT THE SCHOOL BOARD COULD NOT HAVE SAID AT THE END OF THE HEARING
WE'VE NOW HEARD EVERYTHING, THAT'S WHAT WE WANT AS WELL. ANDREW L.
SCHWARTZ: I BELIEVE THEY COULD HAVE. JUSTICE WAINER APTER:
WERE YOU THE ULTIMATE DECISION WOULD BE FOR THE ARBITRATOR.
ANDREW L. SCHWARTZ: THE ULTIMATE DECISION WOULD BE FOR THE ARBITRATOR BUT THE SCHOOL
BOARD CAN SEEK DISMISSAL AT THE OUTSET AND THEN LIKE ANY PROSECUTOR --
JUSTICE WAINER APTER: OR CAN SEEK A DEMOTION AT THE OUTSET,
BECAUSE THEY CAN ALSO SEEK A REDUCTION IN SALARY AT THE OUTSET, AND A DEMOTION
IS MORE THAN A REDUCTION IN SALARY, IT'S CERTAINLY NOT LESS THAN A REDUCTION
IN SALARY. ANDREW L. SCHWARTZ: I THINK THIS IS -- I DON'T
HAVE A -- LET ME JUST SAY THAT I THINK IF YOU ARE REDUCED IN YOUR SALARY, THAT IS
EFFECTIVELY A FORM OF DEMOTION, I AGREE WITH YOUR POINT, JUSTICE VM THE MATTER
OF MILK KORM MILK WHICH IS A PRE TEACH N.J. CASE THAT DID NOT GO TO THE
THE APPELLATE DIVISION IS INSTRUCTIVE, IT'S CITED, IT'S A PRE N.J. CASE, BUT IN THAT
CASE THE DISTRICT, I FORGET WHICH DISTRICT, IT'S UNITED IN THE BRIEF, IN
MY BRIEF AND I THINK IN MY COLLEAGUE'S LOEFTD TAYLOR'S BRIEF AS WELL AND PERHAPS
N.J. A'S BRIEF AND MAYBE EVEN THE EMPLOYEE BRIEF, THE SCHOOL DISTRICT USED THE
TENURE HEARING PROCESS TO REMOVE AN EMPLOYEE FROM ONE HIGHER POSITION TO A LOWER
TENURED POSITION. THE COURT: THE SIGNIFICANCE OF THE CASE IS THAT
THE COMMISSIONER HAD NO PROBLEM WITH THAT AND AFFIRMED WHAT THE A L JUDGE DID.
ANDREW L. SCHWARTZ: INDEED. THE COURT: IN VIEW
OF THE HOUR, IS THERE ANYTHING ADDITIONAL THAT YOU WOULD LIKE TO PRESENT.
ANDREW L. SCHWARTZ: I WOULD JUST LIKE TO EMPHASIZE THAT IT'S VERY IMPORTANT
TO RECOGNIZE THAT ANOTHER REASON THE APPELLATE DIVISION'S ANALYSIS WAS
INCORRECT IS BECAUSE OF THE FRAMING, USING THE WORD DEMOTION TO DRIVE THE ENTIRE
ANALYSIS. THE DISTRICT GOT THE RESULT OF A DISMISSAL, IT WAS
JUST NOT IS A COMPLETE AND TOTAL DISMISSAL FROM EMPLOYMENT. NOW JUSTICE NORIEGA
ASKED A QUESTION BEFORE ABOUT REMOVAL VERSUS DISMISSAL, IS IT THE SAME,
DISMISSAL SEEMS TO HAVE A MORE FINITE SORT OF DESIGNATION TO IT, I WOULD DISAGREE,
JUSTICE. IF YOU'RE A TENURED EMPLOYEE, YOU CAN'T BE REMOVED FROM YOUR
POSITION, YOU CAN'T BE DISMISSED FROM YOUR POSITION, UNLESS TENURED CHARGES ARE
SUSTAINED AGAINST YOU AND SO IN THIS CASE WE HAVE A VICE PRINCIPAL WHO WAS REMOVED
FROM HER VICE PRINCIPAL POSITION AND PLACED IN HER TEACHING POSITION, NOW
MY COLLEAGUE REPRESENTING THE EMPLOYEE SAYS THAT HER TENURE WASN'T STRIPPED.
RESPECTFULLY, THAT IS A -- THAT CONCLUSION REPRESENTS A FUNDAMENTAL
MISUNDERSTANDING OF HOW THE TENURE LAWS OPERATE, IF YOU ARE REMOVED FROM A TENURED
POSITION YOU DON'T HAVE TENURE IN THAT POSITION ANY MORE OTHERWISE YOU
WOULDN'T HAVE BEEN REMOVED, SO THE EMPLOYEE CAN BE REMOVED FROM THAT ONE POSITION
AND THE APPELLATE DIVISION DECISION FAILED TO RECOGNIZE OR APPRECIATE THAT THIS
WAS IN FACT A DISMISSAL. SO IF THE COURT IS INCLINED TO VIEW THE LANGUAGE OF DISMISSAL
OR REDUCTION IN PAY AS A LIMITATION ON THE ARBITRATOR'S REMEDIAL AUTHORITY,
THE RESULT BELOW IS FULLY CONSISTENT WITH THAT RESULT BECAUSE IT INDEED WAS A
DISMISSAL. AND FINALLY ALLOWING THIS RESULT IS FULLY CONSISTENT WITH THE
SPIRIT OF THE TENURE LAW AS MY COLLEAGUE FROM N.J. A SAID, YOU TERN IT SEPARATELY
UNDER 28-5 AND 28-6 AND IT CAN BE REMOVED SEPARATELY UNDER 6-10 AND FINAL THIS
COMPORTS WITH THE PUBLIC POLICY ANNOUNCED BY THIS COURT THAT THE TENURE
LAWS SHOULD BE LIBERALLY CONSTRUED. I'M HAPPY TO ANSWER ANY OTHER QUESTIONS.
THANK YOU. CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. MR.
GOLDMAN. EVAN L. GOLDMAN: GOOD AFTERNOON, MR. CHIEF JUSTICE
AND ASSOCIATE JUSTICES. THE APPELLATE DIVISION GOT IT RIGHT. NOW, WHY DO I SAY
THAT? WELL, IF YOU LOOK AT THE TITLE OF SECTION 18A:6-10, IT SAYS DISMISSAL
AND REDUCTION IN COMPENSATION OF PERSONS UNDER TENURE IN PUBLIC SCHOOL SYSTEM.
IT DOESN'T SAY DISMISSAL COMMA, DEMOTION, COMMA, AND/OR REDUCTION IN COMPENSATION.
IT SAYS DISMISSAL OR REDUCTION IN COMPENSATION. THAT WAS THE BASIS OF
THE APPELLATE DIVISION'S OPINION IN THIS CASE. THEY SAID THAT THE ARBITRATOR IN
USING THE WORDS DEMOTED, BECAUSE IT WAS HIS WORDS, DEMOTED, EXCEEDED HIS
AUTHORITY WHICH IS ONE OF THE CRITERIA THAT YOU CAN APPEAL FROM AN ARBITRATOR'S
DECISION, HE EXCEEDED HIS AUTHORITY BY DEMOTING HER. WHY? BECAUSE THE STATUTE
DOESN'T SAY NO PRN SHALL BE DISMISSED OR DEMOTED OR REDUCED IN COMPENSATION.
CHIEF JUSTICE RABNER: COUNSEL, IS THERE A STATUTE YOU CAN
POINT US TO THAT EXPRESSLY SAYS ARBITRATORS ONLY HAVE THE POWER TO DISMISSAL
OR REDUCE COMPENSATION AND NOTHING ELSE? EVAN L. GOLDMAN:
THE ONLY THING YOU CAN GO BY, YOUR HONOR, IS WHAT I JUST QUOTED FROM.
CHIEF JUSTICE RABNER: THAT'S NOT A STATEMENT IN THAT STATUTE ABOUT THE
ARBITRATOR'S REQUIREMENT, IS IT? EVAN L. GOLDMAN: WELL THE
ONLY PERSON THAT CAN MAKE THAT DECISION IS THE ARBITRATOR. CHIEF
JUSTICE RABNER: OKAY, I'LL ASK IT AGAIN, BECAUSE I WANT YOUR HELP ON THIS, IS THERE
LANGUAGE THAT YOU CAN POINT TO THAT EXPRESSLY LIMITS WHAT THE ARBITRATOR
CAN DO. EVAN L. GOLDMAN: NO, THE STATUTE DOESN'T SAY PER
SE ANY STATUTE WITHIN THIS TENURE LAWS DOESN'T SAY AN ARBITRATOR CAN ONLY DISMISS
OR REDUCE IN SALARY, BUT THE WHOLE PROCESS, THE ONLY INDIVIDUAL OR BODY THAT
CAN MAKE THAT DECISION IS AN ARBITRATOR, AN ADMINISTRATIVE LAW JUDGE CAN'T DO
IT, THE COMMISSIONER OF EDUCATION CAN'T DO IT, SO THE ONLY PERSON THAT CAN DO
IT IS AN ARBITRATOR. JUSTICE PIERRE-LOUIS: ACTUALLY IN THE
STATUTE IF THERE'S A MOTION FOR SUMMARY DECISION, THE COMMISSIONER RETAINS
THE CASE. ISN'T THAT CORRECT? UNDER 16-16? EVAN L. GOLDMAN:
I'M NOT SURE THERE'S EVER BEEN A SUMMARY DECISION UNDER THE NEW TEACH ABILITY.
JUSTICE PIERRE-LOUIS: WELL THAT'S WHAT IT SAYS THOUGH, IT
SAYS IF HOWEVER THE COMMISSIONER SHALL DETERMINE THAT SUCH CHARGE IS SUFFICIENT
TO WARRANT DISMISSAL OR REDUCTION OF SALARY, HE SHALL REFER THE CASE TO
AN ARBITRATOR, EXCEPT THAT WHEN A MOTION FOR SUMMARY DECISION HAS BEEN MADE PRIOR
TO THAT TIME THE COMMISSIONER MAY RETAIN THE MATTER FOR THE PURPOSES OF
DECIDING THE MOTION. SO IN THAT INSTANCE IT SEEMS THAT THE CHANCERY DIVISION
COMMISSIONER DOES RETAIN THE CASE AND DECIDES THE MOTION FOR SUMMARY DECISION.
WHAT OPTIONS ARE AVAILABLE TO THE COMMISSIONER IN THAT SCENARIO.
EVAN L. GOLDMAN: NO, THE OATH OPTION THEY HAVE, BECAUSE BEFORE THE
MATTER IS GIVEN TO AN ARBITRATOR, THE ONLY OPTION THAT A COMMISSIONER HAS IS TO
EITHER GRANT IT OR TO DENY THE SUMMARY DISPOSITION. IF HE OR SHE DENIES THE
DISPOSITION THEN IT GETS REFERRED TO AN ARBITRATOR WHO'S POWERS ARE LIMITED.
JUSTICE WAINER APTER: ARE YOU SAYING IT'S A SUMMARY MATTER, NOT A SUMMARY
DISPOSITION, MEANING THEY CANNOT ONLY REMOVE, THEY CAN SAY THERE'S NOTHING HERE,
OR THEY CAN SINNED IT TO AN ARBITRATOR. EVAN L. GOLDMAN:
RIGHT, THAT'S THE GATEKEEPER SO TO SPEAK, SO THE COMMISSIONER OF EDUCATION IS
THE GATEKEEPER IN TERMS OF WHETHER THERE IS ENOUGH EVIDENCE TO AT LEAST THEN
SUBMIT IT TO AN ARBITRATOR. ONCE ITS SUBMITTED TO AN ARBITRATION, THE COMMISSIONER
IS COMPLETELY OUT OF THE PICTURE. JUSTICE PIERRE-LOUIS: RIGHT,
BUT I'M TALKING ABOUT THAT LAST PORTION OF THE STATUTE. SO THE FIRST PORTION
OF THAT PARAGRAPH DISCUSSES A SCENARIO IN WHICH THE COMMISSIONER DOES NOT THINK
THERE'S SUFFICIENT, IT'S NOT SUFFICIENT TO WARRANT DISMISSAL OR SALARY,
THE REDUCTION, AND IT'S DONE, THE CASE IS DONE. EVAN L. GOLDMAN:
RIGHT. JUSTICE PIERRE-LOUIS: SO I UNDERSTAND IN THAT INSTANCE
NOTHING HAPPENS, NOTHING GOES FURTHER. BUT THE STATUTE SAYS IF THE COMMISSIONER
DOES DETERMINE THAT SUCH CHARGE IS SUFFICIENT TO WARRANT SUCH CHARGE OR
REDUCTION, THEN THE COMMISSIONER RETAINS THE MAD FOR THE PURPOSE OF DECIDING THE
MOWING, THE MOTION FOR SUMMARY DECISION. EVAN L. GOLDMAN:
THAT'S CORRECT, NOW I HAVE NEVER SEEN THAT OCCUR PRE OR POST ANY OF THE TENURE
LAWS, SO I'M NOT SURE WHETHER -- HOW THAT WOULD PLAY OUT, BECAUSE IF THERE'S
A DECISION BY -- WELL, IF THERE'S A DECISION, A SUMMARY DECISION BY THE
COMMISSIONER, THEN YOU CAN APPEAL IT IN THE NORMAL COURSE TO THE APPELLATE DIVISION
AND THEN IT WOULD BE THE NORMAL WAY TO DECIDE THAT AGAINST THE WEIGHT OF THE
EVIDENCE, IN OTHER WORDS THE APPELLATE DIVISION WOULDN'T BE LIMITED THE SAME WAY
THEY'RE LIMITED TO WHEN AN ARBITRATOR DECIDES A MATTER. BECAUSE THAT IS ONE OF THE
KEY ELEMENTS IN THIS PARTICULAR CASE. ONCE THEY PASSED THE T H L STATUTE,
GIVING THE POWER TO THE ARBITRATOR TS, IT WANTED TO AT LEAST, IT GIVES POWER TO
THE ARBITRATORS BUT AT THE SAME TIME, NO DECISION HAS EVER BEEN MADE AS
TO HOW BROAD THOSE POWERS ARE. CHIEF JUSTICE RABNER: WHAT ABOUT
MILK CORE MILK WHICH OF COURSE IS A DATED CASE WHERE THE TEACHER WAS DEMOTED
FROM A TENURED ADMINISTRATIVE POSITION TO A TEACHING DECISION AND WHEN THE DECISION
WENT UP TO THE COMMISSIONER, THE COMMISSIONER SAID THAT'S FINE.
EVAN L. GOLDMAN: AGAIN, THAT'S PRE TEACH ACT CASE, THAT IS --
JUSTICE WAINER APTER: BUT WHAT CHANGED IN THE STATUTE THAT MEANT THAT BEFORE IT
USED TO BE THAT THE REMEDIES WERE DISMISSAL, REDUCTION IN SALARY,
REINSTATEMENT ON THE CONDITION OF COMPLETING A FITNESS FOR DUTY ASSESSMENT OR
PSYCHIATRIC EVALUATION OR TRAINING ABOUT APPROPRIATE PHYSICAL CONDUCT IN SCHOOLS
OR PROBATION OR A LAST CHANCE BASIS, WHAT CHANGED THAT ALL OF THAT USED
TO BE OKAY AND NOW IT'S NOT. WHERE IN THE STATUTE CAN WE SEE THAT THE LEGISLATURE
SAID THERE WILL BE NO MORE REMEDIES, NONE OF THESE CREATIVE INTERMEDIATE
REMEDIES, THERE WILL ONLY BE DISMISSAL OR REDUCTION IN SALARY FOREVER GOING FORWARD.
EVAN L. GOLDMAN: WELL WE DON'T KNOW IF THAT WOULD HAVE BEEN
OKAY IF IT WENT UP TO THE APPELLATE DIVISION. JUSTICE WAINER
APTER: YOU AGREE THAT IT HAPPENED FOR DECADES, NOT ONLY THE CASE THAT THE CHIEF
JUSTICE READ ABOUT, WE HEARD THERE HAVE BEEN MANY CASES WHERE THE DECISION
WAS NOT DISMISSAL OR REDUCTION IN SALARY, INCLUDING REINSTATEMENT ON THE FITNESS
FOR DUTY ASSESSMENT, ETS, YOU DISAGREE THAT ALL OF THOSE CASES HAVE IMPOSED
THOSE REMEDIES. EVAN L. GOLDMAN: OBVIOUSLY THE CASES IMPOSED
THOSE PENALTIES BUT HERE'S THE MAIN DIFFERENCE IN MY OPINION. AND THIS IS WHAT
MAKES THE ARBITRATION PROCESS WHERE YOU HAVE PEOPLE THAT ARE ARBITRATORS THAT
ARE NOT DIRECTLY INVOLVED IN THE NEW JERSEY SCHOOL SYSTEM MAKING THESE DECISIONS.
LET'S ASSUME FOR THE SAKE OF ARGUMENT THAT THIS IS A VERY SMALL SCHOOL
SYSTEM, THAT THE SCHOOL SYSTEM, AGAIN, THIS IS A HYPOTHETICAL, SMALL SCHOOL SYSTEM,
THERE IS AN ASSISTANT PRINCIPAL WHO WAS PREVIOUSLY A FRENCH TEACHER IN THE
SCHOOL SYSTEM, VERY SMALL SCHOOL SYSTEM, SO SHE BECOMES AN ASSISTANT PRINCIPAL.
NOW THERE'S ANOTHER FRENCH TEACHER, RIGHT, THE SCHOOL SYSTEM HAS ONE FRENCH
TEACHER IN THE ENTIRE SCHOOL SYSTEM, SHE'S AN ASSISTANT PRINCIPAL, NOW THERE'S
ANOTHER FRENCH TEACHER, ARBITRATOR GETS THE CASE AND SAYS YOU KNOW WHAT, I'M NOT
GOING TO DISMISS YOU, I'M GOING TO DEMOTE YOU BACK TO BEING A FT FRENCH TEACHER,
WHAT DOES THE SCHOOL TEM DO NOW. JUSTICE WAINER APTER: I
UNDERSTAND IT MAY PUT THE SCHOOL TEM INTO AN ODD POSITION BUT IT HAS NOTHING
TO DO WITH THIS CASE AND THE STATUTE DOESN'T SAY ANYTHING ABOUT IT, MY QUESTION
IS WHAT ALLOWED THOSE INTERMEDIATE CREATIVE REMEDIES UNDER THE PRE 2012 SYSTEM
AND DISALLOWED THEM POST. EVAN L. GOLDMAN: MAYBE THEY SHOULDN'T
HAVE BEEN ALLOWED. IF YOU LOOK CAREFULLY AT THOSE DECISIONS, A LOT OF THOSE,
MOST IF NOT ALL THE DECISIONS SAY WE'RE GOING TO PARTIALLY UPHOLD THE TENURE CHARGES,
PARTIALLY UPHOLD AND THIS IS THE CONDITION, THE CONDITION IS FITNESS
FOR DUTY, CONDITION IS LAST CHANCE, THE CONDITION IS PSYCHOLOGICAL COUNSELING, WE'RE
GOING TO PARTIALLY UPHOLD THESE DECISIONS. THAT IS NOT WHAT HAPPENED HERE.
JUSTICE WAINER APTER: BUT EITHER WAY THE STATUTE DOESN'T SAY
THAT THAT IS EXPLICITLY ALLOWED AND YOUR ARGUMENT HERE IS THAT IT CANNOT HAPPEN
UNLESS THE STATUTE EXPLICITLY SAYS THAT IT CAN HAPPEN. EVAN L.
GOLDMAN: THAT IS MY ARGUMENT, YES, BECAUSE THE ONLY WORDING THAT YOU HAVE, AGAIN,
IN MY OPINION YOU CAN'T GO BACK TO WHAT THE COMMISSIONERS OF EDUCATION DID
BECAUSE NOT IT'S COMPLETELY OUT OF THEIR HANDS, THE ONLY WORDING THAT YOU HAVE
IS THAT NO PERSON SHALL BE DISMISSED OR REDUCED IN COMPENSATION.
JUSTICE NORIEGA COULDN'T THE ARBITRATOR HAVE FOUND THAT THE CHARGES WERE NOT SUSTAINED.
EVAN L. GOLDMAN: ABSOLUTELY, IT SAYS NO PERSON SHALL BE DISMISSED
UNLESS X Y AND Z, SO THE ONLY WAY YOU CAN DISMISS AN INDIVIDUAL WITH TENURE IS
TO REMOVE TENURE, ONCE YOU REMOVE TENURE THE SCHOOL BOARD IS AT LIBERTY
TO DISMISS THAT PERSON HOWEVER THEY WANT TO DO THAT. JUSTICE
NORIEGA: I'M SORRY, JI MAKE R I DIDN'T MAKE MYSELF CLEAR R-COULD THEY HAVE DISMISSED
THE CHARGES AGAINST YOUR CLIENT, NOT DISMISS YOUR CLIENT, SCOMPLIS THE
CHARGES. EVAN L. GOLDMAN: ABSOLUTELY, THAT'S WHAT THE WHOLE
DENY YOU'RE HEARING IS ABOUT. JUSTICE NORIEGA: THAT'S NOT LISTED
ANYWHERE IN THE STATUTE, THAT THE ARBITRATOR HAS THAT AUTHORITY, THE
COMMISSIONER HAS THAT AUTHORITY TO SUSTAIN WHETHER OR NOT IT IS SUBJECT TO DISMISSAL
OR SUBJECT TO A REDUCTION OF PAIN, BUT THAT AUTHORITY DOES NOT APPLY TO THE
ARBITRATOR IN THIS STATUTE. EVAN L. GOLDMAN: WELL MY ARGUMENT IS
THAT IT DOES BECAUSE AGAIN, THE ONLY PERSON THAT CAN MAKE THE DECISION,
ONCE IT GETS PAST THE GATEKEEPER, THE ONLY PERSON THAT CAN MAKE THE DECISION AS
TO WHETHER A PERSON SHALL BE DISMISSED OR REDUCED IN COMPENSATION IS THE
ARBITRATOR, AND THEN IT GOES THROUGH THE DIFFERENT CATEGORIES WHICH THEY CAN FIND.
JUSTICE WAINER APTER: YOU JUST MENTIONED THE COMMISSIONER
BEING A GATEKEEPER, IS THAT PURSUANT TO 6-16. EVAN L. GOLDMAN:
WELL THEY CALLED IT A FILTER, I CALL IT A GATEKEEPER. JUSTICE
WAINER APTER: SO YOU AGREE THAT THE PURPOSE OF 6-16 IS ONLY A GATEKEEPER, WHETHER
OR NOT IT GOES TO ARBITRATION. EVAN L. GOLDMAN: THAT WOULD
BE MY POSITION, YES. JUSTICE WAINER APTER: SO THEN WHERE
DO WE FIND IN THE STATUTE ANYTHING THAT RESTRICTS THE ARBITRATOR'S ABILITY
TO IMPOSE ANY REMEDY THAT THEY WANT, IF YOU JUST AGREED THAT 6-16 IS A GATEKEEPER
ONLY ABOUT WHETHER IT GETSDZ TO ARBITRATION, THEN WHERE IS THE STATUTE
THAT SAYS ONCE IT'S AT ARBITRATION THE ARBITRATOR CAN ONLY IMPOSE X OR Y AS A
REMEDY. EVAN L. GOLDMAN: I GO BACK TO 6-10 AND WE MAY HAVE
A DISAGREEMENT ON IT BUT 6-10 TALKS ABOUT WHEN AN INDIVIDUAL CAN BE DISMISSED OR
REDUCED IN COMPENSATION, NOT DISMISSED, DEMOTED AND REDUCED IN COMPENSATION.
AND AGAIN, THE ONLY PERSON THAT CAN MAKE THAT DECISION IS THE ARBITRATOR.
CHIEF JUSTICE RABNER: COUNSEL, MR. TAYLOR GRACIOUSLY DANCED AROUND THE
QUESTION ABOUT WHAT YOU SAID WHEN THE ARBITRATOR ASKED CAN I DEMOTE AT THE END
OF THE HEARING, WHAT DID YOU SAY. EVAN L. GOLDMAN: I'M GLAD
YOU ASKED THAT QUESTION BECAUSE I THINK WE ALSO HAVE TO TALK ABOUT WHAT HAPPENED
AT THE BEGINNING OF THE HEARING. JUSTICE PATTERSON: I WANT TO START
AT THE END OF THE HEARING. EVAN L. GOLDMAN: OKAY, FINE.
THE END OF THE HEARING THE ONLY THING THE ARBITRATOR ASKED, AND MR. TAYLOR
WAS NOT PRESENT AT THE HERE, IT WAS A SOESHLT OF HIS, THE ONLY THING THAT THE ARBITRATOR
ASKED WAS CAN HE DO SOMETHING SHORT OF TAKING AWAY HER TENURE, AND BOTH OF US
CITED FULCOMER, NOT FOR THE PURPOSE OF DEMOTION, BUT ON THE PURPOSE OF EXACTLY
WHAT FULCOMER STANDS FOR WHICH IS BASICALLY YOU CAN WITHHOLD AN INCREMENT, YOU
CAN INCREASE A SUSPENSION, RIGHT, THE ORIGINAL SUSPENSION WAS A CERTAIN
AMOUNT OF TIME, ACTUALLY THE ARBITRATOR DID INCREASE THE SUSPENSION, AFTER HE CAME
OUT WITH HIS DECISION HE SAID OKAY, SHE CAN BE REINSTATED WITHIN 60 DAYS
SO THAT INCREASED HER SUSPENSION. WE BOTH AGREED THAT THAT WAS THE LIMITS AS
TO WHAT HE COULD DO AND THE REASON WHY I SAID JUSTICE PATTERSON ABOUT LET'S
START ABOUT THE BEGINNING BECAUSE IT WAS NEVER THE DISTRICT'S POSITION, NEVER,
OR ELSE MAYBE IT WOULD HAVE BEEN ARGUED AND MAYBE WE WOULDN'T BE HERE, THAT
SHE HAD TWO 10 URS, AND THAT BOTH 10 URS SHOULD BE REMOVED, BOTH AS AN ADMINISTRATOR
AND BOTH AS A TEACHER. JUSTICE WAINER APTER: BUT YOU AGREE
THAT AS A MATTER OF LAW SHE DID WAS THAT'S HOW TENURE WORKS, CORRECT? OR.
EVAN L. GOLDMAN: WELL, SHE HAD TWO TENURES, I DON'T KNOW WHETHER
YOU CALL HER TEACHER TENURE TO BE BASICALLY IN ABEYANCE RIGHT NOW BECAUSE I
DON'T KNOW HOW IT WORKS ONCE YOU HAVE TWO TENURES, THE ONE CASE, THE PETRELLA
CASE IS A LITTLE BIT DIFFERENT BECAUSE YOU HAD TENURE AS AN ATHLETIC DIRECTOR AND
TENURE AS A TEACHER AND HE COULD DO BOTH AT THE SAME TIME. YOU CAN'T BE BOTH
AN ASSISTANT PRINCIPAL AND A TEACHER AT THE SAME TIME. SO YES, SHE HAD TWO TENURES,
I DON'T KNOW HOW THAT WOULD HAVE BEEN HANDLED, BUT THAT WAS NEVER, EVER
PRESENTED TO THE ARBITRATORS, THE ONLY THING THAT WAS PRESENTED TO THE ARBITRATOR
WAS HER TENURE AS AN ASSISTANT PRINCIPAL. NEVER ARGUED BY THE DISTRICT, NEVER
ARGUED BY THE DISTRICT, THAT, YOU KNOW WHAT, IF YOU DON'T WANT TO REMOVE HER TENURE
AS AN ASSISTANT PRINCIPAL OR YOU DON'T WANT TO SFIER HER COMPLETERLY JUST
REMOVE HER TENURE AS AN ASSISTANT PRINCIPAL BUT WE'RE ARGUING THAT -- THEY NEVER
ARGUED THAT, THEY ARGUED BY REMOVING HER TENURE AS AN ASSISTANT PRINCIPAL THAT
THEY WOULD HAVE ACHIEVED WHAT THEY WANTED AND IF THAT OCCURRED THEN WHAT THEY SAY
NOW ABOUT TWO TENURES, I WOULD HAVE ARGUED HEY IF THE ARBITRATOR GRANTORED THAT
AND REMOVED HER TENURE AS AN ASSISTANT PRINCIPAL, AND THEN DECIDED TO FIRE
HER, I WOULD SAY YOU CAN'T FIRE HER, SHE STILL HAS TENURE AS A TEACHER.
JUSTICE WAINER APTER: BUT THAT IS WHAT HAPPENED, THE ARBITRATOR TOOK AWARE
HER TENURE AS AN AD STLATD AND SO YOUR ARGUMENT WON, HER TENURE AS A TEACHER
REMAINED. EVAN L. GOLDMAN: HE NEVER EVEN CONSIDERED THAT,
THE ARBITRATOR, THE ARBITRATOR NEVER CONSIDERED THE FACT THAT SHE HAD TWO TOOEN
TENURES TENURES BECAUSE TWAUL NEVER IN THE REALM, YOU LOOK AT THE ENTIRE RECORD,
YOU LOOK AT THE POST HEARING BRIEFS, ANYTHING THAT OCCURRED IN THIS CASE,
AND NOBODY EVER ARGUED THAT SHE HAD TWO TENURES AND THAT BOTH SHOULD BE REMOVED.
CHIEF JUSTICE RABNER: SINCE THE ARBITRATOR'S AWARD HAS SHE
HAD TENURE AS A TEACHER. EVAN L. GOLDMAN: WELL, SHE RETAINS TENURE
AS A TEACHER. SINCE THE ARBITRATOR AWARD SHE WAS PUT BACK IN HER POSITION
AS A TEACHER, THEN AFTER THE APPELLATE DIVISION RULED. JUSTICE
WAINER APTER: I'M SORRY, I'M READING FROM THE ARBITRATOR'S DECISION WHERE IT
SPECIFICALLY SAYS THAT PLAINTIFF'S CONDUCT WARRANTED LOSS OF THE ADMINISTRATIVE
POSITION BUT ALSO "RETENTION OF HER TENURE TEACHING ROLE IN THE DISTRICT, SO IT
SEEMS LIKE YOU JUST SAID THE ARBITRATOR DID NOT DO THAT, BUT IT SEEMS LIKE
THE ARBITRATOR SAID THAT GOES EXACTLY WHAT I'M DOING. EVAN L.
GOLDMAN: HE DEMOTED HER THOUGH. JUSTICE WAINER APTER: HE PHRASED
IT AS RETENTION OF HER TENURED TEACHING ROLE IN THE DISTRICT.
EVAN L. GOLDMAN: I DO REMEMBER THAT BUT I THINK HE ALSO GOES ON TO SAY THAT HE
DOESN'T EVEN KNOW WHAT AUTHORITY HE HAS TO DO THAT. I BELIEVE HE MENTIONED
THAT SOMEWHERE IN HIS DECISION. BUT BE THAT AS IT MAY, AGAIN, WHAT I DID, AND
AGAIN, THAT'S THE POSITION OF IT'S THE POSITION OF THE AMICI BUT NOT THE
POSITION OF THE DISTRICT, THE POSITION OF THE AMICI IS HEY, THEY HAD STOO TENURES,
ALL HE REALLY DID WAS TAKE AWAY ONE TENURE WHICH IS THE SAME THING AS SIMPLY A
REDUCTION IN SALARY, THAT'S THEIR ARGUMENT, IF YOU READ THEIR BRIEF, THE
DISTRICT ISN'T SAYING THAT, THAT WAS NEVER THEIR ARGUMENT. THEIR ARGUMENTS WAS
SIMPLY HEY, SHE HAS "TENURE" PLEASE REMOVE HER TENURE AND THEREFORE WE CAN
THEN FIRE HER. JUSTICE NORIEGA: REGARDLESS OF THEIR ARGUMENT
IF THAT'S THE ONLY FINDING THAT JUSTICE WAINER APTER JUST READ AND IS IN THE A
WASHED, DOES THAT CHANGE YOUR ARGUMENT AT ALL. EVAN L. GOLDMAN:
NO, I STILL GO BY 6-10 WHICH IN MY READING AND MY OPINION LIMITS THE AUTHORITY
OF THE ARBITRATOR TO EITHER DISMISS OR REMOVE TENURE OR REDUCE IN
COMPENSATION. JUSTICE PIERRE-LOUIS: WHAT IS YOUR SPORNS TO
THE AMICI'S ARGUMENT THAT YOUR READING OF THE STATUTE LIMITS THE POSSIBILITY OF
PROGRESSIVE, YOUR ARGUMENT IS THERE'S TWO POSSIBLE OUTCOMES, COMPLETE DISMISSAL
OR REDUCTION -- EVAN L. GOLDMAN: OR REMOVAL OF TENURE.
JUSTICE PIERRE-LOUIS: BY WAY OF DISMISSAL. EVAN L.
GOLDMAN: RIGHT, 3 POSSIBLE RESULTS, RIGHT, DISMISSAL OF CHARGES, REMOVAL OF TENURE
WHICH THEN PERMITS THEM TO TERMINATE OR AND/OR REDUCTION OF SALARY WHICH IS
USUALLY WITHHOLDING OF AN INCREMENT OR AN ADDITIONAL SUSPENSION WHICH IS CONSISTENT
WITH THE FULCOMER DECISION. JUSTICE PIERRE-LOUIS: SO SUSPENSION
FALLS WITHIN THE CATEGORY OF POSSIBLE DISCIPLINE. EVAN L.
GOLDMAN: THAT'S REDUCTION OF SALARY, AN ADDITIONAL SUSPENSION IS IN ESSENCE A
REDUCTION IN SALARY BECAUSE YOU'RE NOT GOING TO GET PAID DURING THAT PERIOD
OF TIME, SO THAT'S REALLY WHAT THE REDUCTION IN COMPENSATION.
JUSTICE PIERRE-LOUIS: SO ALL THE OTHER POSSIBLE REMEDIES AND DISCIPLINES THAT
YOUR COLLEAGUES ON THE OTHER SIDE HAVE DISCUSSED, THOSE ARE NOT A POSSIBILITY
IN CASES WHERE THERE MIGHT BE A TELL LAR TEACHER THAT FOR THE FIRST TIME HAD WITHIN
INCIDENT AND MAYBE APP. ARBITRATOR DECIDES THAT NEITHER SUSPENSION OR REDUCTION
IN SALARY OR DISMISSAL IS WARRANTED, THOSE ARE NOT AN OPTION. EVAN
L. GOLDMAN: I AGREE WITH THAT, YES, I AGREE AND I THINK THERE'S A REASON FOR THAT.
ONCE YOU GIVE THE DECISIONMAKING PROCESS TO AN ARBITRATOR, THAT SHOULD LIMIT
WHAT HE OR SHE IS ABLE TO DO, AGAIN, PURSUANT TO MY READING OF THE STATUTE.
BECAUSE YOU HAVE VERY VERY LIMITED CHANCE TO APPEAL THERE, ONCE IT WAS HEARD
PREVIOUSLY BY THE ADMINISTRATIVE LAW JUDGE, YOU COULD ARGUE HEY IT WAS AGAINST
THE WEIGHT OF THE EVIDENCE. OR WE KNOW THAT BASED UPON LAW, RIGHT, THE
COMMISSIONER OF EDUCATION BY HIM OR HERSELF COULD OVERTURN WHAT THE ADMINISTRATIVE
LAW JUDGE SAID AND COULD IMPOSE HIS OR HER OWN PENALTY. WE DON'T HAVE THAT ANY
MORE, IT DEFINITELY STREAMLINES THE PROCESS BUT IN STREAMLINING THE PROCESS IT
SHOULD ALSO LIMIT WHAT AN ARBITRATOR CAN OR CANNOT DO. MY POSITION IS THE STATUTE
IS CLEAR AS TO WHAT HE OR SHE CAN'T DO, WHICH IS THAT, AGAIN, IF THE
LEGISLATURE WANTED TO GIVE POWER TO THE ARBITRATOR TO DEMOTE OR TO DO ANYTHING ELSE,
THEY COULD HAVE SIMPLY ADDED THE WORDS IN 18A:6-10 THAT NO PERSON SHALL
BE DISMISSED OR DEMOTED OR REDUCED IN COMPENSATION OR ANYTHING ELSE. THEY
COULD HAVE DONE THAT, BUT THEY DIDN'T DO THAT. THE COURT:
SO YOU'RE RELYING HEAVILY ON SECTION 10 OF COURSE. EVAN L. GOLDMAN:
I'M RELYING UPON IT JUST AS THE APPELLATE DIVISION RELIED UPON IT IN DECIDING THE
CASE AND IN REALIZING THAT THERE WAS NO OTHER DECISION THAT EVER DEFINED
WHAT AN ARBITRATOR CAN DO OR WHAT THE STATUTE MEANS OTHER THAN THE SIMPLE READING
OF THE STATUTE. CHIEF JUSTICE RABNER: SECTION 10 WAS
ENACTED LONG BEFORE TEACH N.J. IN 1967. EVAN L. GOLDMAN: THAT'S CORRECT.
CHIEF JUSTICE RABNER: SO ALL OF THE CASES THAT DID NOT FOLLOW
THE ROUTE THAT YOU'VE OUTLINED FOR US, ARE VIOLATIVE OF THE STATUTE AS YOU UNDERSTAND
IT. EVAN L. GOLDMAN: THEY MAY HAVE BEEN. AGAIN, IT'S HARD
TO SAY WHAT ANY APPELLATE DIVISION WOULD HAVE DONE IF THAT ISSUE WAS RAISED
BEFOREHAND, BUT IT PROVIDES -- MANY THINGS WERE DIFFERENT BEFORE THE TEACH
ACT. AS I INDICATED, RIGHT, WE HAD THE ADMINISTRATIVE LAW JUDGE MAKING A DECISION,
THE COMMISSIONER COULD HAVE EITHER RUBBER STAMPED IT OR MADE SOME OTHER
DECISION AND THEN IT COULD HAVE BEEN AN APPEAL TO THE APPELLATE DIVISION WHERE
THERE WOULD BE DIFFERENT STANDARDS FOR REVIEW. RIGHT? IT'S A LOT DIFFERENT
NOW AND THAT IS WHAT THE APPELLATE DIVISION FOUND, THAT IT'S MUCH DIFFERENT WHEN
YOU LIMIT SOMEONE'S POWER AS TO WHAT THEY CAN OR CANNOT DO AND THAT PERSON THEY
DIDN'T INDICATE IT BUT IN MY OPINION THAT PERSON IS NOT PART OF THE NEW JERSEY
STATE SCHOOL SYSTEM, THEN THEIR POWER SHOULD BE LIMITED AND AS THE APPELLATE
DIVISION STATED, THE STATUTE, WHILE IT DOESN'T SAY AN ARBITRATOR CANNOT DISMISS
OR -- OR CAN ONLY DISMISS OR REDUCE IN COMPENSATION, THAT'S THE ONLY PERSON THAT CAN
REDUCE OR DISMISS IN COMPENSATION IS AN ARBITRATOR, THAT LIMITS HIS OR HER
ABILITY TO DO ANYTHING DIFFERENT. THE COURT: ANYTHING ELSE YOU'D
LIKE TO ADD. EVAN L. GOLDMAN: I HAVE NOTHING FURTHER.
THANK YOU VERY MUCH, YOUR HONOR. CHIEF JUSTICE RABNER: AND THANK YOU
TO ALL COUNSEL, WE'LL TAKE THE MATTER UNDER ADVISEMENT,