Entire Controversy Doctrine Inapplicable to Teacher Tenure Charge

Yarborough v. State Operated School District of the City of Newark, ___ N.J. Super. ___ (App. Div. 2018).  Plaintiff, a third-grade teacher in the Newark public schools, faced a conduct-unbecoming tenure charge for inflicting corporal punishment on two students, in violation of N.J.S.A. 18A:6-1.  An arbitrator found against plaintiff and imposed a 120-day suspension without pay.  Plaintiff sought to vacate that ruling in the Law Division, but that court denied that relief, effectively confirming the arbitration award.  On plaintiff’s appeal, the Appellate Division today affirmed.  Judge Moynihan wrote panel’s opinion.

The key issue on appeal was whether the entire controversy doctrine (“ECD”) precluded the school district from pursuing the tenure charge.  That question presented itself because the corporal punishments had occurred on October 21, 2013 and February 28, 2014, and two other tenure actions were brought against plaintiff thereafter for alleged inefficiency.  Plaintiff argued that under the ECD, the charge relating to the corporal punishment should have been brought in those proceedings, and that that charge could not properly have been brought when it was.

This was a pure legal issue, as to which Judge Moynihan invoked de novo review.  But the panel found plaintiff’s view of the ECD to be “overextended.”  Judge Moynihan observed that “arbitration– with its ordinarily narrow-framed issues– does not provide a forum conducive to extensive issue … joinder.”  The fact that the other arbitration were limited to charges of inefficiency “militate[d] against application of the ECD.”  The Legislature provided for special procedures regarding the arbitration of inefficiency charges, which made the other arbitrations “not conducive to the inclusion of other charges, including conduct unbecoming.”

The intent of the ECD buttressed the panel’s result.  Judge Moynihan noted that the ECD compels joinder in a single controversy based on “fairness to the parties and protection of the judicial system from unnecessary waste, inefficiency, and delay.”  The inefficiency and conduct unbecoming charges were were not part of the same controversy, given their “discrete factual bases and the separate procedural rules for inefficiency matters.”  This lack of a “transactional nexus” made the ECD inapplicable.

Plaintiff also argued that the arbitration award was procured by undue means because it was not supported by a preponderance of the evidence.  Judge Moynihan dispatched that contention quickly.  The “keen assessment of law and fact” set forth in the Law Division’s opinion upholding the award showed that the arbitrator’s findings were indeed supported by a preponderance of the evidence.

Finally, Judge Moynihan declined to consider various other arguments that plaintiff presented for the first time on appeal.  He cited the familiar rule of Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), for the idea that arguments not raised below will ordinarily not be considered on appeal.

 

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