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Court of Appeals of Illinois, Second District
September 17, 2014
In re MARRIAGE OF TARA LINTA, Petitioner-Appellant, and WARREN LINTA, Respondent-Appellee
Page 567
Appeal from the Circuit Court of Kane County. No. 12-D-257. Honorable David P. Kliment and Kevin T. Busch, Judges, Presiding.
In postjudgment proceedings with respect to a divorce initially entered in Nevada with a judgment that incorporated a marital settlement agreement including a prevailing-party provision regarding attorney fees, and then the judgment was registered as an Illinois judgment, the trial court, after considering petitions brought by both parties, did not abuse its discretion in requiring each party to pay his or her own attorney fees, where the court could have concluded that neither party " prevailed" and section 502(b) of the Illinois Marriage and Dissolution of Marriage Act did not bind the court to follow the prevailing-party provision when the proceedings involved the care and custody of minors.
For APPELLANT: Robert D. Felker, Felker & Reganti, Chicago, IL.
No brief filed for appellee.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.
Page 568
[¶1] In 2011, a Nevada court entered a judgment that dissolved the marriage between petitioner, Tara Linta, and respondent, Warren Linta. The dissolution judgment incorporated a marital settlement agreement, which contained a prevailing-party provision with respect to attorney fees (prevailing-party provision). Thereafter, the parties and their minor children relocated to Illinois and the Nevada judgment was registered as an Illinois judgment. Following various petitions brought by both parties, the trial court denied petitioner's request for attorney fees pursuant to the prevailing-party provision. Petitioner now appeals, contending that the trial court erred in denying her request for fees. We affirm.
[¶2] The record reflects that, on August 1, 2011, the circuit court of Washoe County, Nevada, entered a judgment for dissolution of the marriage between petitioner and respondent. The judgment incorporated a marital settlement agreement, which included the prevailing-party provision: " In any action arising hereunder, or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney fees and costs."
[¶3] Thereafter, both parties moved to Kane County with their two minor children. On February 21, 2012, petitioner filed petitions in the trial court to enroll the judgment of the Nevada court, modify child support, and modify visitation. On April 12, 2012, the trial court entered an agreed order that enrolled and entered the Nevada judgment.
[¶4] On April 27, 2012, respondent responded to petitioner's child-support and visitation modification petitions, asking that the court deny them. On May 30, 2012, petitioner filed a petition for temporary child support, requesting that respondent increase his payments to 28% of his net income due to a wage increase.
[¶5] On June 11, 2012, the trial court ordered the parties to mediate the visitation issue. The parties reached an agreement through mediation on July 16, 2012. In the interim, respondent petitioned to remove the action to Nevada or have the trial court apply Nevada law to the pending petitions, pursuant to a removal and choice-of-law provision in the marital settlement agreement. Additionally, on July 9, 2012, respondent filed his response to the petition for temporary child support asking the court to deny petitioner's petition. The trial court requested briefs from both parties on the removal and choice-of-law issues.
[¶6] On July 27, 2012, petitioner filed a petition for an emergency order of protection against respondent, claiming that he had slapped one of the children, causing petitioner to fear for her safety and the safety of the children. The court denied
Page 569
the emergency order of protection but suspended respondent's visitation for one day and appointed a guardian ad litem ; the parties were ordered to evenly split the cost. On July 30, 2012, the court resumed the visitation schedule in the marital settlement agreement and ordered the parties to attend family counseling.
[¶7] On August 23, 2012, the trial court determined that Illinois law applied to the petitions for modification of child support and visitation. The trial court granted petitioner's petition for modification of child support. The trial court further ordered that the parties share equally in the cost of child care and ordered petitioner to submit a bill to respondent no later than the tenth day of each month or incur the total of that month's expenses. The trial court also ordered that the parties adhere to the visitation schedule agreed upon with the mediator. With the trial court's leave, both parties filed petitions for attorney fees with respect to the petition to enroll the Nevada judgment, the petition for an emergency order of protection, the petition to modify child support, the petition to modify visitation, and the removal and choice-of-law briefs.
[¶8] Thereafter, on January 11, 2013, respondent filed a petition to modify child support. The trial court granted respondent's petition on February 7, 2013. Respondent then filed an amended petition for attorney fees.
[¶9] On April 29, 2013, the trial court denied both petitioner's and respondent's respective petitions for attorney fees. The trial court found that the attorney fees were to be " offset in their entirety" and that " [e]ach party shall be responsible for their own attorney fees." Petitioner timely appealed.
[¶10] Before we address the merits, we note that respondent has not filed a response brief. However, the record is simple and the claimed errors are such that we can easily decide them without the aid of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976).
[¶11] Turning to the merits, petitioner's only contention in this appeal is that the trial court erred in denying her petition for attorney fees. Petitioner claims that the prevailing-party provision was binding on the trial court. Petitioner argues that, by denying an attorney-fee award, the trial court effectively vacated that provision from the marital settlement agreement. Petitioner further argues that the trial court abused its discretion in denying her petition for fees.
[¶12] With respect to the marital settlement agreement, section 502(b) of the Illinois Marriage and Dissolution of Marriage Act provides: " The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable." 750 ILCS 5/502(b) (West 2010). Marital settlement agreements are contracts, and thus the rules governing the interpretation of contracts apply. See In re Marriage of Murphy, 359 Ill.App.3d 289, 300, 834 N.E.2d 56, 295 Ill.Dec. 831 (2005). Generally, the primary obligation for the payment of attorney fees in a marriage-dissolution action rests on the party on whose behalf the services were rendered. In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 113, 993 N.E.2d 1062, 373 Ill.Dec. 503. An exception exists when a contract provides for an award of attorney fees. Mirar Development, Inc. v. Kroner, 308 Ill.App.3d 483, 488,
Page 570
720 N.E.2d 270, 241 Ill.Dec. 815 (1999). Contractual provisions for attorney fees must be strictly construed. Id.
[¶13] At the outset, we note that under Illinois law the prevailing-party provision is unenforceable as applied to issues related to the children. Petitioner is seeking to invoke the provision with respect to her petitions to modify child support and visitation. Section 502(b) expressly provides that marital settlement agreements are binding " except those providing for the support, custody and visitation" of children. 750 ILCS 5/502(b) (West 2010). Portions of a marital settlement agreement that relate to support, custody, and visitation of children are not binding on the trial court. In re Marriage of Ingram, 259 Ill.App.3d 685, 689, 631 N.E.2d 386, 197 Ill.Dec. 383 (1994).
[¶14] We find this court's holding in In re Marriage of Best, 387 Ill.App.3d 948, 901 N.E.2d 967, 327 Ill.Dec. 234 (2009), instructive. In Best, the parties' premarital agreement provided that " '[t]he parties acknowledge, understand and agree that in the event of any court proceeding of and concerning their marital relationship or dissolution thereof, that [ sic ] each party shall pay and be responsible for payment of their own respective attorney fees and all ancillary costs incurred in connection with any such proceeding.'" Id. at 949. We found that the fee-shifting ban violated Illinois public policy requiring that a child's right to support may not be adversely affected by a premarital agreement. Id. at 954. We emphasized that the law severely limits on public-policy grounds the enforceability of contracts affecting the custody and support of children. Further, Illinois law per se rejects premarital agreements that impair child-support rights or specify custody. Id. at 951.
[¶15] In reaching our holding in Best, we looked beyond Illinois to In re Marriage of Ikeler, 161 P.3d 663 (Colo. 2007), for guidance on whether fee-shifting bans violate public policy. Best, 387 Ill.App.3d at 952. Ikeler noted that a fee-shifting ban could harm children by " substantially impair[ing]" the lesser-earning spouse's ability to effectively litigate issues involving children. Ikeler, 161 P.3d at 670-71. The inability to effectively litigate issues involving the best interests of children would, in turn, negatively impact the court's ability to assess the best interests of children. Id. In Best, we adopted this reasoning in determining that fee-shifting bans in premarital agreements violate Illinois public policy. Best, 387 Ill.App.3d at 954.
[¶16] The Ikeler court's reasoning is equally persuasive as to a prevailing-party provision in a marital settlement agreement. As with attorney-fee bans, a lesser-earning spouse seeking to litigate child-related issues might be hesitant to bring a petition, even when doing so would be in the children's best interests. Specifically, that spouse could fear being unsuccessful and having to pay not only his or her attorney fees, but also the other spouse's attorney fees pursuant to a prevailing-party provision. This, in turn, would negatively impact a court's ability to assess the children's best interests. Courts have a responsibility to protect the best interests of the children in child-support matters; to this end, courts are not bound by the parties' agreements as to child support, and settlement agreements may not be made nonmodifiable in that regard. In re Marriage of Wittland, 361 Ill.App.3d 785, 788, 838 N.E.2d 308, 297 Ill.Dec. 821 (2005). We note that section 508
Page 571
still allows a court to order any party to pay a reasonable amount for his own or the other party's costs and attorney fees, after considering the financial resources of the parties. See 750 ILCS 5/508(a) (West 2010). However, we hold that, as a matter of Illinois public policy, a marital settlement agreement cannot preordain attorney fees to a prevailing party in matters related to the best interests of children.
[¶17] We now turn to petitioner's claims for attorney fees pursuant to the prevailing-party provision as it relates to the agreed order enrolling the Nevada judgment in Kane County, the issue of removal to Nevada, and the trial court's choice-of-law ruling.
[¶18] We find City of Elgin v. All Nations Worship Center, 373 Ill.App.3d 167, 868 N.E.2d 385, 311 Ill.Dec. 385 (2007), to be persuasive on the issue of petitioner's claimed victory in enrolling the Nevada judgment in Kane County by way of an agreed order. In City of Elgin, this court addressed a prevailing-party provision in a contract and found against All Nations, which sought attorney fees pursuant to an agreed order. The agreed order allowed All Nations to continue conducting church services in an area that did not permit a church, pursuant to a zoning ordinance. Id. at 168. The trial court denied the fee award and we affirmed. We determined that the agreed order preserved the status quo rather than altered the parties' legal relationship. Id. at 170. We emphasized that to hold that a party who wins any type of victory during the course of litigation, no matter how fleeting, is entitled to attorney fees would expand the definition of " prevailing party" beyond all meaning. Id.
[¶19] Similarly, here, petitioner is seeking an award pursuant to an agreed order, which enrolled the Nevada judgment in Kane County. This order operated to preserve the status quo and did not alter the legal relationship between the parties. Moreover, with respect to the choice-of-law and removal issues, though the trial court ruled in petitioner's favor on some issues, those favorable rulings do not necessarily create a basis for a fee award. When a dispute involves multiple claims, and both parties have won and lost on different claims, it is appropriate to find that neither party is the prevailing party and that an award of attorney fees to either would be inappropriate. See Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill.App.3d 1023, 1034-35, 715 N.E.2d 804, 240 Ill.Dec. 117 (1999) (holding that the trial court did not err in denying an attorney-fee request where the parties " both won and lost on claims" before the trial court). Here, while petitioner was successful in the ruling denying respondent's petition to apply Nevada law and remove to Nevada, all other rulings resulted in the agreed order or grants and denials on some issues for each party.
[¶20] In sum, we find that petitioner is not entitled to attorney fees based on the prevailing-party provision. The language of section 502(b) does not bind the trial court to the settlement agreement for issues involving the care and custody of minors. 750 ILCS 5/502(b) (West 2010). In addition, we reject petitioner's assertion that the trial court erred as a matter of law in its interpretation of the prevailing-party provision. Rather, whether and in what amount to award attorney fees was within the trial court's discretion and its decision will not be disturbed on review absent an abuse of that discretion. In re Estate of Callahan, 144 Ill.2d 32, 43-44, 578 N.E.2d 985, 161 Ill.Dec. 339 (1991). Because the trial court could have concluded that neither party " prevailed," its determination to offset the attorney fees in their
Page 572
entirety between both parties and to make each party responsible for his or her own attorney fees was not an abuse of discretion.
[¶21] For the reasons stated, we affirm the judgment of the circuit court of Kane County.
[¶22] Affirmed.
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July 3, 2007
On appeal from a Final Administrative Decision of the State Board of Education, No. 33-05.
Argued March 6, 2007
Before Judges Payne and Graves.
Thomas Wachendorf appeals from a final decision of the State Board of Education, pursuant to N.J.S.A. 18A:6-10, to dismiss him as a tenured teacher at Mountainview Correctional Facility for conduct unbecoming a public employee following his arrest for eluding, N.J.S.A. 2C:29-2b, resisting arrest, N.J.S.A. 2C:29-2a, and obstructing the administration of law, N.J.S.A. 2C:29-1, and his diversion into a county pre-trial intervention (PTI) program, which was successfully completed.
On appeal, Wachendorf argues that his conduct, on May 2, 2004, in failing to stop when directed by the police did not constitute eluding, and that his subsequent conduct upon arriving at his home and during his arrest did not constitute resisting arrest or obstructing the administration of law. Wachendorf argues further that the factual findings of the ALJ, rendered after a hearing and a review of the police videotape of the pursuit, were not sufficient to support the conclusion that Wachendorf's conduct was "unbecoming" and that the conduct constituted just cause for the termination of his employment.
The record includes, among other evidence, the testimony of two police officers, an independent witness employed as a Mercer County assistant prosecutor who observed substantially all of the relevant events, and a videotape of the police's pursuit of Wachendorf from the time that police lights and air horn were activated to Wachendorf's arrest. That evidence, credited by the administrative law judge who conducted a contested hearing in the matter, disclosed that, upon determining that Wachendorf was driving a vehicle that had not been registered for nine months, police officer Christopher DeWire determined to make a motor vehicle stop. However, Wachendorf did not heed the signal to pull over, but instead, continued driving, albeit within the speed limit, for a distance of approximately two miles, only stopping after turning into his driveway, continuing its full length, and reaching its end. The pursuit lasted for approximately five minutes, from three minutes and twenty seconds after ten o'clock in the morning, when the videotape was activated as DeWire turned on the police car's light bar, until eight minutes and eight seconds after ten, when the pursuit finally ended. At four minutes and three seconds after ten, DeWire activated his air horn, and at four minutes and ten seconds, he activated his siren. The siren, punctuated by the air horn, sounded continuously thereafter. Throughout much of the pursuit, the vehicle driven by DeWire was followed by a back-up, unmarked, vehicle, with activated wig-wag lights, driven by Sergeant Scott Crater. Crater's vehicle was followed by that of the assistant prosecutor, an independent observer who happened upon the scene and, upon determining that an eluding appeared to be in progress, offered to serve as a witness to the pursuit and arrest.
The route traveled consisted of country roads, punctuated by two stop signs. Wachendorf stopped at the first only after clearing the center of the intersection. He appropriately stopped at the second. During the course of the pursuit, two cars, proceeding in the opposite direction, pulled off the road to permit the police cars to pass. Wachendorf apparently disregarded the significance of the motorists' actions. Although the roads upon which Wachendorf traveled, in part, had a high crown and no shoulder, frequent driveways and other spaces existed at which he could have stopped with safety. Moreover, after turning into his lengthy gravel driveway, Wachendorf did not immediately stop, but instead proceeded its full length, a process requiring approximately one-half of a minute.
Once stopped, Wachendorf did not exit his vehicle as DeWire commanded on four separate occasions. After sitting for a period of time, and then slightly opening the door without exiting -- a period of essential inactivity spanning seventeen seconds -- Wachendorf was finally forceably removed from his car by DeWire and Crater as he attempted to lean in the opposite direction toward the car's passenger seat. Even after removal, Wachendorf resisted arrest, curling on his side in a fetal position on the ground and then vociferously objecting to police commands that he lie on his stomach. Force was required to secure Wachendorf with handcuffs.
Thereafter, Wachendorf resisted the police's attempt to place him in DeWire's cruiser, attempting to walk in a different direction, refusing to be placed in the vehicle and, once forceably seated, refusing to place his feet in the car. Wachendorf also declined to provide pedigree information, demanding throughout the arrest process to see his lawyer, who was allegedly inside the house. Wachendorf's lack of cooperation continued at the police station, where, among other things, he refused to identify his employer.
At the hearing, Wachendorf gave a different version of the events, claiming that he was unaware of the presence of the police until shortly before he arrived at his driveway, because his stereo, air conditioning and loud muffler blocked the noise of the siren, and because his rear-view mirror had been knocked out of alignment. He stated additionally that he was afraid, as the result of his prior (apparently valid) arrest by DeWire as the result of an outstanding motor vehicle infraction, to pull over until he reached the safety of his home, that he did not hear the police's command that he exit his car, but that after being pulled from it, he acted in an entirely cooperative and non-confrontational manner. Wachendorf's testimony, along with that of his corroborating witness, his brother, was not credited by the administrative law judge, who found the testimony to be incredible and inconsistent with evidence provided by the video.
At the time of the events in issue, Wachendorf was a tenured teacher I at the Mountainview Youth Correctional Facility, where he prepared students ranging in age from eighteen to thirty to take the GED exam. His eight-year record at the school was hitherto unblemished, as was a prior five-year period as a public school teacher in Newark.
In the course of his employment, Wachendorf had been provided with Department of Corrections Human Resources Bulletin 84-19, dated April 3, 2000, receipt of which he acknowledged. The bulletin required that: "Employees who are summoned, arrested or incarcerated as a result of a crime or an offense as defined by N.J.S.A. 2C: Criminal Justice Code of New Jersey, must advise their superior as soon as possible, but not more than 48 hours from the date of the summons, arrest or incarceration."
The hearing record indicates that the first notification to Mountainview of Wachendorf's arrest was received as the result of a call from the Readington police on May 10, eight days after the arrest occurred, although on May 3, the facility had been notified by Wachendorf's brother that Wachendorf was ill and would not be reporting to work, and it received further such daily notifications throughout the week of May 3. Wachendorf claimed that he was incapacitated as the result of injuries inflicted by the police in the course of the arrest,*fn1 but had instructed his attorney, whom he visited on May 4, to inform Mountainview of the events. The record reflects that the attorney's call was received on May 12.
At the hearing, Wachendorf admitted that it is important to exemplify law abiding behavior to inmates to help with their rehabilitation.
Wachendorf was charged with the motor vehicle offenses of driving an unregistered car, failing to produce evidence of insurance, and failing to yield to an emergency vehicle. On July 9, 2004, Wachendorf waived indictment for eluding, resisting arrest and obstructing the administration of law and was diverted into the Hunterdon County PTI program.
On July 21, 2004, a Certificate of Determination was issued by the Department of Education, charging Wachendorf with Conduct Unbecoming a Teacher based upon his arrest and failure to report the arrest to his supervisor. The case was transmitted to the Office of Administrative Law as contested, and hearings were conducted on December 1, 2004 and January 4 and February 4, 2005. The ALJ issued his initial decision on May 9, 2005, sustaining the charges and recommending dismissal. On July 14, 2005, the Commissioner of Education adopted the ALJ's initial decision and, upon appeal, on February 1, 2006, that decision was affirmed by the Board of Education for the reasons expressed by the Commissioner.
Our review of the decision of the Board of Education is limited. As stated by the Supreme Court in Matter of Musick:
Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy. Although sometimes phrased in terms of a search for arbitrary or unreasonable action, the judicial role is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (1963). [Musick, supra, 143 N.J. 206, 216 (1996).]
Our review of the record in this case, in light of Musick's standards, demonstrates no reason for reversal. Contrary to Wachendorf's arguments, the record, and particularly the videotape, which we have reviewed on numerous occasions, provides ample evidential support, apart from considerations relating to Wachendorf's entry into PTI,*fn2 for the findings of fact made by the ALJ and adopted thereafter with respect to Wachendorf's patent disregard for lawful authority throughout the course of the police's pursuit, arrest, and subsequent efforts to transport Wachendorf for booking. Wachendorf's further disregard of established procedures for reporting his arrest to his employer was also appropriately demonstrated by a preponderance of the credible evidence.
As stated in the Commissioner's opinion:
Like the ALJ, the Commissioner is persuaded that the respondent's explanations for his actions lack substance. He offers a curious concatenation of events to explain his behavior which, the Commissioner observes, lack persuasive evidential corroboration in the within record. Rather what is abundantly apparent is that respondent's deportment throughout this incident evidences a total disregard and disrespect for the law and the authority of law enforcement officials. Such behavior is directly contrary and inimical to the expectations placed on teaching staff members and, undeniably, conduct unbecoming a teacher, most particularly for an educator in a corrections facility which is charged with the responsibility of "provid[ing] an environment for incarcerated persons which encourages rehabilitation and reintegration into the community" (N.J.A.C. 10A:1-1.1(6)) as law abiding citizens.
Further, we find no basis for reversal in Wachendorf's arguments that his conduct was insufficient to constitute conduct unbecoming a teacher and that dismissal was too severe a remedy. We conclude instead that the Board of Education, in reaching a contrary determination through its adoption of the Commissioner's opinion, properly executed the Legislature's self-evident goal, in enacting N.J.S.A. 18A:6-10, of ensuring the fitness of the State's teachers for their assigned tasks. A person exhibiting the disregard for lawful authority manifested by Wachendorf throughout the videotape of his conduct and by other evidence of his conduct, could reasonably be found unfit to teach incarcerated young people whose own disregard for the law was a primary correctional focus. As a consequence, we affirm the determination of the Board of Education on the basis of its decision adopting the thoughtful and comprehensive opinion of the Commissioner of Education.
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October 29, 2007
NORTHVALE BOARD OF EDUCATION, PLAINTIFF-RESPONDENT,v.NORTHVALE EDUCATION ASSOCIATION AND PATRICIA LENART, DEFENDANTS-APPELLANTS.
On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
[NOTE: This is a companion case to Pascack Valley Regional High School Board of Education v.Pascack Valley Regional Support Staff Association, A-96-05, also filed today]
The members of the Supreme Court being equally divided, the judgment of the Appellate Division is affirmed.
Plaintiff Northvale Board of Education ("the Board") hired Patricia Lenart to work as a part-time secretary and part-time social studies teacher. The parties executed an employment agreement from October 14, 2003, to June 30, 2004. The contract provided, in part, that either party could terminate it on sixty (60) days written notice. On receiving complaints from parents and students concerning Lenart's performance as a teacher and from parents, teachers, and other secretaries regarding her work as a secretary, Eugene Harris, the school principal, observed Lenart in the classroom. He rated her satisfactory in only two of twenty-five evaluative categories. After meeting with Lenart, Harris recommended to the superintendent of schools that Lenart be terminated pursuant to the 60 days' notice provision in the employment agreement. The superintendent approved the recommendation. Lenart was advised that her last day of employment would be January 23, 2004.
Defendant Northvale Education Association ("the Association"), the collective bargaining representative for teachers and secretaries employed by the Board, filed a grievance on Lenart's behalf. It asserted that she had been discharged without "just cause" in violation of the applicable Collective Negotiations Agreement (CNA) and that the action was subject to the grievance procedure and arbitration as set forth in the CNA. The grievance was denied, and the Association requested that the matter be submitted to arbitration. The Board then commenced an action in the Chancery Division to enjoin the arbitration. In a written decision, the trial court held that the grievance and arbitration procedures in the collective bargaining agreement did not apply to the mid-contract termination of a non-tenured employee and enjoined the arbitration.
The Association and Lenart appealed the order enjoining arbitration. In an unpublished per curiam opinion, the Appellate Division affirmed the order restraining arbitration. The panel found no inconsistency between the CNA and the notice provision of the employment agreement, concluding that the agreements operated independently of each other and that the Board could choose to terminate the employee on 60 days' notice without needing to demonstrate "good cause" or "just cause." In short, the grievance and arbitration provisions of the CNA did not apply to the Board's action and neither did binding arbitration.
The Supreme Court granted the Association's petition for certification and also granted leave to the New Jersey Education Association and the New Jersey School Boards Association to appear as amici curiae.
HELD: The members of the Supreme Court being equally divided, the judgment of the Appellate Division is AFFIRMED.
JUSTICE HOENS filed a separate, CONCURRING opinion, in which JUSTICES LaVECCHIA and RIVERA-SOTO join, stating that the matter requires the Court to consider circumstances it has left unanswered in recent decisions relating to non-tenured school employees whose employment rights are governed in part by individual contracts and in part by collectively negotiated agreements. In particular, the issue is whether such employees nonetheless have the right to pursue grievance arbitration if their contracts are terminated in the middle of a contract term.
When the parties have not included any provision in the collective negotiation agreement that clearly creates a right to challenge a mid-term termination through a grievance proceeding, the terms of the individual contract, otherwise in accordance with applicable statutory provisions, are enforceable as written. The Board's decision to terminate Lenart's contract in accordance with the terms of her separate annual contract of employment was in reality a disciplinary action and therefore within the grievance and arbitration clause of the CAN. It was a matter of substantive arbitrability and thus was properly for the judge, and not the arbitrator, to decide.
Although the individual contract permitted the Board to discharge Lenart on sixty days' notice without cause, there is no interference between that term of her contract and the CNA's just cause language. Read in harmony, the CNA would permit discharge, based on an assertion of just cause, without any notice to the employee. The individual contract, on the other hand, would permit termination of the contract, without any assertion of cause, but only on sixty days' notice to the employee. Given the absence of a statutory right to arbitrate a mid-contract termination on notice, school boards have the inherent power to terminate a non-tenured employee pursuant to the notice terms of an individual employment contract without providing the employee a hearing or an opportunity to arbitrate.
The language of the CNA makes plain that neither the Board nor the Association contemplated that a grievance procedure would apply to a termination of a contract in the middle of its term. To conclude otherwise would, in effect, be creating for the employee a contract better than the one negotiated.
JUSTICE LONG filed a separate, DISSENTING opinion, in which JUSTICES ALBIN and WALLACE join, stating that Lenart was terminated for cause and that her termination was therefore facially governed by the just cause provision of the CNA, which provides for an arbitration remedy. There is a statutory presumption in favor of public sector arbitration. Any approach that favors an individual contract over a conflicting and superseding collective bargaining provision undermines the goals of collective negotiations and cannot be countenanced. At the very least, doubt has arisen regarding the scope of arbitrability. That doubt must be resolved in favor of arbitration.
The judgment of the Appellate Division is AFFIRMED.
JUSTICE HOENS filed a separate concurring opinion in which JUSTICES LaVECCHIA and RIVERA-SOTO join. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES ALBIN and WALLACE join.
Per curiam.
Argued October 30, 2006
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.
JUSTICE HOENS filed a separate, concurring opinion, in which JUSTICES LaVECCHIA and RIVERA-SOTO join. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES ALBIN and WALLACE join.
JUSTICE HOENS, concurring.
In November 2003, Patricia Lenart, a part-time teacher and part-time secretary at Northvale High School, was advised that the Superintendent of Schools had approved a recommendation to terminate her one-year employment contract in accordance with its sixty-day notice provision. Defendant Northvale Education Association filed a grievance on her behalf, which was denied by plaintiff Northvale Board of Education. When defendant attempted to submit the matter to arbitration, plaintiff filed a complaint in the Chancery Division. There, the court entered an order enjoining arbitration, which order was affirmed by the Appellate Division.
This matter requires us to consider circumstances we have left unanswered in our recent decisions relating to non-tenured school employees whose employment rights are governed in part by individual contracts and in part by collectively negotiated agreements. In particular, we must address whether, although the individual employment contracts may be terminated on notice, and although such employees have no right to the renewal of their individual contracts, they nonetheless have a right to pursue grievance arbitration if their contracts are terminated in the middle of a contract term.
In our view, where the parties have not included any provision in the collective agreement that clearly vests an employee subject to an individual employment contract with a right to challenge a mid-term termination, on notice, of the contract through a grievance proceeding, the terms of the individual contract, otherwise in accordance with applicable statutory provisions, are enforceable as written.
The facts are not in dispute. Plaintiff is a public school board of education and, therefore, a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39 (the Act). Defendant is a public employee representative under the Act, performing as "the exclusive and sole representative for collective negotiations concerning the terms and conditions of employment" for certain school employees, including teaching staff and secretaries.
Patricia Lenart is a union member whose rights are governed by the collective negotiations agreement (CNA) entered into by defendant. In October 2003, plaintiff hired Lenart to work as a part-time secretary for the school principal, Eugene Harris, and as a part-time social studies teacher. Because she was a non-tenured employee, Lenart, in accordance with plaintiff's previously promulgated policy, signed an individual employment contract. That contract contained the following termination-on-notice provision:
The parties hereto covenant and agree that anything to the contrary notwithstanding this contract may at any time be terminated by either party giving to the other sixty (60) days notice in writing of intention to terminate the same, but in the absence of any such notification this contract shall run for the full term stated above.
Approximately one month after Lenart was hired, Harris and the Superintendent of Schools began receiving complaints from parents and students about her teaching abilities. At the same time, plaintiff began to receive complaints from parents, teachers, and other secretaries concerning Lenart's performance as a secretary. As a result, Harris met with Lenart on November 14, 2003, to discuss the complaints.
On November 21, 2003, Harris sat in and observed Lenart teach a social studies lesson. Subsequently, he completed a Teacher Observation Report form. Of the twenty-five*fn1 relevant evaluation criteria specified on that form, Harris rated Lenart "unsatisfactory" in sixteen areas and determined that she "need[ed] improvement" in seven other categories. Her work, therefore, was "satisfactory" in only two of the twenty-five categories assessed. Among other deficiencies, Harris noted that Lenart was not aware that he was even present in the classroom for the first twelve minutes of the class because she was "seated with her back to the class doing her own work." He also observed that Lenart did not begin the day's lesson until more than half of the class period had elapsed, that she failed to use any "graphic instructional device[s]," had no lesson objective, and did not assign the students any homework.
That afternoon, Harris discussed his observations with Lenart and provided her with a "full verbal evaluation." In response, Lenart told him that she disagreed with his evaluation and thought that the class "went well." Harris immediately advised Lenart that he would recommend to the Superintendent that she be replaced. Three days later, on November 24, 2003, the Superintendent invoked the sixty-day termination-on-notice provision in Lenart's individual employment contract. Two days later, after plaintiff had approved the Superintendent's recommendation that Lenart's contract be terminated, the Superintendent notified Lenart that as of January 24, 2004, her employment would be terminated because of "serious deficiencies in [her] performance as a teacher and as a secretary."
Lenart was informed that during the sixty-day notice period, she would be able to continue to perform her duties as a secretary but that her teaching duties would be altered. Lenart objected to the change in her teaching assignment and was, as a result, essentially placed on paid leave pending the end of the notice period.
On January 20, 2004, defendant sent a notice to Harris that it was filing a grievance on Lenart's behalf. The grievance asserted that her termination was an improper disciplinary dismissal because the Board lacked "just cause" as required by the CNA. When Harris did not respond, defendant invoked the next stage of the grievance process by sending its notice of the grievance to the Superintendent. Defendant again asserted that the termination was a disciplinary action without just cause.
After considering the grievance, the Superintendent declined to alter his original recommendation that Lenart should be terminated. In response, defendant pursued the matter by requesting that plaintiff conduct a grievance hearing. After doing so, and after deliberating, plaintiff decided not to reverse the termination decision. Subsequently, consistent with the CNA, defendant filed a request with the Public Employment Relations Commission (PERC) on April 20, 2004, for arbitration of the matter.
On November 17, 2004, plaintiff filed a verified complaint in the Chancery Division, seeking an order to show cause why arbitration should not be enjoined. Plaintiff argued that Lenart's grievance was not arbitrable because she had no contractual right or other entitlement to continued employment after the Board invoked the termination-on-notice provision of her individual employment contract. The PERC-assigned arbitrator adjourned the arbitration hearing pending resolution of plaintiff's complaint.
The Chancery Division judge granted plaintiff's application to restrain arbitration, finding that the CNA did not require plaintiff to afford non-tenured employees terminated mid-contract the benefit of grievance procedures. Both defendant and Lenart appealed.
In an unpublished opinion, the Appellate Division affirmed, finding that the termination of Lenart's contract was neither a "discharge" nor a form of "discipline" under the CNA and therefore did not require either a showing of just cause or access to grievance procedures. The court found that "although the Board acted based on its determination that Lenart's performance . . . was deficient, and afforded [her] the opportunity to be heard . . ., it did not discharge her for inadequate performance but rather exercised a clearly enunciated contractual right to terminate [her individual employment agreement]."
The appellate panel further concluded that the termination-on-notice provision of the individual employment contract did not conflict with the just cause provision of the CNA, or diminish any of the rights that Agreement conferred. Rather, the panel found that plaintiff had the option of terminating an employee with notice, or discharging an employee without notice if just cause had been established. Using this reasoning, the panel found no conflict between the two agreements and concluded that Lenart had no right to arbitrate her termination.
We granted defendant's petition for certification, 186 N.J. 257 (2006), and thereafter granted leave to the New Jersey Education Association and the New Jersey School Boards Association to appear as amici curiae.
Our analysis of the issues raised in this matter must begin with a brief explanation of the statutory framework in which the parties have proceeded. We start, then, by noting that the Legislature has established the framework for employment rights of school personnel by enacting Title 18A. Included within that enactment are a number of provisions relating to rights of employees who are subject to employment contracts.
We have previously considered the relationship between the rights conferred by and protected under the CNA and the rights governed by individual employment contracts. See Camden Bd. of Educ. v. Alexander, 181 N.J. 187 (2004). In particular, we have addressed whether, absent specific language to the contrary in a CNA, a school board's decision not to renew individual contracts at the end of their ordinary terms could be arbitrable. See id. at 190.
As we have recognized, the traditional practice of offering separate, annual employment contracts to non-tenured school employees is long-standing. See Troy v. Rutgers, 168 N.J. 354, 372-76 (2001) (discussing mutual operability of individual employment contracts and collective negotiations agreements); Mozier v. Bd. of Educ. of Cherry Hill, 450 F. Supp. 742, 747-48 (D.N.J. 1977). Indeed, Title 18A acknowledges this practice, through its reference to "non-renewal" as permissible and through its creation of rights to be heard that are unlike grievance and arbitration rights. See N.J.S.A. 18A:27-4.1b. In Camden, supra, we rejected the assertion that a decision not to renew individual contracts at the end of their ordinary terms, although based on grounds that would also support imposition of discipline, is grievable. See Camden, 181 N.J. at 199. We there considered the specific language of the CNA, the language of the particular individual contracts, and the policies that support both collectively negotiated rights and individual contract rights. Id. at 196-201. In that context, we found no merit in the employees' argument that the decision not to renew the contracts, at the end of their term, was a pretext for discipline that gave rise to a grievance or an arbitration right. See id. at 201.
At the same time, however, the matter before us also raises questions relating more generally to labor arbitration. It therefore requires that we reiterate some of the general principles governing labor arbitration in the public school context. See Bd. of Educ. of Borough of Alpha v. Alpha Educ. Ass'n, 190 N.J. 34, 41-43 (2006). We have previously recognized the long-established principle*fn2 that "[a]rbitration is a favored means of resolving labor disputes." Id. at 41-42 (citing State v. Int'l Fed'n of Prof'l & Technical Eng'rs, Local 195, 169 N.J. 505, 513 (2001); Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 149 (1995)).
Moreover, in Alpha, supra, we pointed out that because "[t]he aim of arbitration is to provide the final disposition of a dispute in a speedy and inexpensive manner[,] . . . judicial review of an arbitrator's decision is very limited, and the arbitrator's decision is not to be cast aside lightly." Id. at 42 (citing Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981)). While commenting that judicial review of arbitration decisions is limited, we noted that "[i]n the public sector, the scope of review in matters of interpretation is confined to determining whether the interpretation of the contractual language is reasonably debatable." Ibid. (quoting County Coll. of Morris Staff Ass'n v. County Coll. of Morris, 100 N.J. 383, 390-91 (1985)).
Nevertheless, we continued to reinforce our earlier holdings that, in determining whether a particular dispute is arbitrable, we will adhere to the traditional distinction between questions of substantive arbitrability, which are to be resolved by a court, and questions of procedural arbitrability, which generally fall within the scope of the arbitrator's authority. Id. at 42-43. In Alpha, supra, all parties agreed that the particular dispute fell within the scope of the arbitration clause, with the result that we would defer to the arbitrator's decision "so long as it is 'reasonably debatable.'"
Id. at 43 (quoting Int'l Fed'n of Prof'l & Technical Eng'rs, supra, 169 N.J. at 514).
In this case, of course, the question is whether, in the first instance, the matter is within the scope of the CNA's arbitration provision at all. More to the point, in this case, we confront the question, left open in Camden, supra, of whether the termination of a contract in the middle of its term for reasons that might otherwise give rise to discipline falls within the provisions of the CNA.
With these considerations in mind, we turn to an explanation of the terms of the various agreements that inform our analysis.
Plaintiff and defendant entered into a collective negotiations agreement*fn3 for the period July 1, 2001 to June 30, 2004. The CNA includes several provisions that are relevant to this dispute. The first, found in Article III, reserves to plaintiff, in the first instance, a variety of rights relating to employees and their terms of employment. In particular, Article III provides as follows:
The Board reserves to itself sole jurisdiction and authority over matters of policy and retains the right, subject only to the limitations imposed by language of laws and regulations . . . (b) to hire, promote, transfer, assign and retain employees in positions in the school district and to suspend, discharge or take other disciplinary action against employees; (c) to release employees from duty because of lack of work or for other legitimate reasons . . . and (h) the aforementioned rights and authority shall be limited by the terms of the contractual relationship between the Board and the Northvale Education Association, past practice and applicable law.
In addition, however, the CNA affords rights to the employees, which include a limitation on discipline that plaintiff may impose. In particular, Article IV provides as follows:
B. Just Cause Provision - No employee shall be discharged, disciplined, reprimanded, [or] reduced in rank or compensation, without just cause. Any such action asserted by the Board, or any agent or representative thereof, shall be subject to the grievance procedure herein set forth. Notwithstanding the breadth of that provision, however, the CNA specifically recognizes the existence and the enforceability of individual contracts of employment, providing in Article VII as follows:
A. An individual contract between the Board and an individual employee, heretofore or hereafter executed, shall be subject to and consistent with the terms and conditions of this Agreement. If an individual contract contains any language inconsistent with this Agreement, this Agreement during its duration shall be controlling.
At the same time, as a part of its description of the process relating to grievances and arbitration in Article V, the CNA includes the following definition:
The term "grievance" means a complaint by any employee, group of employees or the Northvale Education Association over the application, interpretation or violation of a policy, agreement or administrative decision affecting the terms and conditions of employment of said employee or group of employees.
The term "grievance" and the procedure relative thereto shall not be deemed applicable in the case of the failure or refusal of the Board to renew the contract of a non-tenured employee.
Finally, Article XVI of the CNA includes an integration clause that provides as follows:
E. Closure
This Agreement represents and incorporates the complete and final understanding and settlement by the parties of all issues which were or could have been the subject of negotiations. During the term of this Agreement, neither party will be required to negotiate with respect to any such matter, whether or not covered by this Agreement, whether or not within the contemplation of either or both of the parties at the time they negotiated.
The CNA was not negotiated in a vacuum. Indeed, its reference to past practices makes plain that the parties were aware of and took into account existing policies promulgated by plaintiff. Those policies therefore must also bear on our analysis. In addition to the rights and responsibilities set forth in the CNA, we consider several of those policies to be relevant.
In September 1998, plaintiff adopted policies relating to contract employees. Policy 3124, for example, required all non-tenured members of the teaching staff to sign an individual contract with "a term of not more than one year" and specified the matters to be included in such contracts. Similarly, Policy 4124 required that all other non-tenured school employees sign an individual employment contract of like term, which was required to include particular provisions relevant to those employees.
Significant to our consideration of the issues before us, however, in September 1998, plaintiff also adopted specific policies relating to termination of those individual contracts of employment. Policy 3143, relating to non-tenured members of the teaching staff, provides in relevant part as follows:
The Board of Education will enter a contract with each non-tenured teaching staff member providing, in part, for the termination of employment by either party on proper notice in accordance with Board Policy No. 3124.
The Board may dismiss a non-tenured teaching staff member when dismissal is in the best interest of the school district. Termination notice will be duly given in writing and will state the reason therefor.
However, the Board reserves the right to terminate a non-tenured employee without notice when sufficient cause warrants.
The Board will determine whether to permit an employee to continue to perform services during the period between the giving of notice and the date of termination.
The language of the policy relating to non-tenured members of the non-teaching support staff is both somewhat broader and more specific in scope. Policy 4140, setting forth the policy on termination of those employees, provides in relevant part as follows:
The Board may terminate the employment of [a non-tenured support staff member] for incompetency, immorality, unfitness for service, insubordination, reduction in force, or other good cause. Any notification of termination for cause will include a full statement of the reasons for the dismissal on notice duly given a nonprobationary employee.
The Board may terminate an employment contract with a non-tenured support staff member only upon the recommendation of the Superintendent . . . The Board may temporarily suspend an employee with or without pay and without notice when his or her continued services may be inimical to the interests of pupils.
Because Lenart was employed both as a member of the non-tenured teaching staff and as a non-tenured support staff member, both of these policies must be considered in our analysis.
It is only in light of the long-standing policies promulgated by plaintiff relating to its rights to terminate or dismiss employees subject to individual contracts that we can harmonize the provisions of those contracts with the CNA and, more important, with the statutory rights relating to school employees. For it is only by recognizing the significance of those pre-existing policies that the various expressions by the parties of rights and responsibilities can be understood.
First, nothing in the statutory pronouncements of the Legislature confers an arbitration right on an employee who is subject to an individual contract. On the contrary, the relevant statute draws a sharp distinction between non-tenured members of the teaching staff who are not renewed and those who are discharged for cause. As to the latter, the local Board of Education is required to notify the State Board of Education "whenever a non-tenured, certificated employee is dismissed for cause, and the State board shall maintain a list . . . [of such employees] and the reason for the dismissal for cause."
N.J.S.A. 18A:16-1.3. The statute continues by providing that should a person who is on that list seek employment with another school board, the information "shall" be revealed to the prospective employer. Ibid.
However, the statute specifically provides that non-tenured members of the teaching staff whose contracts are simply not renewed shall not be included on the list. Ibid. Therefore, we can only conclude that the Legislature was both aware of the prevalence of contracts*fn4 for non-tenured employees, and aware of the differences between a termination pursuant to the terms of such a contract and a termination for cause. Only the latter would require notification of the State Board and disclosure to potential future employers.
As we have previously held, our duty is to discern whether the parties negotiated about a term and came to an agreement on it or not. As we have observed, "[i]n this public-sector employment dispute, a court should not deliver by fiat what was not obtained through negotiation." Camden, supra, 181 N.J. at 200-01. In this regard, the CNA included several provisions that are directly relevant to our analysis. First, the CNA specifically reserved to plaintiff significant rights relating to hiring, promoting, transferring and retention of employees. Plaintiff specifically reserved its rights by reference to its policies, which themselves permit it to terminate any non-tenured teaching staff member "when dismissal is in the best interest of the school district." The same provision of the CNA gave plaintiff broad rights relating to suspension or discharge of employees. At the same time, the CNA recognized the right of the plaintiff to enter into contracts of employment with employees otherwise covered by its terms,*fn5 and affords those contracts recognition to the extent not inconsistent with the provisions of the CNA.
Second, and a key distinction here, the CNA in issue also included a specific definition of the scope of the grievance remedy. In particular, the CNA defines grievance to mean a complaint by an employee, group of employees, or the Association, "over the application, interpretation, or violation of a policy, agreement or administrative decision affecting the terms and conditions of employment of said employee or group of employees." According to the CNA, moreover, the term "grievance" does not apply in the case of the Board's refusal to renew the contract of a non-tenured employee. The narrow definition of what constitutes a grievance, however, in the context of the previously known policies promulgated by plaintiff concerning its right to terminate non-tenured employees, makes it plain that the parties did not contemplate that the grievance procedure would apply to a termination of an individual employment contract in the middle of its term.
The language of the CNA limits the scope of matters subject to arbitration in a significant way. Indeed, the limitation is particularly important because "[t]he duty to arbitrate springs from contract, and the parties can only be compelled to arbitrate those matters which are within the scope of the arbitration clause of their contract." Bd. of Educ. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J. Super. 379, 384 (App. Div. 1990), aff'd, 126 N.J. 300 (1991). The issue about whether plaintiff's decision to terminate Lenart's contract in accordance with the terms of her separate annual contract of employment was in reality a disciplinary action and therefore within the grievance and arbitration clause of the CNA was a matter of substantive arbitrability and thus was properly for the judge, and not the arbitrator, to decide.
Finally, however, although the individual contract permitted plaintiff to discharge Lenart on sixty days' notice without cause, we see no interference between that term of her contract and the CNA's just cause language.*fn6 In light of the significant disadvantage to her that would follow were she to grieve her dismissal without success and therefore be included in the registry of teaching staff dismissed for cause, the inclusion of a lengthy period of notice with pay, and the right to seek other opportunities with an essentially unblemished record is not without value to her.
We do not perceive any inconsistency between the provisions of the CNA regarding discipline and the provisions of the individual contracts of employment. Read in harmony, the CNA would permit discharge, based on an assertion of just cause, without any notice to the employee. The individual contract, on the other hand, would permit termination of the contract, without any assertion of cause, but only on sixty days' notice to the employee. In light of the historical context of plaintiff's clearly enunciated policies relating to individual contracts of employment, the provisions in the CNA that recognize those policies and the plaintiff's rights to terminate those contracts, the rather generous notice provision and the advantages it affords to a dismissed employee, we do not read into the CNA a further right for this employee than the ones already afforded.
Given the absence of a statutory right to arbitrate a mid-contract termination on notice, we conclude that school boards have the inherent power to terminate a non-tenured employee pursuant to the notice terms of an individual employment contract without providing the employee a hearing or an opportunity to arbitrate. In this case, in light of the language in the CNA concerning the Board's power to terminate staff members, the incorporation of the Board's policies on termination of non-tenured contract employees, and the narrow definition of what constitutes a grievance under the CNA, we conclude that the Board did not waive its right to terminate mid-term non-tenured employees on notice without extending to them a grievance procedure. Instead, the language of the CNA makes plain that neither the Board nor the Association contemplated that a grievance procedure would apply to a termination of a contract in the middle of its term.
We cannot overlook the fact that these parties, in negotiating the CNA and in referring in particular to the existence and validity of the individual employment contracts, were well aware of the scope and meaning of those contracts. Were we to conclude that Lenart was entitled to grieve and to arbitrate the decision of plaintiff to terminate her individual employment contract, we would, in effect, be creating for her a contract better than the one defendant negotiated.
JUSTICES LaVECCHIA and RIVERA-SOTO join in this opinion.
JUSTICE LONG, dissenting.
Patricia Lenart suffered a mid-term termination of her employment because of her inadequate teaching performance, as documented by the school principal who communicated his findings to her. That for-cause termination was facially governed by the just-cause provision of the CNA which provides an arbitration remedy. Nevertheless, three of our colleagues have concluded that Lenart's individual contract, providing for discharge on 60 days notice, trumps the CNA. I disagree. The only relevant issue is whether a fair reading of the CNA requires arbitration in these circumstances. If so, any contrary provision in the individual contract, however advantageous, must yield. Troy v. Rutgers, 168 N.J. 354, 378 (2001) (noting collective agreements prevail over individual agreements and, when there is conflict, individual agreements may not be enforced). That is the gravamen of Article IV of the CNA: "If an individual contract contains any language inconsistent with this Agreement, this Agreement during its duration shall be controlling." The reason is obvious. Collective agreements are designed "to supersede the possible terms of individual agreements of employers with terms which reflect the strength and bargaining power and serve the welfare of the group." Lullo v. Int'l Ass'n of Fire Fighters, 55 N.J. 409, 428 (1970). Thus, any approach that favors an individual contract over a conflicting CNA provision would undermine the goals of collective negotiations and cannot be countenanced.
More importantly, our law has undergone a sea-change that compels arbitration here. In Camden Board of Education v. Alexander, a majority of this Court held that, under then-existing legal principles, there was no presumption in favor of arbitration when determining the scope of arbitrability in public-employee contracts. 181 N.J. 187, 203 (2004). Since that time, the Legislature has dramatically amended the controlling statute -- N.J.S.A. 34:13A-5.3 -- to provide for a presumption in favor of public sector arbitration. See L. 2005, c. 380, § 1 (effective Jan. 12, 2006). The statute now explicitly contains such a presumption:
In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration. [N.J.S.A. 34:13A-5.3 (emphasis added).]
That unequivocal command by our elected representatives requires that I break with our concurring colleagues in this case. This is precisely the situation contemplated by the words of the statute. Yet, our three colleagues fail to suggest how the instant facts overcome the presumption by which we are bound. The most that can be said of their parsing of the CNA and the individual contract is that it is one interpretation, but not the only one. An equally, if not more persuasive argument can be advanced to the contrary: that the CNA was negotiated in the face of the pre-existing Board policies; that it provides grievance arbitration for disciplinary actions; that a specific exclusion was negotiated for end-of-term non-renewals; that no such exclusion for mid-term dismissals for cause was negotiated; and that therefore the grievance arbitration procedure was intended to apply.
At the very least, doubt has arisen regarding the scope of arbitrability; therefore, that doubt must be resolved in favor of arbitration. The statutory command could not be clearer.
N.J.S.A. 34:13A-5.3. Accordingly, I would resolve the dispute over Lenart's mid-term contract termination by remanding the case for grievance arbitration.
JUSTICES ALBIN and WALLACE join in this opinion.
Justice Long PRESIDING
CONCURRING OPINION BY Justice Hoens
DISSENTING OPINION BY Justice Long
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Challenge of Hades "balance beams" are KILLING me!
I can't believe I suck THIS BADLY!
I think I'm close to the end of the Challenge of Hades, and I'm at the point where I'm on these balance beams hundreds of feet up in the air above the shrine of Hades (or whatever it is) and have to contend with those rotating arms of blades that just nail my hide every time.
I've figured out that I can double-jump above them and land perfectly right back down, but it's my execution and poor hand-eye coordination that is doing me in.
Anybody have any suggestions for improving my hand-eye coordination, other than just playing this section and massively failing over and over and over and over and over...
Re: Challenge of Hades "balance beams" are KILLING me!
I can tell you how to make this a bit easier.
When you first reach this room, you take a left to walk on the beam. Instead of taking a left onto the beam, jump straight ahead onto the platform there. You can bypass the entire first rotating blade thing. You still have to navigate the rest of the beams, but this will get you past the first part.
Good luck,


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PUNJAB NATIONAL BANK RTGS HO Branch in BIJBEHARA (J&K) - Address, IFSC, MICR Code
PUNB0055900MICR Code
BIJBEHARA (KASHMIR)Contact
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What is IFSC Code of PUNJAB NATIONAL BANK situated at BIJBEHARA (KASHMIR)- RTGS-HO?
IFSC Code of PUNJAB NATIONAL BANK situated at BIJBEHARA (KASHMIR) - RTGS-HO is
What is the meaning of IFSC Code, MICR Codes in Banking industry?
IFSC or Indian Financial System Code is the code allocated to all banks branches. Bank branches use this code to participate in RTGS and NEFT transactions.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
Prison is a place where, for the protection of society, those found guilty of crimes are sent to be incarcerated. Prisons are a relative new invention, being created in the modern world, and therefore the social effects on inmates are not well-known. It is known that within prisons, the inmates go through a process by which they are transformed from members of society in general, to members of a prison society. The rules, responsibilities, obligations, and relationships are all very different to the outside world. In order to understand the society which is created when a group of criminals are confined together, researchers have studied the social dynamics of prison life. These researchers have begun to understand the changes in an inmate's psychology as they transform from a traditional member of human society to a member of a prison society. This essay will discuss the evolution of the prison system, the creation of societies with prisons, both male and female, as well as discuss the effects of prison society on the prison guards and staff.
French philosopher Michael Foucault, in his book Discipline and Punishment, extensively detailed the evolution of punishment in Western culture. Foucault asserted that during the Middle Ages, when Monarchies were the major form of government, the ruler was responsible for the dispensing of justice. As crime became seen as an offense against the ruler, it was the ruler who assumed to undertake the dispensing of punishment. Torture and execution were the most common forms of punishment at this time, but because they were dispensed unevenly and in an ineffective manor, executions became more of a form of political statement than a state sponsored form of social punishment. As Foucault stated, "The public execution is to be understood not only as judicial, but also as a political ritual." (Foucault, 1995, p. 47) This later evolved into a period where individual communities assumed the responsibility for dispensing justice and the idea that public punishment was an effective form of justice became part of Western thought.
During the 17th and 18th centuries, great social changes made their way into Western culture. The idea of organizing mass numbers of people toward a specific goal became part of the Western way of life. Discipline, as this concept was called, also influenced the idea of punishment and justice. Through the concept of discipline, it became possible, to organize and control large numbers of criminals in a system. A system that not only organized the inmates in a disciplined manner, but also the support structures necessary for the entire justice system. Prisons required builders, guards, doctors, supplies, probation officers, etc., and an entire system was formed, and it was based on scientific principles.
Once a system of prisons is in place, the question of what happens to a person when they enter that system becomes important. Donald Clemmer discussed the concept of "prisonization" as a sociological and psychological process by which individuals become acclimated to the environment inside the prison system. Clemmer was careful to point out that prisonization is not the same as assimilation, which involves the merging of individuals and groups. Prisonization, according to Clemmer, begins when the individual enters the system and is "swallowed by the system." The individual must adapt to the conditions inside the prison, "wising up" as fast as possible and accept that they are now in an inferior position in relation to the rest of society, but most particularly to the guards and other prison personnel. New inmates must learn the daily routine that they will be forced to endure, as well as the values and the language of prison society. How well they become prisonized depends to a great deal on the nature of the individual and the amount of contact and support they receive from the outside world.
As Foucault asserted, in the past those who were punished usually received physical pain or death, but the modern world sees this type of punishment as inhumane, and so the idea that an inmate should be physically harmed is no longer considered a sound punitive measure. But Gresham Sykes discussed the idea that simply being incarcerated in a prison system can inflict pain on an individual, albeit, psychological and emotional pain. As Sykes asserts "the depredation or frustrations of prison life today might be viewed as punishments which the free community deliberately inflicts on the offender for violating the law." (Sykes, 1971, p. 285) Just the act of depriving an inmate of liberty, ordinary goods and services, heterosexual relations, autonomy, and security is a type of pain that can be inflicted on a person in prison, according to Sykes.
Once inside a prison, the inmates form a type of society that is unlike anything on the outside. Sykes, along with Sheldon Messinger, in the 1960 book Theoretical Studies in the Social Organization of the Prison discussed the inmate social system. "This value system commonly takes the form of an explicit code, in which brief normative imperatives are held forth as guides for the behavior of the inmate in his relations with fellow prisoners and custodians." (Sykes and Messinger, 1960, pp. 5-11) The authors assert that there are five main rules that inmates must accept as part of the social norms in prison. First of all do not interfere in the interests of other inmates, keep to yourself. Second, do not lose your head and get into trouble. Third, do not exploit other inmates. Fourth, never weaken or lose your resolve to continue, if you do, you will be destroyed. And finally, don't be a sucker, always remember that it is inmates against all others; and inmates should not allow themselves to become used by the system against other inmates.
Foucault, Clemmer, Sykes, and Messinger all researched prison populations, but only studied prisons with male populations. As Rose Giollombardo discussed in Society of Women, the system of social values in a prison populated by women is quite different. The vast majority of inmates adapt to prison life by establishing a lesbian relationship as a marriage unit. "Marriage alliances, family groups, and other kinship ties formed by the inmates integrate inmates into a meaningful social system." (Giollombardo, 1966, p. 270) Unlike male prisons, sexual relationships in female prisons are not coerced, but made willingly between consensual partners.
In the study of the prison system, in is important to study the relationship between the inmates and the officers in charge of their incarceration; the prison guards and staff. In 1973, researchers at Stanford University conducted a famous experiment where students simulated a prison experience from the point-of-view of the prisoners and the guards. While the experiment was slated to last 14 days, it was cancelled after just 6 days because, as the researchers state on their web site, "our guards became sadistic and our prisoners became depressed and showed signs of extreme stress." (Zimbardo, 1973) While this particular experiment has been touted as the extreme to which prison can affect people, critics claim that a simulation is not the best way to discover the social effects of prison. And since this experiment was conducted in 1973, this type of simulation has not been widely repeated.
When it comes to an analysis of the prison system, it is difficult to argue with the positions of the mentioned authors, as their studies were mainly observational in nature. But their observations do shed light on the changes in social structures that inmates must face when entering prison society. With the advent of the modern prison system, inmates have created a new type of society, separate from society in general, and have gone on to develop independent values, attitudes, language, and relationships. And this prison society not only affects the inmates, but the guards and staff as well.
What these authors have…[continue]
"Prisons Prison Is A Place Where For" (2011, July 12) Retrieved December 9, 2016, from http://www.paperdue.com/essay/prisons-prison-is-a-place-where-for-84266
"Prisons Prison Is A Place Where For" 12 July 2011. Web.9 December. 2016. <http://www.paperdue.com/essay/prisons-prison-is-a-place-where-for-84266>
"Prisons Prison Is A Place Where For", 12 July 2011, Accessed.9 December. 2016, http://www.paperdue.com/essay/prisons-prison-is-a-place-where-for-84266
Prison The modern prison system represents a macrocosmic understanding of how to punish the collective sins of society. Within any environment, the strength of its contents is a direct reflection on the worst of its contents as well. The importance of the cathartic rehabilitation that occurs during learning, growth, understanding and forgiveness dictates how one would be rehabilitated in any system, prison or not. The sheer numbers of prisoners within the
prison gang is a select group of inmates with an organized chain of command and an established code of conduct. They operate in secrecy with a view to controlling their prison environment through intimidation and violence meted on non-members. Some of the oldest prison gangs in the U.S. were formed as early as 1950s. Some notable example is Gypsy Jokers that operated in Washington State prisons (Fleisher & Decker,
Duncan's thesis on the attractions of prison is more psychologically grounded, however. People seek constraints and limits, just as they are imprisoned by societal standards and limits, or Foucault's notion of the Panopticon. The criminal is also a kind of fantasy-child for society, according to Duncan. Like a child, a criminal dwells in a kind of in-between space, a place where anything is possible, and redemption is possible. The American
Federalist What is a faction? Where in modern American politics do we see factions? How does Madison propose to quell the impact of factions in government? In Federalist 10, James Madison discussed the types of factions, parties and interest groups that result from differences in wealth and property, as well as differences of opinion in religion, politics or ideology. He thought that differences in wealth and rank, at least those not
Prisons as an Area of Corrections Throughout the years, prisons have become a major component of the criminal justice system since they act as institutions that help in punishment of convicted criminals and deterrent for crime prevention. This article examines these facilities as part of the justice system and how they function in accomplishing their purpose. The analysis includes an exploration of the various types of prisons such as jails, federal,
Prison Funding Finding Funds for Fighting Crime: Financial Contingency planning for California's Prison System Prisons have always been a controversial aspect of society, and far more so in the modern era of sociological and psychological inquiry into the nature of crime, punishment, and rehabilitation. Deciding precisely what function prisons are meant to serve and how they should go about serving it has been the cause of a great deal of social and
Prison Health Care Agency In 1930, the Federal Bureau of Prisons was set up so that more progressive and benevolent care could be provided for Federal prisoners/convicts. Moreover, the purpose behind the establishment of this Bureau was to bring professionalization in the prison service and to make certain that the eleven operational Federal prisons are administered with consistency and centralization. In the present times as well, the Federal Bureau of Prisons


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The Hellboy Pinot has been named to several holiday gift guides! Click to find out more! + Read More +
"Stranded on Earth for more than half a century, an alien assassin observes humanity's capacity both for compassion and for destruction," is how co-writer Chris Roberson describes the five-part storyline launching next year. Check out more over at the Hollywood Reporter... + Read More +
IDW Publishing is proud to present the second Artist's Edition by Mike Mignola, the Eisner Award-winning creator of Hellboy. Read more here… + Read More +
Following the last issue of Hellboy in Hell, the decades-long main story of Hellboy has finally been concluded. This month also sees the release of the final issue of the solo Abe Sapien series. It's the end of an era, but the so-called "Mignolaverse" isn't quite finished yet. This month also sees the launch of two + Read More +
Thank you Sean Collins! 1. Hellboy: Seed of Destruction 2. Hellboy: Wake the Devil 3. Hellboy: The Chained Coffin and Others 4. Hellboy: The Right Hand of Doom 5. Hellboy: Conqueror Worm 6. BPRD: Hollow Earth & Other Stories 7. Hellboy: Weird Tales Vol. 1 8. BPRD: The Soul of Venice & Other Stories 9. + Read More +
So here's is all the Mike info you need to know for SDCC… Our booth # is 4901 as always…we are there Wednesday, Thursday, Friday and Saturday…other than being there Mike's schedule is… Thursday, July 24 – 1pm to 2pm Signing at the ABC booth 4245 Friday, July 25 • 12:30pm – 1:30pm Spotlight on + Read More +