NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1343-16T4

LEONARD YARBOROUGH, 

Plaintiff-Appellant,

v.

STATE OPERATED SCHOOL DISTRICT

OF THE CITY OF NEWARK, ESSEX

COUNTY,

Defendant-Respondent.

_____________________________

Argued February 27, 2018 – Decided

Before Judges Fisher, Sumners1 and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. 

L-5629-16.

Charles I. Auffant argued the cause for 

appellant (Stuart Ball, LLC, attorneys; 

Charles I. Auffant, on the brief).

Ramon E. Rivera argued the cause for 

respondent (Scarinci & Hollenbeck, LLC, 

attorneys; Ramon E. Rivera, of counsel; 

Shana T. Don, on the brief).

The opinion of the court was delivered by 

MOYNIHAN, J.S.C. (temporarily assigned). 

 

1 Judge Sumners did not participate in oral argument but has, 

with the consent of counsel, been added to the panel deciding 

this matter.

APPROVED FOR PUBLICATION

June 8, 2018

APPELLATE DIVISION

June 8, 2018
2 A-1343-16T4

Leonard Yarborough, a third-grade teacher for the State 

Operated School District of the City of Newark, Essex County 

(District), appeals from the trial court's order denying his 

motion to vacate, effectively confirming that portion of an 

arbitration award and decision imposing a 120-day suspension 

without pay after the arbitrator found Yarborough culpable of a 

conduct-unbecoming tenure charge for inflicting corporal 

punishment on two students in contravention of N.J.S.A. 18A:6-1. 

Yarborough contends the trial court erred in failing to 

vacate the arbitration award because the court: misinterpreted 

the entire controversy doctrine (ECD) which should have 

precluded the District from prosecuting the tenure charge; 

failed to consider "fundamental legal principles" such as the 

doctrines of industrial double jeopardy, estoppel, laches, 

waiver and unclean hands; and failed to find the arbitration 

award was procured by undue means, N.J.S.A. 2A:24-8, because, 

"[e]ven if the charge of conduct unbecoming was properly before 

the [a]rbitrator, the [a]ward is not supported by a 

preponderance of the evidence standard."

We are not persuaded that the ECD precludes the prosecution 

of the conduct-unbecoming charge; nor are we persuaded that the 

arbitrator's award was procured by undue means and affirm.
3 A-1343-16T4

"Judicial review of an arbitration award is very limited." 

Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) 

(quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. 

Mizichko, 202 N.J. 268, 276 (2010)). "An arbitrator's award is 

not to be cast aside lightly. It is subject to being vacated 

only when it has been shown that a statutory basis justifies 

that action." Ibid. (quoting Kearny PBA Local # 21 v. Town of 

Kearny, 81 N.J. 208, 221 (1979)). 

In reviewing the award confirmation, we owe no special 

deference to the trial court's interpretation of the law and the 

legal consequences that flow from the established facts. Town 

of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (citing Manalapan 

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)). We thus review the trial court's decision on a motion 

to vacate an arbitration award de novo. Minkowitz v. Israeli, 

433 N.J. Super. 111, 136 (App. Div. 2013). 

The court may vacate an arbitration award "[w]here the 

award was procured by . . . undue means." N.J.S.A. 2A:24-8(a). 

"'[U]ndue means' ordinarily encompasses a situation in which the 

arbitrator has made an acknowledged mistake of fact or law or a 

mistake that is apparent on the face of the record." Borough of 

E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 203 

(2013) (alteration in original) (quoting Office of Emp. 
4 A-1343-16T4

Relations v. Commc'ns Workers, 154 N.J. 98, 111 (1998)). We 

perceive neither a mistake of law nor a mistake of fact in the 

record.

We turn first to the issue of whether the ECD precludes the 

District from bringing the conduct-unbecoming charge. The ECD

is equitably rooted; its applicability is left to judicial 

discretion based on the particular circumstances in a given 

case. Mystic Isle Dev. Corp. v. Perskie & Nehmad, PC, 142 N.J.

310, 322-23 (1995); DiTrolio v. Antiles, 142 N.J. 253, 275 

(1995). In Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. 

Div. 1960) (citations omitted), we held:

It is well settled that discretion means 

legal discretion, in the exercise of which 

the trial judge must take account of the law 

applicable to the particular circumstances 

of the case and be governed accordingly. . . 

. [I]f the trial judge misconceives the 

applicable law, or misapplies it to the 

factual complex, in total effect the 

exercise of the legal discretion lacks a 

foundation and becomes an arbitrary act, 

however conscientious may have been the 

judge in the performance of it. When this 

occurs it is the duty of the reviewing court 

to adjudicate the controversy in the light 

of the applicable law in order that a 

manifest denial of justice be avoided.

As he did before the arbitrator and the trial court, 

Yarborough contends the District's conduct-unbecoming charge is 

precluded under the ECD because the precipitating events – the 

corporal punishment of the students on October 21, 2013 and 
5 A-1343-16T4

February 28, 2014 — predated prior tenure actions instituted 

against him on October 9, 2014 and January 26, 2015, during 

which the present charge should have been brought. We reject 

Yarborough's proposed application of the ECD as overextended.

We previously synopsized the recognized rationale for the 

ECD: 

Our Supreme Court has stated that the [ECD]

"seeks to further the judicial goals of 

fairness and efficiency by requiring, 

whenever possible, 'that the adjudication of 

a legal controversy should occur in one 

litigation in only one court.'" Circle 

Chevrolet Co. v. Giordano, Halleran & 

Ciesla, PC, 142 N.J. 280, 289 (1995)

(quoting Cogdell v. Hosp. Ctr. at Orange,

116 N.J. 7, 15 (1989)). The objectives 

behind the doctrine were outlined in 

DiTrolio, 142 N.J. at 267[,] as follows:

"(1) the need for complete and final 

disposition through the avoidance of 

piecemeal decisions; (2) fairness to parties 

to the action and those with a material 

interest in the action; and (3) efficiency 

and the avoidance of waste and the reduction 

of delay." 

[Hynes v. Clarke, 297 N.J. Super. 44, 55 

(App. Div. 1997).] 

Yarborough seeks to relate our holding that "under the 

proper circumstances the [ECD] is correctly applied to 

arbitration proceedings," Shoremount v. APS Corp., 368 N.J. 

Super. 252, 255 (App. Div. 2004), but fails to relate our 

tempering language that the ECD should not be "imported 

wholesale into [those] proceedings," id. at 256. We previously 
6 A-1343-16T4

noted that arbitration – with its ordinarily narrow-framed 

issues — "does not provide a forum conducive to extensive issue 

. . . joinder." Jersey City Police Officers Benevolent Ass'n v. 

City of Jersey City, 257 N.J. Super. 6, 14 (App. Div. 1992). 

Especially with regard to limited-issue arbitration, we warned 

"[t]he preclusionary consequences of the [ECD] must consequently 

be cautiously applied to litigation involving" those 

arbitrations. Id. at 14-15. 

The prior tenure arbitrations against Yarborough were based 

solely on his alleged inefficiency. The arbitrator found the 

inefficiency charges brought in the January 26, 2015 matter made

the same factual allegations as those stated 

in the original charges [filed on October 9, 

2014]. It was specifically alleged that 

Yarborough demonstrated an inability to 

completely and responsibly execute his 

duties as a teacher and enumerated failures 

to implement curricular goals and 

objectives, design coherent instruction, 

access student learning, create an 

environment of respect and rapport, manage 

student behavior, etcetera. It was further 

alleged that [Yarborough] received an 

Ineffective rating for the 2012-2013 school 

year in an Annual Summative Evaluation and 

received a Partially Effective rating for 

the 2013-2014 school year in an [A]nnual 

Summative Evaluation.

The limited scope of both arbitrations militates against 

application of the ECD. 
7 A-1343-16T4

We note the Legislature provided special procedures for the 

arbitration of inefficiency charges under N.J.S.A. 18A:6-117 to 

-129 — the Teacher Effectiveness and Accountability for the 

Children of New Jersey (TEACHNJ) Act. N.J.S.A. 18A:6-17.1 to -

17.3. The provisions include a limited scope of issue-review, 

N.J.S.A. 18A:6-17.2(a), (b) and (c); a specified burden of proof 

imposed on a board of education, N.J.S.A. 18A:6-17.2(d); and a 

specified time frame for hearing and rendering a written 

decision, N.J.S.A. 18A:6-17.2(e). Given the strictures imposed 

on inefficiency arbitrations, we conclude such proceedings are 

not conducive to the inclusion of other charges, including 

conduct unbecoming. 

Further, we perceive little or no transactional nexus 

between inefficiency charges and conduct-unbecoming charges 

based on the infliction of corporal punishment that would 

warrant application of the ECD. See Alpha Beauty Distribs., 

Inc. v. Winn-Dixie Stores, Inc., 425 N.J. Super. 94, 104 (App. 

Div. 2012) ("In determining what constitutes a single 

controversy, courts 'look at the core set of facts that provides 

the link between distinct claims against the same or different 

parties.'" (quoting Hobart Bros. Co. v. Nat'l Union Fire Ins. 

Co., 354 N.J. Super. 229, 244 (App. Div. 2002))). The former 

generally involve the assessment of teaching evaluations, see
8 A-1343-16T4

N.J.S.A. 18A:6-17.2(a)(1) to (2), -17.2(b), -17.3; the latter, 

evidence of physical force or punishment, except when 

statutorily justified, N.J.S.A. 18A:6-1.

We previously observed the ECD was "intended to compel the 

adjudication of all components of a legal controversy in a 

single litigation as a matter of fairness to the parties and 

protection of the judicial system from unnecessary waste, 

inefficiency, and delay." Jersey City Police Officers 

Benevolent Ass'n, 257 N.J. Super. at 13. We do not see the 

inefficiency claim and the conduct-unbecoming claim as being 

part of the same controversy. Nor, in light of their discrete 

factual bases and the separate procedural rules for inefficiency 

matters, do we see that separate proceedings caused waste, 

inefficiency or delay. 

Our decision renders it unnecessary to address the merits 

of the rulings by both the trial court and the arbitrator that 

the ECD was inapplicable because the prior tenure hearings were 

not fully arbitrated. The October 9, 2014 matter was dismissed 

on Yarborough's motion after the arbitrator determined the 

District — as had been previously determined in prior 

arbitrations in which the District made the same allegations —

could not use 2012-2013 evaluations to prove teacher 

inefficiency under the TEACHNJ Act. The arbitrator dismissed 
9 A-1343-16T4

the January 26, 2015 charges, invoking the ECD in determining it 

would be "a denial of fundamental fairness to force [Yarborough] 

to defend . . . an action regarding the identical facts [as in 

the October 9, 2014 matter] which would deny him of his position 

a second time." While the ECD's "application requires, as a 

matter of first principle, that the party whose claim is being 

sought to be barred must have had a fair and reasonable 

opportunity to have fully litigated that claim in the original 

action," Cafferata v. Peyser, 251 N.J. Super. 256, 261 (App. 

Div. 1991), we do not know if the arbitrator would have 

dismissed a conduct-unbecoming charge if it had been included in 

either of the prior arbitrations. Our ruling that it need not 

have been included obviates our contemplation.

We conclude the rejection of Yarborough's ECD argument was 

not a mistake of law or an abuse of discretion. We briefly note 

Yarborough's conflation of the ECD and res judicata, and 

determine any argument based on res judicata to be without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). No issue of fact was ever before an 

adjudicator; no issue of fact was litigated; and no issue of 

fact was ever found. 

We also find meritless Yarborough's argument that the award 

was procured by undue means because the evidence did not prove 
10 A-1343-16T4

the conduct-unbecoming charge by a preponderance of the 

evidence. As Judge Thomas R. Vena noted in his written 

decision, the arbitrator's comprehensive findings of fact, 

crediting the testimony of the school principal as to both 

incidents of corporal punishment, well supported the conductunbecoming charge. The keen assessment of law and fact set 

forth by Judge Vena in his opinion lead us to conclude that the 

arbitrator's findings were supported by a preponderance of the 

evidence; we cannot improve on his analysis. 

Plaintiff never raised the preclusive effects of the 

doctrines of industrial double jeopardy, estoppel, laches, 

waiver and unclean hands prior to this appeal. We will not 

address them here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 

229, 234 (1973).

Affirmed.