A former New Jersey schools superintendent urged a state appellate court on Thursday to vacate an arbitration award that ended his career, claiming that the arbitrator relied on "uncharged character assassination" and violated state law by admitting new allegations midhearing.

The attorney for Timothy Capone, Laura M. LoGiudice of Green Savits LLC, told a three-judge Appellate Division panel that the arbitrator exceeded her authority by allowing the school board to introduce "a multitude of new and serious allegations" not included in the original tenure charges, in violation of the tenure arbitration statute.

"This was not a tenure hearing," LoGiudice said of the dispute involving Capone and the Montague Township Board of Education. "This was trial by ambush."

LoGiudice said the arbitrator's findings were tainted by hearsay, misstatements of testimony, and a failure to apply established legal standards like the Fulcomer factors stemming from the 1967 Appellate Division case In re: Fulcomer and seven "just cause" factors established by the New Jersey School Boards Association.

"If no factors are going to be applied, then it's just loosey-goosey how the arbitrator feels at the end of the day," LoGiudice said.

The panel pressed LoGiudice on whether Capone had had a fair opportunity to respond to the allegations, with Judge Hany A. Mawla saying that the record showed counsel "very ably went tit-for-tat on every issue."

LoGiudice countered that the sheer volume of uncharged claims — including Individualized Education Program placements and racist texts — created an atmosphere that unfairly influenced the arbitrator's credibility determinations.

"We can't quantify what influence all of those allegations had," she said.

Judge Mawla asked whether the arbitrator's use of the disputed material was limited to assessing credibility, as permitted under the statute.

LoGiudice rejected that framing, saying the board presented the allegations in its case in chief, not for impeachment.

"There was nothing being impeached," she said. "This testimony was just being brought in to announce new allegations."

Representing the school board, Mary Anne Groh of Cleary Giacobbe Alfieri Jacobs LLC defended the arbitrator's conduct and findings, saying the decision was "lengthy and well reasoned" and supported by testimony from 17 witnesses over 10 hearing days.

Groh argued that Capone's alleged conduct, including meddling in elections, belittling of staff and retaliatory behavior, was sufficiently serious to warrant termination, even without previous discipline.

"He must be entrusted to lead with the trust and respect of the school community," Groh said. "Given his actions and his failure to demonstrate any reflection or remorse, corrective action would be futile."

The judges also explored whether the arbitrator was required to apply specific legal standards. LoGiudice cited Fulcomer and In re: Geiger  as examples of cases where courts applied structured factors to tenure decisions. Groh responded that while the arbitrator referenced those standards, there is no case law mandating their use.

Capone was hired as Montague's chief school administrator in 2017. The school board placed him on paid administrative leave in April 2021. Formal tenure charges seeking his dismissal were filed in August 2022. In January 2024, the arbitrator upheld his discharge, which prompted his appeal.

Judges Hany A. Mawla, Joseph L. Marczyk and Avis Bishop-Thompson sat on the panel for the Appellate Division.

Capone is represented by Laura M. LoGiudice of Green Savits LLC.

The Montague Township Board of Education is represented by Mary Anne Groh of Cleary Giacobbe Alfieri Jacobs LLC.

The case is Capone v. Montague Township Board of Education, case number A-3406-23T2, in the Superior Court of the State of New Jersey, Appellate Division.