Walsh v. Department of Public Advocate

SYLLABUS
 

(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).

Stephen Walsh v. State of New Jersey and Department of the Public Advocate, et al. (A-93-96)

(NOTE: The Court wrote no full opinion in this case. Rather, the Court's reversal is based substantially for the reasons expressed in Judge Skillman's dissenting opinion below.)

Argued February 19, l997 -- Decided March 5, 1997

PER CURIAM

In this appeal, the Court addresses the existence and/or enforceability of an alleged agreement between the Public Defender and an Assistant Deputy Public Defender to promote him within a year of employment.

Stephen Walsh is an Assistant Deputy Public Defender (ADPD). He had been employed in the Bergen region office of the Office of the Public Defender from l980 to l986, when he left to begin private practice. When he left the Bergen region office, he held the position of ADPD I. In l988, learning that Walsh was not content in private practice, Ellen Koblitz, then Deputy Public Defender in charge of the Hudson region office, invited Walsh to resume practice as a public defender in the Hudson region office. Based on information provided to her by the First Assistant Public Defender, Thomas S. Smith, Koblitz offered Walsh the position of an ADPD I with a salary of $42,266.82.

Subsequently, in an attempt to obtain the highest possible salary for Walsh, Koblitz spoke with John DeVaney, the chief personnel officer for the Office of the Public Advocate. DeVaney constructed a plan whereby Walsh would return to the Public Defender's Office at a lower level than that when he had left in l986. Specifically, he would begin as an ADPD II, but would be promoted to a Level ADPD I after one year, which would enable him to receive a salary greater than if he had started as an ADPD I. Walsh agreed to accept the offer at the lower level, understanding that he would be promoted after a year.

After one year, Koblitz recommended Walsh for a promotion. However, Smith denied the promotion on the ground that an ADPD II had to remain in the position for two years before becoming eligible for promotion. However, Smith subsequently approved an extra salary increase for Walsh, which did not materialize due to a State freeze on all promotions and salary adjustments, absent extraordinary and compelling circumstances. Subsequent attempts to promote Walsh after service in the position for two years were denied by the Public Defender due to continuing freezes.

Walsh filed a verified complaint in lieu of prerogative writ in the Superior Court, Law Division, seeking damages for breach of the alleged oral agreement to promote him. After a bench trial, the trial judge determined that there was an enforceable implied-in-fact contract to promote Walsh after one year to an ADPD I and entered an award for damages and further ordered that Walsh be placed in the classification and salary step of ADPD I as of June l994, and that he receive all the increments and raises awarded for that position since that date.

The defendants appealed, arguing that the record did not support the existence of a firm and definite offer to promote Walsh or of any intent on the part of the defendants to make such an offer. Furthermore, the defendants maintained that the record could not support the trial judge's conclusion that defendants' representatives had actual or delegated authority to promise Walsh a promotion. Two members of the Appellate Division panel affirmed the judgment of the trial court for the reasons expressed by the trial judge. However, in a dissenting opinion, Judge Skillman disagreed with the majority conclusion, expressing

the opinion that, so long as his personnel actions were not invidiously discriminatory, the Public Defender had unfettered discretion to hire, discharge, transfer, demote or withhold promotion from an ADPD, limited only by certain external statutory constraints imposed on him and other high level state executive officials by the Legislature.

The defendants appealed to the Supreme Court as of right.

HELD: The judgment of the Appellate Division is REVERSED substantially for the reasons expressed in the reported dissenting opinion below. The Public Defender's failure to initiate the promotion of Walsh to the position of ADPD I constituted a valid exercise of his statutory and regulatory powers.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
A- 93 September Term 1996

STEPHEN P. WALSH,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY, DEPARTMENT OF
THE PUBLIC ADVOCATE, OFFICE OF THE
PUBLIC DEFENDER, PUBLIC DEFENDER,

Defendant-Appellant.

Argued February 19, 1997 -- Decided March 5, 1997

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 290 N.J. Super. 1 (1996).

Lewis A. Scheindlin, Deputy Attorney General, argued the cause for appellant (Peter G. Verniero, Attorney General of New Jersey, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel; Mr. Scheindlin and Perry L. Lattiboudere, Deputy Attorney General, on the briefs).

Matthew S. Rogers argued the cause for respondent (Contant, Scherby & Atkins, attorneys; Andrew T. Fede, on the brief).

PER CURIAM
The judgment is reversed, substantially for the reasons expressed in Judge Skillman's dissenting opinion of the Appellate Division, reported at 290 N.J. Super. 13 (1996).

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-93

SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO

STEPHEN P. WALSH,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY, DEPARTMENT OF
THE PUBLIC ADVOCATE, OFFICE OF THE
PUBLIC DEFENDER, PUBLIC DEFENDER,

Defendant-Appellant.

DECIDED

March 5, 1997
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
REVERSE CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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