DWAYNE C. CONNELLY v. BOROUGH OF EATONTOWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DWAYNE C. CONNELLY,

Plaintiff-Appellant,

v.

BOROUGH OF EATONTOWN,

Defendant-Respondent.

_______________________________

April 8, 2014

Argued October 16, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-404-12.

Gregory S. Schaer argued the cause for appellant.

Thomas A. Abbate argued the cause for respondent (Decotiis, Fitzpatrick & Cole, LLP, attorneys; Mr. Abbate, of counsel; John A. Stone, on the brief).

PER CURIAM

Plaintiff Dwayne C. Connelly appeals from the Law Division's order granting summary judgment to defendant Borough of Eatontown, and dismissing Connelly's complaint. Connelly alleged various causes of action arising out of the Borough's attorney's disclosure of Connelly's positive drug test result. The disclosure was made at a disciplinary hearing before the Mayor and Council that Connelly requested be held in public. We affirm.

I.

The pertinent facts are undisputed.1 Plaintiff was employed in the sign shop of the Borough's Department of Public Works. He was asked to prepare a replica of a license plate that the police would use to calibrate their equipment that automatically recognizes license plates. Connelly painted the words "Police State," instead of "Garden State," at the top of the replica. Connelly's supervisor issued a notice of disciplinary action, charging him with insubordination, inefficiency and violation of Borough procedures and policies. Without expressly referring to Connelly's past positive drug test, the notice stated, "Additionally, you have a work history of being disciplined for insubordination and substandard performance of duties."

Disciplinary procedures were governed by a labor collective bargaining agreement, and the employee handbook, which adopted a policy of progressive discipline, stating that corrective actions will be related to "the number and kind of previous infractions and other circumstances." Pursuant thereto, Connelly received a grievance hearing before Borough Administrator Jackson, who sustained the charges in a written opinion, and ordered Connelly's demotion and suspension for five days. Jackson reviewed Connelly's disciplinary record, expressly noting his prior positive drug test: "Mr. Connelly's disciplinary history is not unblemished; however, the majority of his infractions are several years old. With the exception of a failed drug test, the remaining incidents are not considered to be major in severity."

Connelly then exercised his right to a hearing before the Mayor and Council. Jackson provided Connelly with a written notice on February 17, 2011, pursuant to N.J.S.A. 10:4-12(b)(8), and Rice v. Union Cnty. Reg. High Sch. Bd. of Educ., 155 N.J. Super. 64 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978), that the hearing would be held on February 23 in executive session, unless Connelly sought a public hearing. Connelly apparently did not respond in writing to the letter.

However, at the open session of the governing body, the Borough Attorney explained that it would address a personnel matter without identifying Connelly by name in closed session. Connelly then requested a public hearing, and reaffirmed that decision upon questioning by the mayor.

Jackson then generally described the procedural history of the matter, noting that the governing body had received, among other documents, his written decision. The Borough's labor attorney thereafter presented the case in support of the administrator's decision, stating, "And additionally, Mr. Connelly has a previous history of insubordination, of drug use, and . . . I think he's been issued I think around five letters of reprimand . . . ." The mayor then interjected, and asked Connelly if he was still comfortable with a public hearing, noting the presence of the press. Connelly replied, "Yes, very comfortable with it." Upon questioning by the mayor, the attorney stated that Connelly's past history was germane to the issue of progressive discipline.

In response to the charges, Connelly denied that he meant the sign to be offensive. Addressing his past record, he stated, "[A]nd for my drug test, just for the record, yes I had a positive drug test, that was in 2003. My last uh I think was 2002. I don't have a problem."

The governing body ultimately upheld the discipline. Connelly had filed an unfair labor practices charge with the Public Employment Relations Commission, but the matter was later settled.

Connelly thereafter filed a pro se complaint in which he alleged that the Borough violated federal requirements to maintain the confidentiality of his 2002 positive test for cocaine, which was conducted as part of a federally-mandated testing program by employers of holders of commercial driver's licenses.2 Connelly cited 42 C.F.R. pt. 2. He alleged the Borough failed to obtain his written consent for release of the drug test results, and the borough's attorney purposely released the results at the open meeting of the governing body. Connelly alleged the discipline against him arose from his position as chief steward of his labor union. He asserted the disclosure caused his demotion, and led to an embarrassing newspaper report of his hearing and drug test result. He sought recovery of damages caused by the disclosure.

In lieu of answer, the Borough filed its motion to dismiss, or for summary judgment. Connelly, although then represented by counsel, did not present competent evidence, R. 1:6-6, in opposition to the motion. In his opposing brief and oral argument, plaintiff asserted that the Borough violated his right to privacy, citing Doe v. Poritz, 142 N.J. 1 (1995), and the Borough denied him proper notice under Rice, supra, that his drug test would be disclosed at the public hearing. Counsel conceded that "the Federal Transportation laws . . . really don't apply."

Judge Joseph P. Quinn granted the motion, providing a comprehensive written statement of reasons. He observed that the complaint did not clearly articulate the legal basis for the claims. The court found no basis for Connelly's invasion of privacy claim. The court found that plaintiff had no reasonable expectation of privacy in his prior drug infraction because he chose a public hearing. The court also found that plaintiff was "clearly on notice of the existence of his previous infraction" and he "was also on actual and constructive notice that it may have been raised at the hearing." The court noted that the employee manual mentioned progressive discipline, implicating past infractions, and Jackson's written decision "made express mention of the seriousness and relevance of Plaintiff's failed drug test." 3

In his appeal, Connelly asserts there are material issues of fact as to the reasonableness of his expectation of privacy, and the Borough's disclosure of his prior drug testing. He also argues the trial court erred by disregarding claims reasonably encompassed in Connelly's pro se complaint.

II.

We review de novo the trial court's grant of summary judgment, and apply the same standard governing the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Pursuant to Rule 4:46, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying this standard, we discern no basis to disturb the trial court's order dismissing Connelly's complaint.

Our Supreme Court has recognized a constitutional right to privacy in personal information. "If there is a reasonable expectation of privacy in the information disclosed, [a court] must decide whether the intrusion on the right of privacy is justified, balancing the governmental interest in disclosure against the private interest in confidentiality." Doe, supra, 142 N.J. at 78. However, "an individual cannot expect to have a constitutionally protected privacy interest in matters that are exposed to public view." Id. at 80.

As we find no reasonable expectation of privacy, we need not balance public and private interests. In this case, Connelly exposed his drug test to public view by requesting that the governing body conduct his disciplinary hearing in public. We reject Connelly's claim that he could not reasonably have anticipated disclosure of the test at the hearing. Connelly was appealing the Borough Administrator's decision, which expressly relied on the past drug test in approving the demotion and suspension. Also, the Borough Administrator referred to his decision at the outset of the governing body's hearing, before the attorney addressed the matter, giving plaintiff one more opportunity to reverse his request for a public hearing. Furthermore, given the Borough's policy of progressive discipline, Connelly should have reasonably anticipated that past infractions would be discussed.

Although plaintiff asserts his claims "are not premised upon, nor is plaintiff seeking to pursue a private right of action under 49 U.S.C.[A.] 31306 for alleged violations of the statute," he seeks "redress for the alleged violation of his state constitutional rights and invasion of his constitutional right to privacy upon the Borough's alleged violations of the statute." We need not reach Connelly's argument that the Borough's disclosure of the drug test violated federal regulations, as he expressly abandoned that issue before the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, there is no private right of action under the federal testing statute. See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000), cert. denied, 533 U.S. 951, 121 S. Ct. 2594, 150 L. Ed. 2d 752 (2001); Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170-71 (2d Cir. 1998). Also, drug test results may be released to a decisionmaker in a disciplinary action. 49 C.F.R. 40.323 (2014). The results were released to a broader audience than the decisionmaker in this case because Connelly allowed it. Also, Connelly provides no basis and we find none to predicate a private right of action for a state constitutional right to privacy claim on a violation of a federal regulation for which there is no private right of action.

We also reject Connelly's argument that the Borough violated the Open Public Records Act, N.J.S.A. 47:1A-10, which provides that personnel records generally "shall not be considered a government record and shall not be made available for public access." The same provision states that such records "shall be accessible . . . when authorized by an individual in interest." Ibid. To the extent OPRA applies at all to the public meeting at which the drug test records were discussed but not produced, Connelly authorized the discussion by requesting the public hearing. An objectively reasonable person would have expected the release of the information.

Connelly's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 We rely on the Borough's Statement of Undisputed Material Facts, which was appropriately supported by a certification of the Borough Administrator, George S. Jackson. See R. 4:46-2(a). Plaintiff filed an opposing letter brief, but did not file an opposing statement of undisputed facts, nor provide other competent evidence under Rule 1:6-6. Therefore, "all material facts in the movant's statement which are sufficiently supported will be deemed admitted." R. 4:46-2(b).

2 Before filing the complaint, Connelly filed a tort claim notice alleging the Borough illegally disclosed records that "identified [him] as a patient treated for drug use under a federally mandated program." He also wrote to the Borough Administrator's assistant, alleging that the Borough violated various federal regulations and sought protection under the Conscientious Employee Protection Act. N.J.S.A. 34:19-1 to -14.

3 The court also discerned and dismissed possible claims under CEPA, and 42 C.F.R. 2.1 (2014), which Connelly had mentioned in his complaint, but did not maintain in opposition to the Borough's motion. As for a CEPA claim, the court noted the Borough's argument that there was no showing of a causal connection between the adverse employment action and his later complaint to the Borough that it violated federal confidentiality requirements. Regarding federal transportation regulations the Borough argued that there was no private right of action for a violation of regulations, 49 C.F.R. 40.323(a)(1) (2014), issued under a provision of the Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C.A. 31306, because the United States Department of Transportation alone was authorized to enforce the law. 49 U.S.C.A. 521(b)(1)(A).