JAMESB. O'CONNOR v. ROBERT B. GIANGERUSO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1571-16T3
JAMES B. O'CONNOR, Chief
of Police,
Plaintiff-Appellant,
v.
ROBERT B. GIANGERUSO, Mayor;
LYNDHURST TOWNSHIP BOARD OF
COMMISSIONERS and TOWNSHIP OF
LYNDHURST,
Defendants-Respondents.
___________________________________
Argued April 19, 2018 – Decided May 3, 2018
Before Judges Simonelli, Haas and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-7365-14.
Steven D. Cahn argued the cause for appellant
(Cahn & Parra, LLC, attorneys; Steven D. Cahn,
on the briefs).
Eric M. Bernstein argued the cause for
respondents (Eric M. Bernstein & Associates,
LLC, attorneys; Eric M. Bernstein, of counsel
and on the brief; Dominic P. DiYanni and
Stephanie M. Platt, on the brief).
PER CURIAM
Plaintiff appeals from the Law Division's December 7, 2016
order granting defendants' motion for summary judgment, and
dismissing plaintiff's complaint that alleged defendants violated
the New Jersey Conscientious Protection Act (CEPA),
N.J.S.A.
34:19-1 to -14. We affirm.
The facts, as derived from the evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motion, are fully detailed in Judge William C. Meehan's
comprehensive written decision. Therefore, we recite only the
most salient facts from that decision and, like Judge Meehan, view
them in the light most favorable to plaintiff, the non-moving
party. Polzo v. Cty. of Essex,
209 N.J. 51, 56 n.1 (2012) (citing
Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995)).
The Township of Lyndhurst (Township) has a "commission form
of government" as permitted under the Walsh Act,
N.J.S.A. 40:70-1
to -40:76-27. The five members of its Board of Commissioners
(Board) are elected to serve concurrent four-year terms.
N.J.S.A.
40:75-2. The Board has the legislative authority to introduce and
enact ordinances for "[t]he preservation and enforcement of good
government and the general welfare, order and security of the
municipality."
N.J.S.A. 40:72-3.
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The Board assigns each of the five commissioners to head one
of the Township's five departments, which include the Department
of Public Affairs, the Department of Revenue and Finance, the
Department of Public Safety, the Department of Public Works, and
the Department of Parks and Public Property.
N.J.S.A. 40:72-4 to
-6. The Board also selects one of its members to serve as the
mayor of the Township. At all times relevant to the present
litigation, defendant Robert Giangeruso (mayor) served as Township
mayor and was the Commissioner of the Department of Public Safety.
Plaintiff was the Township Chief of Police and, therefore,
fell under the jurisdiction of the mayor in the Department of
Public Safety.
N.J.S.A. 40A:14-118. Plaintiff asserted that the
mayor had "a history of interfering in the day-to-day operations
of the police department." Among other things, plaintiff alleged
that the mayor directed police officers away from their assigned
tasks "to chauffer him;" had a lieutenant assigned to the narcotics
bureau "as a reward" for the officer's "political patronage"; and
later promoted this officer to a deputy chief position.
Plaintiff also maintained that in the summer of 2013, he
learned that the mayor had Township employees perform contracting
work for the benefit of another employee. Plaintiff reported this
information to the county prosecutor, the Federal Bureau of
Investigation, and the State Attorney General's Office. In 2013
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and 2014, plaintiff filed similar complaints concerning the
mayor's alleged "unlawful hiring practices." Plaintiff alleged
that during those years, the mayor "made specific and direct
threats to 'get even' with" him.
At his deposition, the mayor stated he kept a file of the
complaints plaintiff filed concerning him. He believed that
plaintiff also "went to the newspapers to complain about his hiring
and promotion practices and nepotism within the Township. [The
mayor] also admitted that he was not happy with [plaintiff] going
to the County Prosecutor's Office."
On April 22, 2014, the mayor proposed Ordinance No. 2903-14
(ordinance) for the Board's consideration. At that time, any
member of the police department could be assigned off-duty overtime
work, which involved the assignment of a police officer to
supervise various projects, like road or utility work, performed
by public or private entities. If a private entity was involved,
it would reimburse the Township for the officer's overtime. No
officer was guaranteed this overtime work, but it was assigned on
a seniority basis. This meant that plaintiff, as the Chief of
Police, would likely secure this duty before any of the less senior
officers.
Under the new ordinance, the off-duty overtime assignments
would only be available to "members of the police department having
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a rank of patrol officer, sergeant, lieutenant, or assigned the
rank of detective." The Chief of Police, Deputy Chief, and Captain
would only be eligible for an off-duty overtime assignment if "no
other member of the police department ha[d] volunteered to work
such assignment" or if the assignment was with a "public entity,
such as the Township[,] . . . New Jersey Meadowlands District,
County of Bergen, Lyndhurst Board of Education, [or] State of New
Jersey[.]" For those public projects, any member of the police
department could be assigned to work off-duty overtime "based on
seniority and without regard to rank." On May 13, 2014, the Board
adopted the new ordinance.
As a result, it became more difficult for plaintiff to work
overtime because the assignments were now more readily available
to the less senior officers in the department. Plaintiff claimed
"he lost approximately $16,000 in 2014 for overtime, $35,000 in
2015 for overtime, and over $17,000 in lost overtime through the
end of July 2016."
In June 2014, plaintiff asked to be paid for his unused sick
days. Although plaintiff alleged these requests were routinely
granted in the past, the Township refused to pay plaintiff for his
accumulated leave. The Township explained that pursuant to a
March 24, 2011 amendment to plaintiff's employment contract, he
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or his beneficiary were only "entitled to be paid for unused sick
days upon his retirement or death."
On June 29, 2014, plaintiff filed a two-count complaint in
lieu of prerogative writs against the mayor, the Board, and the
Township. In count one, plaintiff argued that the ordinance
interfered with his authority as police chief and, therefore, he
sought to invalidate the Board's legislative enactment. In count
two, plaintiff sought a declaratory judgment that the mayor's
"ongoing interference with the day-to-day operations of the police
department constitute[d] a violation of [plaintiff's] rights under
[N.J.S.A.] 40A:14-118."
By leave granted, plaintiff later filed an amended complaint,
adding a third count. In the new count, plaintiff alleged that
defendants enacted the overtime ordinance and denied his request
for payment for his unused sick time in retaliation for his
whistle-blowing activities against the mayor in violation of the
CEPA.
Defendants subsequently moved for summary judgment. At oral
argument, plaintiff voluntarily dismissed counts one and two of
the amended complaint and all of his claims against the mayor and
the Board.
Following the argument, Judge Meehan rendered a thorough
written opinion dismissing plaintiff's CEPA claim. As the judge
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noted, the required elements of a successful CEPA action are well
settled. Thus, in order to establish a prima facie case of
retaliatory action under CEPA, a plaintiff must establish that:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing"
activity described in [
N.J.S.A.] 34:19-3(c);
(3) an adverse employment action was taken
against him or her; and
(4) a causal connection exists between the
whistle-blowing activity and the adverse
employment action.
[Lippman v. Ethicon, Inc.,
222 N.J. 362, 380
(2015) (quoting Dzwonar v. McDevitt,
177 N.J.
451, 462 (2003)).]
Judge Meehan first concluded "there [was] no merit to
[plaintiff's] . . . claim that the Township . . . retaliated
against him in June 2014 by not paying him for his accumulated
unused sick days." In so ruling, the judge pointed to the terms
of a March 24, 2011 Memorandum of Agreement (Memorandum) between
plaintiff and the Township that amended plaintiff's employment
contract. This Memorandum specifically stated that plaintiff
"shall be entitled to payment for all accrued time to be paid to
him or his beneficiary in an agreed upon schedule upon his
retirement or death."
7 A-1571-16T3
As the judge observed, plaintiff failed to "provide[] any
evidence that the Township . . . paid him for accumulated, unused
sick days after the Memorandum . . . had been signed. An employer
cannot be said to be retaliating when it is following the terms
and conditions of the employment agreement." Thus, plaintiff was
unable to demonstrate that the Township "took an adverse employment
action against him in June 2014 by not paying him for his accrued
unused sick days[,]" and the judge dismissed this aspect of
plaintiff's CEPA claim.
Judge Meehan then considered plaintiff's sole remaining
allegation, namely, that the Township "violated [the] CEPA because
as the employer of the commissioners [on the Board,] it [was]
responsible for their retaliatory action of enacting an ordinance
that has reduced his overall income." After finding that plaintiff
was no longer asserting that the ordinance was invalid, and had
dismissed all of his claims against the mayor and the Board, the
judge provided two compelling reasons for determining that
plaintiff's CEPA argument failed as a matter of law.
First, Judge Meehan found that the Board commissioners'
action in voting on and enacting the ordinance was a legislative
action for which they were protected by legislative immunity.
Brown v. City of Bordentown,
348 N.J. Super. 143, 148 (App. Div.
2002). Continuing to reference our late colleague Judge Michael
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P. King's decision in Brown, the judge concluded that the Township
enjoyed derivative immunity for the legislative action of the
Board and its five commissioners in enacting the ordinance. Id.
at 151. The judge stated that
[b]esides withholding unused sick pay pursuant
to an employment contract, [plaintiff] has not
alleged that the Township . . . is liable for
any administrative or executive actions taken
by the commissioners. In fact, there is no
allegation that an administrative or executive
action was taken after the [o]rdinance was
enacted.
Because the ordinance was adopted through the normal
legislative process, affected two other senior officers in
addition to plaintiff, and did not prevent these officers from
earning overtime under appropriate circumstances, the judge held
"the evidence in the record fails to show that the [o]rdinance was
directed at a particular employee; rather it [was] nothing more
than traditional legislation" that entitled the Township to
absolute derivative legislative immunity. Therefore, the judge
dismissed plaintiff's CEPA claim based on the Board's enactment
of the ordinance.
Even if this were not the case, however, Judge Meehan found
that plaintiff also failed to establish the fourth element of a
CEPA claim -- a causal connection between the whistle-blowing
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activity and the adverse employment action. The judge explained
that plaintiff
did not provide any evidence that anyone other
than [the mayor] was motivated to pass the
[o]rdinance in retaliation against him. He
has not provided any evidence regarding the
motivation of the four other commissioners.
[Plaintiff] also did not provide any evidence
that [the mayor] had any influence over the
other commissioners.
Under these circumstances, the judge concluded that plaintiff
failed to meet his "burden to prove that but for his whistleblowing
activities, a majority of the commissioners would not have voted
in favor of the [o]rdinance" and, therefore, he dismissed
plaintiff's CEPA claim. This appeal followed.
On appeal, plaintiff raises the same arguments that Judge
Meehan carefully considered and rejected in his cogent written
opinion. Thus, plaintiff asserts the judge "erred in dismissing
[his] claims pursuant to legislative immunity[,]" and "in ruling
[plaintiff] did not have sufficient evidence to prove the fourth
element of his CEPA cause of action."
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court, namely, the
standard set forth in Rule 4:46-2(c). Conley v. Guerrero,
228 N.J. 339, 346 (2017). Thus, we consider, as the trial judge did,
whether "the competent evidential materials presented, when viewed
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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." Town of Kearny v. Brandt,
214 N.J. 76, 91 (2013) (quoting Brill,
142 N.J. at 540). If there
is no genuine issue of material fact, we must then "decide whether
the trial court correctly interpreted the law." Massachi v. AHL
Servs., Inc.,
396 N.J. Super. 486, 494 (App. Div. 2007) (citing
Prudential Prop. & Cas. Co. v. Boylan,
307 N.J. Super. 162, 167
(App. Div. 1998)). We accord no deference to the trial judge's
conclusions on issues of law and review issues of law de novo.
Nicholas v. Mynster,
213 N.J. 463, 478 (2013).
Having considered plaintiff's contentions in light of the
record and applicable legal principles, we are satisfied that
Judge Meehan properly granted summary judgment to defendants and
affirm substantially for the reasons expressed in his December 7,
2016 written opinion.
Affirmed.
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