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Endress v. Brookdale Community College

Decided: August 27, 1976.


Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.


These consolidated appeals are from a judgment in favor of plaintiff reinstating her as a member of the faculty of defendant college with back pay and other benefits, and awarding her damages, both compensatory and punitive, plus counsel fees and costs.


On June 27, 1974 plaintiff Patricia H. Endress, an Assistant Professor of Journalism at Brookdale Community College, a public institution of higher learning located in Lincroft, Monmouth County, was discharged from her employment and her contract for the next academic year was rescinded*fn1 by resolution adopted by the college board of trustees upon the recommendation of the president.

The controversy which led to Professor Endress' dismissal and this litigation had its origin in an editorial written by her which appeared in the April 26, 1974 edition of The Stall , the student newspaper of which she was the faculty advisor. In substance, it accused the chairman of the board of trustees of a conflict of interest in allegedly making "a deal" whereby his nephew's company received a contract from the college for the furnishing of audio-visual equipment.

An accompanying article on the same subject was written by her assistant, a "journalism intern."

In recommending the dismissal to the board of trustees the president of the college asserted as the alleged causes for such action plaintiff's violation of "both the tradition established under Board policy, and the philosophical platform and goals of the College as the same pertain to freedom of the press and student responsibility for the college newspapers," and of the "editorial prerogatives of the student editor and the student staff," in ordering and directing the editor of the newspaper "to publish certain material without his approval," and in causing the publication of "libelous matter contrary to accepted journalistic standards."

Professor Endress thereupon filed a multi-count complaint, in which the Brookdale Community College Faculty Association joined as plaintiff,*fn2 against the college; and also, in both their official and individual capacities, against W.P. Corderman, chairman of the board of trustees; Donald H. Smith, president of the college, and the other members of the board of trustees. The complaint charged, among other things, that her employment had been wrongfully terminated, that Corderman and Smith had wrongfully and maliciously interfered with her existing contractual relationship, and that they had conspired among themselves and the other board members to breach that contract; that Smith and the members of the board of trustees had libeled her by the publication of a letter charging her with violating her duties and responsibilities,*fn3 and that she was

discharged solely by reason of her exercise of her constitutional right of "freedom of the press, association and speech."

Defendants contended generally that the discharge of Professor Endress and the rescission of her new contract were (we quote from the oral decision of the trial judge) "all due and proper actions incumbent upon them in the exercise of their duties in their respective capacities, were in no way arbitrary, capricious or conspiratorial, and that the action did not breach any of their respective contractual obligations [with plaintiff]." President Smith asserted, additionally, that he had determined that Professor Endress had violated her duties and obligations as a member of the faculty and as advisor to the college newspaper, and, in accord with his duties and responsibilities, had recommended to the board of trustees the termination of her employment. He denied the existence of any conspiracy, as did Corderman, who also contended that he was not present at the June meeting of the board of trustees and did not participate in the action taken. Leon Zuckerman, one of the trustees, also disclaimed individual responsibility for the action of the board, in that he was absent at the time. Another board member, Joseph E. Clayton, contended that although he attended the board meeting he did not vote affirmatively for the termination and therefore could not be held liable therefor.

At the conclusion of the trial, the judge below, sitting without a jury, entered the following judgment:

1. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith pay to the plaintiff, PATRICIA H. ENDRESS, the sum

of $14,121.00 as back pay for the period of July 1, 1974 through June 30, 1975.

2. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith pay to the appropriate trustee or agency all pension or retirement contributions, in such amount as would have been paid on behalf of plaintiff, PATRICIA H. ENDRESS, had she been employed at BROOKDALE COMMUNITY COLLEGE between July 1, 1974 and June 30, 1975 at an annual salary of $19,121.00.

3. Defendant, BROOKDALE COMMUNITY COLLEGE, shall forthwith issue plaintiff, PATRICIA H. ENDRESS, an employment contract for the period July 1, 1975 through June 30, 1976, as an Assistant Professor of Journalism in the faculty of BROOKDALE COMMUNITY COLLEGE, which contract shall have the same force and effect as though issued for the period July 1, 1974 through June 30, 1975.

4. The aforesaid employment contract for 1975-1976 shall contain compensation for plaintiff, PATRICIA H. ENDRESS, in the amount she would normally have received had she been continuously employed from and after June 27, 1974, including all normal increments, fringe benefits, and contributions to pension or retirement funds.

5. By reason of the violation of the constitutional rights of plaintiff, PATRICIA H. ENDRESS, and in accordance with the provisions of Section 1983 of Title 42 of the United States Code, damages are awarded as follows:

(A) $10,000.00 compensatory damages in favor of plaintiff, PATRICIA H. ENDRESS, against individual defendants, Smith, Clark, Doremus, Fleckenstein, Garrison, Hannah and McAfee, jointly and severally; and

(B) $10,000.00 punitive damages in favor of plaintiff, PATRICIA H. ENDRESS, against each of the defendants, DONALD H. SMITH, MARVIN A. CLARK, MRS. T. PETER DOREMUS, WILLIAM O. FLECKENSTEIN, EARL B. GARRISON, ELLEN HANNAH and WALTER S. McAFEE, individually, for a total of $70,000.00.

6. By reason of the violation of the constitutional rights of plaintiff, PATRICIA H. ENDRESS, and in accordance with the provisions of Section 1983 of Title 42 of the United States Code, attorneys' fees are awarded to WILLIAM S. GREENBERG, ESQ. in the amount of $10,000.00, and shall be paid by all individual defendants named in the preceding paragraph, jointly and severally.

7. Costs are awarded to plaintiff Endress against defendants except Corderman, Clayton and Zuckerman.

8. By reason of the interference with the contractual relationship of plaintiff, PATRICIA H. ENDRESS, and the prospective professional and economic advantage of plaintiff, PATRICIA H. ENDRESS with BROOKDALE COMMUNITY COLLEGE by defendant, DONALD H. SMITH, there shall be judgment for plaintiff, PATRICIA H. ENDRESS, against defendant, DONALD H.

SMITH, with no additional money damages; provided, however, in the event the award of damages under Paragraph Five hereof is reversed on appeal, then there shall be an award of $10,000.00 compensatory damages and $10,000.00 punitive damages in favor of plaintiff, PATRICIA H. ENDRESS, against defendant, DONALD H. SMITH, individually.

9. With respect to the claims of BROOKDALE COMMUNITY COLLEGE FACULTY ASSOCIATION there shall be judgment for defendants.

10. With respect to the claims against defendants, W. PRESTON CORDERMAN and DONALD H. SMITH, as to allegations of conspiracy, there shall be judgment for said defendants.

11. Judgment is entered in favor of defendants Corderman, Clayton and Zuckerman, individually.

The grounds of appeal asserted by Brookdale Community College are that (1) the "termination of the plaintiff, Patricia H. Endress, did not violate any constitutionally protected right," (2) just cause existed for the termination, and (3) specific performance of plaintiff's contract of employment cannot be adjudged. President Smith contends that (1) there was no "legal issue resolved by the court imposing any responsibility" upon him, (2) the assessment against him of additional damages in the event of appellate reversal was without validity, and (3) he "acted in good faith upon facts he believed to be true in the exercise of his discretion and judgment" in recommending the dismissal of plaintiff. He also poses the question, "Is an agent responsible for the actions of his principal?" He asserts, additionally, that "facts revealed after June 27 solidify [his] recommendation to terminate."*fn4 Appellant trustees raise as issues alleged error on the part of the trial judge in awarding (1) "compensatory relief" against them, (2) damages "for a violation of plaintiff's right of due process," (3) punitive damages, and (4) "attorney's fees in an action brought under 42 U.S.C. § 1983"; and also in not

giving credit for the amount of the settlement. (See footnote 3).

The awarding of punitive damages against the individual trustees is also assailed in the brief filed on behalf of amici curiae Atlantic Community College et al.*fn5 The argument advanced is that such damages should not be awarded under 42 U.S.C.A. § 1983 unless "a positive element of conscious wrongdoing has been proven."

The Departments of Education and Higher Education of the State of New Jersey, in an amici curiae brief filed on their behalf by the Attorney General, complain of the failure of the trial judge "adequately to explain the reasons for the awarding of substantial damages against the trustees of a public educational institution." They argue that because such awards "will necessarily have a powerful and undesirable impact upon the State educational system," it is important that they "clearly reflect the application of established legal principles to specific articulated findings of fact." It is contended further that plaintiff should have been required to exhaust her administrative remedies within the Department of Higher Education before bringing her reinstatement action in the courts.*fn6

The National Education Association also submitted an amicus curiae brief in which it argued the correctness of the holding below that the termination of plaintiff's employment violated both her right of free speech and her right to procedural due process, and of the relief granted.


Professor Endress had been advisor to the school newspaper, which was also utilized as a training program for journalism students, from the time she came to work for the college in September 1971. She testified at the trial that she sought to have her students pursue an investigative reporting approach to journalism. While student copy was submitted to her, she had no censorship role and exercised no editorial veto. The student editors were fully responsible for that which was published. Explaining that they were always short staffed, she said that she had written an earlier editorial, as well as two articles, but, she added, she never wrote anything over the objections of the editor and, further, she had never been specifically forbidden by the college administration to write editorials or articles for the newspaper.

It appears that in August 1973, as the result of rumors circulating about the campus concerning several contracts awarded by the college, including the one involving Corderman's nephew, Professor Endress and her assistant thought that an investigation of the matter would be good experience for the students. Accordingly, the project was undertaken in consultation with the editorial staff. Several students were assigned to the investigation and articles on the subject were published.

Professor Endress said that because the student editor-in-chief and other members of the staff were either too busy to write an editorial on the subject, which she considered appropriate, or "did not know what to say," she undertook to prepare the one in question and submitted it, together

with the article, to the editor-in-chief, who expressed no opposition to either. However, several days after publication the editor indicated to her that he was worried and upset because "Duncan Circle [Dean of Student Development] was after him, meaning he wanted to know the things about the paper," and the college administration had issued a statement in which libel was mentioned.

Thereafter, except for the semi-annual faculty evaluation report issued by her superior early in June, which was generally favorable except for the comment that "as advisor of the student newspaper, [she] must resist dominating the editorial policy of the paper * * *," and to which she responded that she would address herself to the comment upon her return for the summer session, she had no other contact with the administration concerning the matter until she learned of her dismissal when she came back from her vacation.

A former student managing editor of the newspaper, who had approved both the article and the editorial in question, testified that she had never been ordered to publish them or subjected to any pressure or coercion.

The student editor-in-chief, one William McGee, gave controversial testimony. Acknowledging that he had read and approved the material before publication, he said that he had not been ordered to do anything with respect to it, but he also revealed that he expressed to Dr. Circle his dissatisfaction with the secrecy with which the matter had been handled in advance of publication and with the failure of those working on the story to tell him about it. In a signed statement he gave to the administration he said that when the editorial and article were presented to him "it represented a loss of my power and function as an editor and I wanted immediately to resign as editor." He also related in it that although he could not be certain who wrote the article and the editorial, "I knew that I was compelled to include both * * * without question * * * "by Professor Endress and her assistant. He said he deemed her

action to be "the unwarranted interference with my function as an editor as well as the violation of what has been the administrative policy toward the Stall." However, in his testimony below, McGee stated that, so far as he knew, "we had no Stall policy." He said further that "I didn't really feel that I had lost any power because I did approve [the article]." Plaintiff's assurance that there was no chance of his being sued for libel "quelled his desire to resign." And, as for being "compelled" to print the story, he said that he had not realized when he gave the statement that the word meant "forced to do so"; rather, it meant to him that "I should run this article" because it seemed to be a good one and he was told the information was correct.

Plaintiff produced as an expert witness a professor emeritus of journalism at Northwestern University in Illinois. He opined that the writing of the editorial was a valid exercise of First Amendment rights and that there was nothing unprofessional in plaintiff's conduct. It was immaterial who wrote these articles and editorials, he said, so long as the editor "had the handling of them."

Defendant's expert, a professor of journalism at Columbia University, was of the view that plaintiff's actions, even if approved by the editorial staff, were not consistent with her functions and duties as a faculty advisor to the newspaper, and constituted a "serious breach of professional ethics."

President Smith's version of the events was that after he read the April 26 edition of the newspaper he asked Dr. Circle and Dr. John F. Gallagher, vice-president for academic affairs, to conduct an investigation. Their reports convinced him that the article and editorial had not been written by students, as the initial inquiries had indicated, but by "Miss Endress or Mr. Karey [her assistant] or both," and he "asked for verification of the statement made to Dr. Circle by the editor-in-chief, Mr. McGee," and a ...

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