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Dyke v. Otlowski

Decided: December 7, 1977.


Furman, J.s.c.


Plaintiffs Friedman and Winnicki contend their discharges from employment with the City of Perth Amboy were in violation of their rights to their own political beliefs and associations under the First and Fourteenth Amendments to the United States Constitution. After a change in the city administration as the result of a nonpartisan election in May 1976 (N.J.S.A. 40:69A-1 et seq.), Friedman was ousted by defendant Otlowski, the new Mayor, from his job as Senior Housing Inspector and Winnicki from hers as Supervisor of Senior Citizens Activities. Both were without Civil Service or other tenure.

Their action is in the Chancery Division for a declaratory judgment that their discharges from employment were invalid and for an injunction to compel reinstatement, remedies indistinguishable from prerogative writ relief (R. 4:69) against a municipality in the Law Division to vacate a wrongful discharge from employment. See, e.g., Perrapato v. Rose , 83 N.J. Super. 245 (App. Div. 1964). Plaintiffs also seek damages for violation of their civil rights under 42 U.S.C.A. § 1983.

Whether venue should have been transferred to the Law Division (R. 4:31(a)(2)) is without practical significance. The Chancery Division, having retained the action, may provide full legal as well as equitable relief. N.J. Const.

(1947), Art. VI, § III, par. 4; Asbestos Fibres, Inc. v. Martin Laboratories, Inc. , 12 N.J. 233, 239 (1953).

Elrod v. Burns , 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 547 (1976) is the controlling constitutional authority. According to the concurring opinion of two justices (at 375, 96 S. Ct. at 2690) a nonpolicymaking, nonconfidential governmental employee cannot be discharged from a job "that he is satisfactorily performing upon the sole ground of his political beliefs." The binding stare decisis effect of Elrod is limited to the concurring opinion; a plurality of three justices only joined in the opinion of the court. Cf. Baker v. State , 15 Md. App. 73, 289 A.2d 348 (Ct. Spec. App. 1972), cert. den. 410 U.S. 969, 93 S. Ct. 1449, 35 L. Ed. 2d 705 (1973); People v. Martin , 192 Misc. 192, 83 N.Y.S. 2d 201 (Cty. Ct. 1948).

Factual issues must therefore be resolved whether Friedman and Winnicki were nonpolicymaking and nonconfidential employees of the City of Perth Amboy who were discharged solely for political reasons. See Rosenthal v. Rizzo , 555 F.2d 390 (3 Cir. 1977), sustaining a denial of summary judgment because of a factual issue whether an administrative assistant in the Industrial Relocation Department of the Philadelphia Redevelopment Authority was a nonpolicymaking and nonconfidential employee. The circumstance that the City of Perth Amboy municipal election was nonpartisan does not diminish or alter the constitutional protection against infringement of plaintiffs' political beliefs and associations.

The plurality opinion in Elrod alludes to the difficulty of factual determinations between what are policymaking and nonpolicymaking governmental employments:

No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number or responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities

may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. [427 U.S. at 367-368, 96 S. Ct. at 2687]

Plaintiffs in Elrod were employees of the sheriff's office. In Illinois State Employees Union v. Lewis , 473 F.2d 561 (7 Cir. 1972), cert. den. 410 U.S. 943, 93 S. Ct. 1370, 35 L. Ed. 2d 609 (1973) a forerunner of Elrod , license examiners and building and clerical employees were held to be nonpolicymakers and thus shielded from political firing. Parallel holdings applied to the field coordinator for the training of adult educators under a federal program in Morales ...

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