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Nicoletta v. North Jersey District Water Supply Commission

Decided: July 6, 1978.


On certification to the Superior Court, Appellate Division.

For reversal -- Chief Justice Hughes and Justices Mountain, Pashman and Handler. For affirmance -- Justices Sullivan, Clifford and Schreiber. The opinion of the court was delivered by Hughes, C.J. Pashman, J., concurring. Schreiber, J., dissenting. Justice Sullivan and Justice Clifford join in this opinion.


We certified this case in order to examine an unpublished Appellate Division holding adverse to the plaintiff-appellant, hereafter "Sergeant Nicoletta" or "Nicoletta." He had been discharged from his employment as a sergeant on the "Wanaque Reservoir Police Force." He challenged the validity of that termination in an action commenced in the Chancery Division. There he alleged that he had been discharged without fair notice and hearing of the charges against him, in violation of his constitutional right to due process.*fn1 By way of remedy he sought reinstatement to his position, the award of back pay for the period elapsed since his assertedly unlawful discharge, and such other relief as the court might deem "just and proper."

After hearing on return of an order to show cause, the Chancery Division judge decided that the issue belonged, by

rule, in the Appellate Division. R. 2:2-3(a) (2). He transferred it thereto for it to review the final decision and action of Nicoletta's employer as a state administrative agency.

The Appellate Division first remanded the matter to such employer, the defendant-respondent North Jersey District Water Supply Commission (hereafter "Commission"),*fn2 to amplify the record by furnishing transcripts of "hearings" and basic findings of fact associated with the discharge of Sergeant Nicoletta. That being done, and the appeal having been argued, the Appellate Division decided that the findings of the Commission "amply support[ed] the result reached, viz., the termination of * * * employment" and that it saw "no sound reason or justification for disturbing that result." This in deference to the appellate restraint recommended in State v. Johnson, 42 N.J. 146, 162 (1964).

It is not suggested by the record here that Sergeant Nicoletta was an employee ousted from a fixed term or was other than an employee at will, unprotected by any statutory tenure, contractual commitment or collective negotiation agreement. Nor did he enjoy Civil Service tenure or other protection. See note 2, supra. In such circumstances, under the common law, the employer, even though a public employer, has the right to discharge such employee with or without cause. English v. College of Medicine and Dentistry, 73 N.J. 20, 23 (1977). Sergeant Nicoletta nevertheless

insists that the incidents of his dismissal and the very statute empowering it were such as to violate his constitutional rights and entitle him to the relief sought, a contention essentially ignored in the Appellate Division disposition.

While the factual and procedural background is somewhat tangled, with some facts in dispute, it is clear enough, in any aspect, to project sufficient ground for our decision. It was apparent that a violent physical altercation had taken place at police headquarters between Sergeant Nicoletta and a fellow officer, Patrolman Russomanno. Nicoletta minimized his participation throughout, but Russomanno and several other fellow policemen onlookers pictured Nicoletta as the aggressor in three separate physical attacks on Russomanno, from which Nicoletta had to be restrained with force and with some difficulty. Shortly after the headquarters fight, Sergeant Nicoletta received a telegram advising him that he was suspended indefinitely without pay from his position. A few days later he received a letter inviting him to attend a meeting with the Commission to "confer on complaints that [he] did not follow requests of Chief George Destito [of the Wanaque Reservoir Police Force]." He attended this meeting on April 10, 1974, with counsel, as did Russomanno with his counsel, and met with some but not all of the Commission members, as well as the Commission counsel.

At this meeting the initial subject of interrogation by Commission counsel of Nicoletta and Russomanno had to do with the fight between them. Their accounts differed widely in details unnecessary to discuss here. Nicoletta (as was Russomanno) was afforded full opportunity, with the guidance of counsel, to present his version of the altercation. The inquiry then broadened to other alleged misdeeds and activities of Nicoletta such as his previous improper use of firearms, his filing of a belated and allegedly false report in derogation of Russomanno (involving an unconnected incident) and questions concerning the references he had listed in his original employment application. Here again

there was no restriction on Nicoletta's explanation, with advice of counsel, of his position on such matters.

None of these subjects, however, including the fight, had been identified in the letter (notice) which had summoned Sergeant Nicoletta to the conference. The record bespeaks the broad scope of inquiry, at the initial conference and at a later "hearing," leading to the Commission's final action.

The Commission's findings of fact were:

1. That on March 19, 1974 Sgt. Nicoletta without provocation initiated a violent altercation with Ptl. Russomanno in the presence of other members of the constabulary.

2. [T]hat Sgt. Nicoletta attempted to persuade Ptl. Saum not to report the assault upon Russomanno to higher authorities, in violation of his duties as a police officer.

3. That Sgt. Nicoletta deliberately withheld for two months a report of an alleged criminal episode, but entered a report attributing culpability to Ptl. Russomanno following the altercation, in an effort to discredit Russomanno without regard to his duties as a police officer.

4. That Sgt. Nicoletta engaged in conduct wholly inconsistent with his position and duties in the constabulary in that he had on several occasions engaged in repeated episodes of violent tempermental [ sic ] outbursts directed to other members of the force.

5. That Sgt. Nicoletta was incapable of maintaining discipline and morale among his subordinate officers due to his own behavior, including the abuse of brother officers.

The Resolution of May 9, 1974, dismissing Nicoletta read:

WHEREAS, the Commission has conducted extensive examination into the subject of the qualifications of Nicholas Nicoletta to meet the requirements for employment as a Patrolman on the Police force of the N.J.D.W.S.C., including an examination of his conduct as a police officer and re-examination of his pre-employment qualifications, extensive hearings with regard to various acts and conduct and it appearing that there has been good cause shown, it is

RESOLVED, that the employment of Nicholas Nicoletta be terminated as of March 27, 1974.

About a week after the first "hearing" some members of the Commission had another meeting ("hearing"), of which Sergeant Nicoletta was not specifically advised and which

he did not, of course, attend. However, he and counsel had been advised on April 10 that the Commission would be pursuing its investigation by interviewing other witnesses. He was invited by counsel for the Commission to suggest anyone else having knowledge of the facts, as follows:

No request was made by Nicoletta or his counsel to be present at such interrogation. At that meeting, which occurred on April 16, Chief Destito and six other police officers gave their version of circumstances associated with the fight, and expressed other views as to Nicoletta's stability as a police officer. Shortly thereafter the Commission adopted its Resolution terminating Sergeant Nicoletta's employment.

The Commission minutes of May 9, 1974, disclose a further invitation to counsel to Nicoletta (who appeared with him at this final Commission meeting on the subject) to add any "material which he felt would be useful to the consideration of [the] matter." At that final confrontation, a voluntary resignation of Nicoletta was offered and tentatively accepted by the Commission but was later, on the same day, withdrawn by Nicoletta. The Commission minutes disclose:

Counsel Teltser further informed [the Commission] that Mr. Hickey [Nicoletta's counsel] requested the Commission to accept the resignation of Mr. Nicoletta to save him the embarrassment of a judgment which could be adverse. Counsel Teltser responded that based on his understanding, he predicted the Commission would accept Mr. Nicoletta's resignation, and the Commission would not be inclined to penalize Mr. Nicoletta any more than would naturally occur by merely following the requirements of the Commission to follow normal procedure. * * *

Counsel Teltser stated after approval of the Commission for Mr. Nicoletta to present his letter of resignation, Mr. Hickey, in the

presence of Mr. Nicoletta, informed counsel Teltser they would prepare and return to the Commission within one hour a letter of resignation compatible with the Commission's discussion. Counsel Teltser received a phone call from Mr. Hickey within the hour informing that Mr. Nicoletta had changed his mind and would not submit his resignation nor appear again at the Commission.



We shall pass various procedural and other questions involved below, in order to examine the meritorious issue projected by the petition for certification, on the basis of which we agreed to review the case. That is to say: What due process or like right is owing to an employee such as Nicoletta, in the circumstances presented here, incident to the termination of his public employment?

We have seen that such termination need not be predicated on just cause, and accordingly no "property" interest is implicated, such as to invoke the due process shield. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The "property" interest contemplated by the Fourteenth Amendment may take many forms over and above the ownership of tangible property. See Fuentes v. Shevin, 407 U.S. 67, 86, 92 S. Ct. 1983, 1997, 32 L. Ed. 2d 556, 573 (1972); see generally Reich, The New Property, 73 Yale L.J. 733 (1964). But in this context the key concept is "entitlement," such as involved in statutory eligibility for welfare benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); tenure employment, Slochower v. Board of Higher Educ., 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956); contractual right to employment, Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); a clearly implied promise of continued employment, Connell v. Higginbotham, 403 U.S. 207, 91 S. Ct. 1772, 29 L. Ed. 2d 418 (1971), or the like. The chief ingredient of this kind of "property" interest such as to quicken the right

to protection by procedural due process is a "legitimate claim of entitlement." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709, 33 L. Ed. 2d at 561. As we have seen, the statute here subjects the duration of employment to the will of the employer and as against the exercise of such will, Nicoletta had no "entitlement" to employment. His status may be analogized to that of the respondent in Roth:

[T]he terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment. [408 U.S. at 578, 92 S. Ct. at 2710, 33 L. Ed. 2d at 561 (emphasis in original) (footnote omitted)].

Nor does the present case involve an attempt to circumvent a constitutional right such as free speech, in which event there might be, as mentioned by Justice Stewart in Roth, "a different case." Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Williams v. Civil Service Commission, 66 N.J. 152 (1974). But see, where there are multiple causes for dismissal, Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).

A "property" interest aside however, it is asserted that the circumstances of Nicoletta's dismissal involved a "liberty" interest on his part within the intendment of the Fourteenth Amendment. The Supreme Court, as it recalled in Roth, "has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process." Board of Regents v. Roth, supra, 408 U.S. at 572, 92 S. Ct. at 2706, 33 L. Ed. 2d at 558. This "liberty" includes "not merely freedom from bodily

restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of * * * conscience, and generally to enjoy those privileges long recognized * * * as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923).

The Roth Court distinguished a case which might imperil these rights:

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515, 519. * * * In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent's interest in his "good name, reputation, honor, or integrity" is at stake.

Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For "[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury * * *." Joint Anti-Fascist Refugee Committee v. McGrath [341 U.S. 123, 185, 71 S. Ct. 624, 655, 95 L. Ed. 817, 861] (Jackson, J., concurring). See Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L. Ed. 131, 135. The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities "in a manner * * * that contravene[s] * * * Due Process," Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S. Ct. 752, 1 L. Ed. 2d 796, 801, 64 A.L.R. 2d 288, and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Committee on Character, 373 U.S. 96, 103, 83 S. Ct. 1175, 10 L. Ed. 2d 224, 229, 2 A.L.R. 2d 1254.

[408 U.S. at 573-74, 92 S. Ct. at 2707, 33 L. Ed. 2d at 558-59 (citations & footnote omitted)].

These concepts direct our attention again to Williams v. Civil Service Commission, supra, 66 N.J. 152, 156-57:

In this State a rule of the Civil Service Commission authorizes the Chief Examiner and Secretary of the Commission, with respect to any applicant who shall at any time theretofore "have been removed * * * from the public service * * *" to do any of the following:

1. Reject the application of a person for admission to an examination;

2. Refuse to test an applicant;

3. Refuse to place the name of a person on the employment list;

4. Refuse to certify the name of an eligible person; or

5. Remove from the employment list the name of an eligible person. [ N.J.A.C. 4:1-8.14]

Thus removal from the public service -- as has occurred to this plaintiff -- may indeed have imposed upon him a stigma or potential disability, seriously affecting his liberty to seek future employment in a position which falls within the domain of the civil service regulations.

We do not consider here, for three reasons, the bearing on Nicoletta's reputation of the strong charges of wrongdoing included in the Commission's eventual findings of fact, supra, which were filed only in response to the remand direction of the Appellate Division. It cannot be overemphasized that Nicoletta's employment was terminated for "cause," which went to the heart of the responsibilities of a law enforcement official. Thus, in this case, the disclosure of reasons occurred after the termination for cause and the accrual of constitutional injury.

In addition, as perceptively noted in the dissent of our colleague Justice Schreiber, the United States Supreme Court has distinguished between public and private disclosures or nondisclosures of reasons. It stated in Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), that:

In this case the asserted reasons for the City Manager's decision were communicated orally to the petitioner in private and also were

stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his "good name, reputation, honesty, or integrity" was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation of either explanation would penalize forthright and truthful communication between employer and employee in the former instance, and between litigants in the latter. [ Id. at 348-49, 96 S. Ct. at 2079-80, 48 L. Ed. 2d at 692].*fn3

Contrary to Bishop, where the original firing was allegedly for "no reason" or for reasons which were not disclosed or publicized but only came to light upon the insistence of the employee, in this case the revealment of reasons was elicited in the context of litigation instituted by the employee based on his legitimate assertion of constitutional injury stemming from the original firing for cause.

Third, we agree with Justice Schreiber that the Supreme Court in Bishop and Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), appears to have receded from the dictum of Roth concerning the stigmatic legal implications of a discharge for blameworthy cause. In Paul, the Court stated:

While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause. [ Id. at 701, 96 S. Ct. at 1160-61, 47 L. Ed. 2d at 414].

It is unnecessary to probe and explore the scope of ambivalence in the treatment of this "reputation-stigma" factor by the United States Supreme Court in Board of Regents v. Roth, supra; Bishop v. Wood, supra; Paul v. Davis, supra; and Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Nor need we determine the applicability of our State constitutional guarantee of due process, which has its source in N.J. Const. (1947), Art. I, par. 1; Township of Montville v. Block 69, Lot 10, 74 N.J. 1 (1977); Cunningham v. Department of Civil Service, 69 N.J. 13 (1975); or, the firmly-established New Jersey "fairness and rightness" doctrine. State v. Deatore, 70 N.J. 100, 109-12 (1976); Donaldson v. Board of Educ., 65 N.J. 236, 242-43 (1974); Rodriguez v. Rosenblatt, 58 N.J. 281, 294-96 (1971); Monks v. Parole Bd., 58 N.J. 238, 249-50 (1971); State v. Kunz, 55 N.J. 128, 144 (1969).

For there is a much more narrow, yet palpable, ratio decidendi upon which to rest our decision, a ground conspicuously absent in Roth, Bishop and Paul. In the present case, as in Williams, the removal of the employee from public employment per se exposed him to potential disqualification from further public employment. As indicated in Williams, supra, the source of this disablement is N.J.A.C. 4:1-8.14, which provides in pertinent part:

(a) The Chief Examiner and Secretary shall take the following actions for any cause listed in subsection (b) of this Section or for any other good cause:

1. Reject the application of a person for admission to an examination;

2. Refuse to test an applicant;

3. Refuse to place the name of a person on the employment list;

4. Refuse to certify the name of an eligible person; or

5. Remove from the employment list the name of an eligible person.

(b) Any of the following shall constitute good cause for such action by the Chief Examiner and Secretary against any prospective employee who:

6. Has been removed or has resigned not in good standing or has resigned in lieu of removal from the public service, or whose record of employment, public or private, has been unsatisfactory for any reason which casts substantial doubt upon the person's capacity to perform satisfactorily the duties of the position for which the application has been filed or the test held.

[ N.J.A.C. 4:1-8.14].

No case, including Bishop and Paul, holds, or even suggests, that the foreclosure from future employment opportunities by operation of state law is less than a protectible liberty interest within the meaning of the Fourteenth Amendment. The fundamental, preliminary point, reiterated recently by the Supreme Court in Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9-12, 98 S. Ct. 1554, 1560-61, 56 L. Ed. 2d 30, 39-40 (1978), is that the underlying substantive liberty or property interest is defined with reference to state law. In Williams, supra, Justice Mountain characterized the disabling consequences of termination from public service. He wrote:

Thus removal from the public service -- as has occurred to this plaintiff -- may indeed have imposed upon him a stigma or potential disability, seriously affecting his liberty to seek future employment in a position which falls within the domain of the civil service regulations. [66 N.J. at 157].

Since Nicoletta has been "removed" from the public service, the Chief Examiner and Secretary of Civil Service now has "good cause" to invoke all the sanctions of N.J.A.C. 4:1-8.14(a), including automatic disqualification from future state service.

The essential impetus of Roth, Paul and Bishop buttresses the conclusion that such a concrete injury is a protectible liberty interest. In Roth, the Supreme Court stated that "'[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury * * *.'" 408 U.S. at 574, 92 S. Ct. at 2707, 33 L. Ed. 2d at 599. In Paul the Court quoted with approval -- indeed, even ...

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