On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz, Justices Pashman, Schreiber, Handler and O'Hern. For affirmance -- Justices Clifford and Pollock. The opinion of the Court was delivered by Schreiber, J. Pollock, J., dissenting. Justice Clifford joins in this dissent.
The principal question presented in this case is whether the plaintiff, an attorney for a county welfare board, who was not continued in employment because of his political beliefs, was deprived of his First Amendment rights.
Plaintiff's verified complaint in lieu of prerogative writs sought to compel the defendant Union County Welfare Board (Board) to retain plaintiff in his position as legal assistant to the Board. Plaintiff also charged Harry Pappas, then Chairman of the Union County Democratic Committee, the individual members of the Union County Welfare Board, and the Union County Democratic Committee with violations of 42 U.S.C. §§ 1983, 1985 and 1986. The trial court granted summary judgment for the defendants.
The plaintiff appealed. The Appellate Division, holding that there were factual issues to be resolved, reversed and remanded. We granted defendants' petitions for certification and plaintiff's cross petition. 85 N.J. 485 (1981).
Plaintiff's contentions are twofold. He argues first that he is a tenured employee by virtue of N.J.S.A. 44:7-9 and may be removed only for just cause after notice and hearing. Second, he asserts that the refusal to continue him as legal assistant was based solely upon his political affiliation and consequently violated his First Amendment rights. The verified complaint and affidavits furnish the factual backdrop.
Plaintiff, an attorney-at-law and member of the New Jersey Bar, was hired by the Board as a legal assistant for one year. The term began on July 5, 1977 and ended on July 4, 1978. Plaintiff learned on June 19, 1978 that he would have some trouble being reappointed because Harry Pappas, the new Democratic County Chairman, had not recommended him. Pappas was offended because plaintiff and his friends, members of the New Democratic Coalition, had opposed Pappas's election as Democratic County Chairman. Plaintiff spoke to several Board members who confirmed that they would not vote for him
because the "Party" did not want it. Plaintiff was not reappointed as legal assistant.
The legal assistant's position was part-time, 70 hours per month, and the annual salary was $10,154. The job was not within the classified civil service and plaintiff conceded before the trial court that he was not entitled to protection under the civil service law. Plaintiff contends for the first time in his cross petition for certification that his position was "classified."
Plaintiff claims that as a legal assistant he was a nonpolicymaking and nonconfidential employee. He stated during the oral arguments before the trial court and this Court that he did not participate in making Board policy, but only applied it. For example, he would evaluate a case to determine if there was fraud and transmit the matter to the prosecutor in accordance with Board policy that fraud cases involving more than $500 be submitted for prosecution. Plaintiff also claimed that he did not have the same confidential attorney-client relationship with the Board that an attorney has with a private client.
The trial court found that the Board has authority to retain counsel for a specific period of time and then within its discretion retain someone else. The plaintiff had not been discharged; he simply had not been rehired. The trial court stated that plaintiff's legal opinions were relied upon by the Board and indicated that he held a policymaking position. The court further found that plaintiff had not been deprived of a constitutionally protected property or liberty interest contrary to the Fourteenth Amendment. Finally, it pointed out that N.J.S.A. 44:7-9 did not cloak plaintiff with tenure as legal assistant, particularly in view of the statutory language and the regulations of the Department of Human Services, Division of Public Welfare, which exclude legal counsel for county welfare boards from civil service coverage.
The Appellate Division agreed that plaintiff did not have a valid claim to hold employment indefinitely during good behavior. However, the Appellate Division remanded the matter to
the trial court to determine if plaintiff was discharged solely for political reasons and, if so, whether plaintiff occupied a position for which political affiliation was an appropriate job requirement. The Appellate Division's analysis differed somewhat from the trial court's since the Appellate Division had the benefit of the United States Supreme Court opinion in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), decided after the lower court's opinion.
We first address plaintiff's contention that he was entitled to protection under N.J.S.A. 44:7-9, a statute governing county welfare boards.
N.J.S.A. 44:7-9 provides generally for the organization of the county welfare boards. It states:
All employees of the county welfare board shall hold their office or employment during good behavior, and may be removed upon written charges and after a hearing, due notice of which shall be given therefor by the county welfare board, for misconduct, neglect, incompetency, or other just cause.
The provision then continues:
All paid officers and employees of any county welfare board, except any attorney serving as legal counsel, which county welfare board operates under the provisions of Title 11, Civil Service, shall be and the same hereby are classified in the competitive class of the classified service. . . . [emphasis supplied]
Plaintiff claims that irrespective of the civil service statute (Title 11), once he became an employee of the county welfare board he was entitled to hold that office during good behavior and therefore he had tenure.
This contention is misplaced. The above statute contemplates two distinct methods under which a county welfare board may operate. If the county has not elected to make the welfare board's employees subject to civil service, then they would be protected under the general provision in N.J.S.A. 44:7-9 quoted in the first paragraph above. If an election has been made, then Title 11, Civil Service, governs. When that occurs, however, the second paragraph of N.J.S.A. 44:7-9 quoted
above excludes attorneys serving as legal counsel from the classified service and consequently from the protection afforded by that classification.
Since Union County had elected to place its employees under the aegis of civil service, plaintiff as legal assistant fell within the unclassified category. Plaintiff admitted at the trial that his status has always been unclassified. His signed request for personnel action submitted to the Department of Civil Service upon his appointment reflected that his position was unclassified. The uncontradicted affidavit of the county personnel director asserted that plaintiff's position had always been in the unclassified service. Indeed, the statutory language explicitly excludes from the classified service attorneys serving as legal counsel to county welfare boards.*fn1
Under the Fourteenth Amendment a public employee may not be deprived by the State of "property" or "liberty" without due process of law. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). The Supreme Court has held that a public employee who has no statutory or contractual entitlement to his job has no property interest. Thus, an employee hired at will or one whose term of office has expired has no entitlement to the position and may not prevail on a claim that loss of the employment constituted deprivation of property. See Board of Regents v. Roth, ...