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FARLEY v. NORTH BERGEN TWP. BD. OF EDUC.

January 27, 1989

RAYMOND P. FARLEY, Plaintiff,
v.
NORTH BERGEN TOWNSHIP BOARD OF EDUCATION, a body politic and corporate; HENRY HELSTOSKI, as Superintendent of the Schools of North Bergen Township and individually; and JOHN DOE, being intended to be the names of all persons, presently unknown to plaintiff, that may have participated in the acts alleged herein, Defendants



The opinion of the court was delivered by: WOLIN

 In this action brought under 42 U.S.C. § 1983, plaintiff Raymond P. Farley moves for summary judgment precluding defendants from re-litigating certain factual issues already decided by administrative proceedings in the State of New Jersey. Defendants North Bergen Township Board of Education ("the Board") and Henry Helstoski cross-move for summary judgment dismissing plaintiff's action. For the reasons set forth below, the Court will grant plaintiff's motion as against the Board, and preclude the Board from relitigating factual issues relating to Farley's transfer from his job as Principal, leaving open only the issue of damages. The Court denies plaintiff's motion, however, as against Helstoski. The Court also denies defendants' cross-motions for summary judgment.

 I. BACKGROUND

 On December 23, 1985, plaintiff brought this action under 42 U.S.C. § 1983, alleging that the action of the Board in transferring him without his consent from his position of Principal of the North Bergen High School to the newly created, untenured position of Supervisor of Instruction deprived him of property without due process of law in contravention of the Fourteenth Amendment. The disputed transfer of Farley took place on December 22, 1983, at a special meeting in which the Board appointed Farley to the position of Supervisor of Instruction upon the recommendation of Superintendent Helstoski. Farley objected to his transfer from the tenured position of Principal to the new, untenured position of Supervisor of Instruction, which was created by the Board on November 22, 1983 and subsequently revised at the December 22, 1983 special meeting of the Board.

 Plaintiff contends that he was transferred out of his position as Principal in order to make it available for a political supporter of the Superintendent. That political supporter, Raymond Dalton, was appointed acting principal of North Bergen High School at the special meeting held by the Board on December 22, 1983.

 After his transfer, plaintiff instituted an administrative proceeding in the Office of Administrative Law for the State of New Jersey. The Administrative Law Judge considered the conflicting versions of why Farley was transferred and concluded that the reassignment of Farley from principal to Supervisor of Instruction was nonconsensual and in violation of his statutory rights of tenure and seniority. The ALJ also found that the Board acted improperly in establishing the position of Supervisor of Instruction.

 The ALJ's decision was subsequently reviewed by the Commissioner of Education. In a February 21, 1985 decision, the Commissioner found that the Board did not act improperly in creating the Supervisor of Instruction position. However, the Commissioner upheld the ALJ's finding that the Board acted in bad faith in transferring Farley, without his consent, to the Supervisor of Instruction position. The Commissioner explicitly found that the testimony of Superintendent Heltoski that Farley's removal was not motivated by the desire to give the principal job to Dalton was "not credible." Therefore, the Commissioner ordered that Farley be reinstated as Principal of North Bergen High.

 In December, 1985, plaintiff brought the present action. Plaintiff now moves for summary judgment, arguing that the Commissioner's decision should collaterally estop defendants from relitigating the facts surrounding Farley's transfer, apart from the issue of damages. Defendants, the Board and Heltoski, cross-move for summary judgment.

 II. DISCUSSION

 In their cross-motions, defendants challenge the validity of plaintiff's 42 U.S.C. § 1983 action. As this is a threshold question, the Court will first consider defendants' cross-motions for summary judgment and then, in turn, consider plaintiff's motion to invoke collateral estoppel.

 A. Defendants' Cross-Motions for Summary Judgment

 Plaintiff asserts that the Board's act of transferring him without his consent from his tenured position as Principal of North Bergen High School to the newly created position of Supervisor of Instruction deprived plaintiff of a property right without due process, entitling plaintiff to damages under 42 U.S.C. § 1983. Defendants contend that plaintiff has not suffered any cognizable deprivation of a property right.

 The Supreme Court has held that certain intangible rights and benefits created by state rules or understandings can be property rights for purposes of the due process clause of the Fourteenth Amendment. Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S. Ct. 1148, 1155, 71 L. Ed. 2d 265 (1982). In particular, tenure of a government employee is generally considered a "legitimate claim of entitlement" which cannot be "arbitrarily undermined" without implicating the due process clause. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). See also Stana v. School Dist. of City of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985) ("Property interests are often expressly created by state statutes or regulations, but they can also arise from written or unwritten state or local government policies or from 'mutually explicit understandings' between a government employer and employee").

 In New Jersey, tenure is conferred upon educational personnel according to the statutory guidelines as set out in N.J.S.A. § 18A:28-5. Plaintiff, as a tenured Principal, could only be transferred from his position to another position with his consent, according to the terms of N.J.S.A. § 18A:28-6, which states:

 
Tenure upon transfer or promotion
 
Any such teaching staff member under tenure or eligible to obtain tenure under this chapter, who is transferred or promoted with his consent to another position covered by this chapter on or after July 1, 1962, shall not obtain tenure in the new position until after:
 
(a) the expiration of a period of employment of two consecutive calendar years in the new position unless a shorter period is fixed by the ...

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