The opinion of the court was delivered by: ACKERMAN
The issue in this case, following a fifteen day bench trial, is whether the civil rights of plaintiff, Abad Perez, a former Jersey City Police Officer, were violated when he was demoted from the rank of plainclothes detective to uniformed patrolman because he had openly espoused the candidacy of a mayoral incumbent who was defeated in his bid for reelection in 1985.
In Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) and Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), the United States Supreme Court concluded that where the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved a public employee occupying such a position can be replaced based on political party or group affiliation. Here, as the overwhelming evidence shows, fealty to a particular candidate, rather than party, was the unconstitutional criteria utilized for reward or punishment. For the reasons stated infra, I have found that Abad Perez deserved the protection of the United States Constitution and defendants' deprivation of such protection violated plaintiff's first and fourteenth amendment rights.
Before reciting in detail my findings of fact and conclusions of law, I believe something should be said concerning what I perceive to be an unconstitutional misuse of a venerated political practice -- the spoils system. In their respective opinions in Elrod and Branti, Justices Brennan, Stevens, and Powell eloquently dealt with this subject. Nevertheless, I believe that a few more words are in order. Historically, political patronage has played a role in the personnel appointments on the federal, state, and local levels. Indeed, as Justice Powell noted, "the use of patronage in the early days of our Republic played an important role in democratizing American politics." Branti, supra, 445 U.S. at 522 n.1. See also S. Morison The Oxford History of the American People 736-37 (1965). With respect to the use of patronage on the federal level in the nineteenth century, Senator William Marcy of New York once stated that the politicians generally:
"'see nothing wrong in the rule that to the VICTOR belong the spoils of the ENEMY.' Rotation in office was nothing new -- Thomas Jefferson had removed 10 per cent of the officials in John Adams' administration when he took office -- but the phrase 'spoils system' had a dirty ring to it. When during his first eighteen months in office [Andrew] Jackson replaced about the same percentage of appointees, his opponents contended that he had 'introduced corruption into the central government . . . .' The President never denied employing the system; he did deny that it was corrupt. Rotation in office, he explained, prevented government from becoming a continuous 'engine for the support of the few at the expense of the many.'"
1 The American Heritage Pictorial History of the Presidents of the United States 205 (K. Leisch ed. 1968). As stated above, President Jackson never had any qualms about the spoils system:
"His theory, stated in his first annual message, was that 'the duties of all public offices' were so 'plain and simple' that any man of average intelligence was qualified; and that more would be lost by continuing men in office than could be gained by experience. Naturally, when the Whigs won in 1840 they threw the Jackson men out, and when the Democrats came back under Polk, they threw the Whigs out; and so on. The consequences were more power to party organizations, diminishing prestige of the federal civil service, and decreasing efficiency. This sort of thing became so engrained in the American political system that, despite repeated reform legislation, it still continues. [With respect to such proposed reform, in] . . . 1959 Senator Herbert H. Lehman of New York 'called for the eradication of the spoils system in politics,' especially the removal of the judiciary from 'the control of party bosses.'"
S. Morison, supra, at 426-27.
Of course, the spoils system has not been confined to the federal government. In speaking of state politics, one author observed:
"The state machine, a small number of great cities apart, provides the party with all the qualities out of which its character is moulded. It has one single aim -- that of victory at the polls, and its interest in policies is given, not by what they are in themselves, but by the contribution they can make to victory. For victory means jobs for the henchmen of the party in the state; it means the chance of lucrative contracts; it means safeguarding its dependents, very often, from the necessity of earning a living in the ordinary way. The successful machine may put its own lawyers on the courts; it may secure the support of powerful business interests; still more, it may prevent those interests from helping the other side. The machine is essentially a broker of ideas; it sets itself the task of finding out what principles of action are most likely to win a majority. It has to find the right candidates for the right jobs; perhaps even more, it has to prevent the wrong candidates from being chosen. It must make the voters feel that their well-being is directly related to the victory of the party it controls; and to create that feeling it has to have an accurate sense of the influences which count for most in the state. It is not an organization for the discovery of ideas for their own sake; it is an organization of men who come out first for the winning ideas at the right time. Its business is thus to keep its finger on the pulse of public opinion; but it must be able, as it judges public opinion, to work out with precision the weight that attaches to the different elements out of which public opinion is compounded. It reaches out from the state boundaries to the smallest precinct in the area it seeks to capture. Those who control it must know not only how to win the support of the great corporation; they must know as well how to convince a group of poor immigrants, to whom citizenship has just been granted, that their friendship is imperative. They must be able to measure just what volume of reward, the support they gain requires without risking, in the gift of that reward, the good opinion of the mugwumps whose vote determines most elections. They must possess every type of political condottiere, from an orator like Choate to a drill sergeant like Mayor Hague of New Jersey.
H. Laski, The American Democracy: A Commentary and An Interpretation 147-48 (1948).
It can be stated with some confidence that Frank Hague was something more than a "drill sergeant". As one historian recalled, in recounting the totality of the power Hague exerted as "mayor of Jersey City and ruler of New Jersey" for 30 years, Hague "bellowed once in a moment of unguarded candor. . . . 'I am the law.'" Fleming, The Political Machine II: A Case History "I am the Law", in XX American Heritage 33 (June 1969), Mayor Hague engaged in what the author described as "an all-out assault on police laxity" to gain power, project a reformed image of the police department and "open an unparalled number of jobs [for] his dispensation ", ostensibly to stop the "moral decay of the police force." Id. at 35. To this end, Mayor Hague took several steps. For instance, "as many as 125 men were put on trial in just one day for violating departmental regulations. Hundreds of police officers were ruthlessly demoted or dismissed. Into the decimated ranks Hague poured his tough young Horshoe followers, from whom he culled an elite squad of plain clothesmen, called Zeppelins, who wove a web of secret surveillance around the entire force." Id. at 35. Thus a reading of that period of Jersey City's history suggests that what happened to Abad Perez was merely a reflection of "business as usual" and that Abad Perez's problems were part of a historical political continuum.
It is difficult to disagree with Justice Powell's observation that such ". . . patronage hiring practices sufficiently serve important state interests including some interests sought to be advanced by the first amendment to justify a tolerable intrusion on the first amendment interests of employees or potential employees", Elrod, supra, 427 U.S. at 387 (emphasis added). Although "the Court's constitutional holding . . . [regarding the permissibility of patronage dismissals may] displace political responsibility with judicial fiat . . .," Branti supra, 445 U.S. at 534 (Powell, J. dissenting), the egregious facts of this case necessitates a finding that "patronage, . . . to the extent it compels or restrains belief and association, is inimical to the process which undergirds our system and is 'at war with the deeper traditions of democracy embodied in the first amendment.'" Elrod, supra, 427 U.S. at 357, quoting in part Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th 1972), cert. denied, 410 U.S. 928, 35 L. Ed. 2d 590, 93 S. Ct. 1364 (1973). I find for the reasons stated below that the constitutional rights of Abad Perez were intruded upon intolerably.
Upon review of the entire record, and evaluation of the credibility of all of the witnesses, the court enters the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).
Plaintiff began serving as a patrolman in the Jersey City Police Department ("JCPD") on October 12, 1979. Effective October 11, 1982, plaintiff was promoted to the position of detective, and received both a title change from police officer to detective, and a concommitant salary increase in the amount of approximately $ 1248.00.
See Plaintiff's Ex. 18; Attachment A to Plaintiff's Ex. 1. Prior to his 1982 promotion, plaintiff vigorously supported the 1981 election bid of Gerald McCann. The circumstances suggest that as a result of his efforts, he was rewarded with this promotion.
Although the position of detective is not one that the New Jersey Department of Civil Service recognizes,
JCPD views the position of detective as one rank superior to that of a uniformed patrolman, and a position to which an officer may ascend without taking a civil service examination. See Rules 229 & 525 of the Rules and Procedure Manual of the JCPD; Rule 3:182 of the Jersey City Police Manual; Record at 716, 747-48, 751, 831-32, 862 (Adams). Rule 229 provides that "detectives have authority over patrolmen at the scene of any crime." In addition to this supervisory role, the members of the department perceive the position of detective as more prestigous, and seek to hold such a position "because it gives [an officer] more freedom to move around . . . they're in plainclothes . . . [they] [carry] a gold badge . . .," and receive a greater salary. See Record at 629-30, 771, 778-80, 804, 854 (Adams). See also Record at 1008 (Healy) (stating that reassignment from the position of detective to patrolman constitutes a demotion because "when you have the plainclothes [you have a] better chance of getting money than if you're out there in the blue."). See also Record at 651 (Adams).
Plaintiff continued in the position of paid detective
until July 1, 1985. Effective on that date, plaintiff was demoted to the rank of patrolman. See Attachment A to Plaintiff's Ex. 1; Plaintiff's Ex. 33. As stated previously, at issue in this case is whether or not plaintiff was demoted in retaliation for having exercised his first amendment rights. To decide this issue, it is necessary to review not only plaintiff's political activity but also the role that politics have played in the operation of the Jersey City Police Department.
B. Police Department Patronage.
As stated in the May 24, 1988 report of Paul DePascale, former Director of the Jersey City Police Department:
Report of the Director of the Jersey City Police Department, at 12 (May 24, 1988) (hereinafter "DePascale Report"). See also id. at 9 (stating that one of the author's goals was to reorganize the department
"to eliminate the political interference that has had a strangle hold on the Department.").
Longtime department members as well as members of the community have observed the manner in which city politics have influenced the department's operations. For instance, Lt. Healy, a policeman in Jersey City for over thirty years, observed that typically, after an election, an unspoken practice was implemented under which individuals were promoted and demoted throughout the detective - uniform ranks as either a reward or punishment for that individual's political support. Record at 1013-14 (Healy). Lt. Healy stated that he observed this pattern repeatedly throughout his tenure in the department and believed certain promotions made following the election of former Mayor McCann, for example, constituted reward for political support. Id. at 1013-14, 1016. Although Lt. Healy did testify that while all promotions to detective did "not necessarily" constitute the repayment of a political favor, because some promotions were based on merit, he stated that at different points in an officer's career political support for the "proper" candidate became important to career advancement. Id. at 1011-12, 1017-18.
Walter Adams, who, during the relevant period served as Director of Police, and for the purposes of this opinion shall refer as such, also described the promotion/demotion process that existed in the department prior to 1985 as "somewhat political." He recounted that certain individuals were promoted, demoted, or received assignments based upon who they supported for Mayor. Record at 626, 658, 661, 699 (Adams).
Similarly, Jaime Vazquez, a Jersey City councilman stated that:
Throughout the history of Jersey City, the police department has been a political arm.
Mayor Anthony Cucci also acknowledged the existence of politics in the police department. Record at 945 (Cucci). During the course of his testimony, the following colloquy ensued:
Q. . . . Are you aware or have you been aware of political interference with the Jersey City Police Department prior to your becoming Mayor in 1985?
A. Yes. It was a long-standing practice.
Q. It was business as usual?
A. Prior to '85, my election?
Q. Prior to 1985, your election.
Id. at 942. The Mayor's recognition of the role that politics had played in the police department is further reflected in his joint decision with then-Director of Police Adams to implement:
. . . a reorganization plan that would honor on civil service lists, . . ., but made promotions based on need rather than political desire or need, and the only time promotions are made, when there's valid openings.
Record at 937 (Cucci). Additionally, Mayor Cucci recognized that one of the main goals of the DePasquale Report was to eliminate the political interference that had existed for "a long number of years" in the JCPD. Id. at 943-44.
Although defendants assert that promotions/demotions that occurred following the 1985 mayoral election were not the result of the political patronage system that had previously existed in Jersey City, the record does not support such a contention. For example, by his own admission, Director Adams, who contributed to the DePascale Report, stated that the 1988 report incorporated the political characteristics of the department as they existed through May, 1988, and that the proposals therein were intended to reduce the political pressure that existed in the department as of that date. Record at 663-64 (Adams). The testimony of Councilmen Vazquez and Cunningham confirmed that the observations of the DePasquale Report -- that politics influenced departmental personnel decisions -- were valid prior to May 1988, not just prior to 1985.
Members of both the city council and the JCPD believed that personnel assignments were politically based, even after the 1985 election. See, e.g., Id. at 666. In this regard, Councilman Vazquez was asked about the role of politics in the assignments made to members of the JCPD following the 1985 election:
Q. During or after the 1985 mayoral campaign, did you ever hear anyone make statements about the assigning of Jersey City police officers in the Detective Division?
A. Not to me, no, I did not. The transfers came just like they do every four years when there's a new mayor.
Record at 1053 (Vazquez). (emphasis added). See also Record at 1120-22, 1143 (Cummingham) (stating that certain promotions/demotions in 1985 were the result of political patronage and while he "believe[d] there was a lot less politics . . . [he's] not saying there was no politics "in the department after the 1985 election).
Thus, the record supports a finding that politics indeed played a role in departmental personnel decisions. The record also supports a finding that the JCPD existed, in part, as a political arm through which rewards for political support were granted and retribution for political opposition were meted out. See Record at 191, 193-95 (Coyle); Record at 337, 341-47 (Reddington); Record at 657-58, 661-66 (Adams); Record at 867-68, 878 (Perez, V.); Record at 915-16, 942 (Cucci); Record at 1012-13 (Healy); Record at 1021, 1032-33 (Vazquez); Record at 1117-20 (Cunningham).
C. Plaintiff's Political Activity.
The record reveals that the 1985 mayoral race between then-incumbent Gerald McCann and Anthony Cucci was hotly contested and that the supporters of these candidates campaigned aggressively and vigorously. During the campaign, plaintiff openly and actively supported the reelection bid of then-Mayor Gerald McCann. Specifically, plaintiff attended numerous rallies and meetings. As president of the Hispanic Law Enforcement Society of Hudson County, plaintiff's name and/or photograph appeared (1) in campaign literature and political advertisements that were published either by the McCann reelection committee and (2) in paid political advertisements in the Jersey Journal and other tabloids circulated throughout Hudson County. See e.g. plaintiff's Ex. 32. As explained below, plaintiff's support of the McCann candidacy was well known, and because of his actions he became a target for retribution.
During the 1985 Mayoral campaign, Cucci supporters gathered at the Anthony R. Cucci Association, located on Brunswick Street in Jersey City, and at other locations in the city and discussed, inter alia, the tactics and identities of individuals who supported the opposition. Record at 284-87 (Benitez); Record at 528 (Velazquez). Because of a concern about alleged police harassment of Cucci supporters by McCann supporters, Cucci campaign workers were instructed to report any improper police conduct to John Dougherty, a Cucci campaign worker. Record at 294-297, 305 (Benitez). Record at 1081-82, 1085 (Vazquez). The following colloquy ensued between Councilman Vazquez and counsel on this point:
Q. So it would be fair to say that your campaign and that of Anthony Cucci in 1985 was intent on keeping tabs on any allegations of police harassment?
A. Taking into consideration that the police department was being used politically against us, we -- sure we -- any campaign would keep a record of that.
Q. And the campaign was keeping tabs of these allegations [of harassment]?
Q. How did they keep tabs of these names?
A. Well, an example, I guess may have been [certain vehicles were stopped and drivers were arrested], the police officers' names had to go on the reports. So, I mean, that's how you get a person's name.
Q. Some sort of list was prepared?
A. I wouldn't reach that assumption, no I think that each case was handled individually.
Id. at 1082-83. While Councilman Vazquez denied any knowledge of the preparation of a formal list of police officers who reportedly engaged in such conduct, id. at 1083-84, he acknowledged that the campaign workers reported incidents of harrassment and headquarters indeed kept tabs on when "police officers acting on behalf of the McCann campaign used their authority as police officers. . . ." to advance their political views. Id. at 1084-86. Hence, through such reports of harassment, certain police officers were identified and apparently "black listed." Record at 288 (Benitez), 319-21. See also id. at 288-89, 316 (stating that Benitez believed that Cucci campaigners had maintained a list of police officers against whom reprisals for alleged harassment would be taken.)
The testimony on this point is as follows:
Q. Do you recall what he said to you about this list?
A. He said that these people would be taken care of, you know, if and when they won.
Id. at 321. With regard to the type of retaliation Cucci workers expected to take, the testimony of Mr. Benitez reads:
Q. Did you ever hear Jaime Vazquez say where Abad Perez would be reassigned after Councilman Vazquez was elected?
Q. When did you hear him say something?
A. In the Cucci Civil Association when specifically, I don't recall. But he would be walking the beat by the river.
Id. at 322. See also id. at 289, 298-99.
Capt. Victor Perez, plaintiff's brother, who is also a member of the JCPD, testified to a conversation between himself and state trooper Juan Perez, a staunch Cucci supporter, regarding an intent on the part of the Cucci camp to retaliate against those who supported the McCann candidacy by "trying to get certain people that supported Cucci to get certain spots." Record at 880-82 (Perez, V.). Capt. Perez also stated that:
As a matter of fact, [Trooper Perez is] the one that mentioned the list because he said, "we're going to get those guys that are going against us. We're going to make them walk the beat," or something like that.
In sum, the above evidence clearly reflects that the Cucci forces kept tabs on the conduct of certain police officers who, as a result of their conduct would be subject to retaliation if Cucci were elected, in the form of a demotion from detective to uniformed patrolman, assigned to walk a lonely beat at a late hour. Record at 288, 290-91, 293, 296, 299, 305 (Benitez) (attributing such admissions to defendants Vazquez and Lopez).
The record further reflects that Cucci workers identified plaintiff as an officer who had engaged in harassment, described him "as a person who could not be trusted" and workers were told "to watch out for him." Id. at 296-97; Record at 1163 (Dougherty). Councilman Vazquez testified that he believed plaintiff had used his badge to intimidate voters and, hence, used his police power in political situations. Record at 1022, 1031, 1040 (Vazquez).
Moreover, the record reveals that a number of Cucci's closest supporters and/or aides were aware of plaintiff's aggressive support of the McCann candidacy, and openly discussed plaintiff's opposition to the Cucci ticket. See id.; Record at 286-87, 296, 305, 310 (Benitez); Record at 882 (Perez, V.); Record at 528-29 (Velazquez); Record at 1140-41 (Cunningham); Record at 1208, 1219-20 (Lopez). In this regard, Mr. Benitez recalled that defendant Vazquez had:
. . . been very annoyed with the way Mr. Abad Perez was going around . . . . for Jerry McCann.
Record at 296-298 (Benitz). Similarly, Councilman Cunningham stated that:
Jaime Vazquez would often, in frustration, say to me, 'Glenn, what can we do about this fellow?' In reference to Abad Perez. And there wasn't at that particular time anything we could do because of the fact that the department was being run by the campaign manager. . . .
Record at 1141 (Cunningham).
Apparently Vazquez harbored animosity toward plaintiff not only because of his aggressive support of Mayor McCann, but also because in lending such support, Vazquez believed Abad Perez betrayed the Hispanic community of Jersey City. Record at 1024, 1071-74 (Vazquez); Record at 288-89 (Benitez). During his testimony Vazquez attempted to soften his position, stating that he "was really referring to Hispanics who had betrayed the community by supporting the candidacy of Mayor McCann, not only [Abad] Perez."
Despite this caveat, the record reflects that shortly prior to the June 1985 runoff election between McCann and Cucci, a large group of supporters of both candidates converged in the downtown area of Jersey City. The confrontation between the groups was somewhat heated, motivating then-police officer Joseph Coyle to request police reinforcements. Plaintiff was one of the first members of the force to respond to the call. After plaintiff arrived at this impromptu political rally, then Councilman-elect Jaime Vazquez, wielding a bull horn, announced to the crowd that certain "traitor hispanic detectives", of whom Vazquez considered plaintiff to be one, would end up not being where they [were at the time of the rally but rather would have to trade in their gold badges for a uniform and would have to walk a beat]." Record at 1015, 1074 (Vazquez). See also Record at 72, 235 (Perez, A.); Plaintiff's Ex. 20 (plaintiff's contemporaneous notes regarding the rally and the remarks that plaintiff attributes to Councilman Vazquez).
Record at 532 (Velazquez) (recalling an argument between plaintiff and Councilman Vazquez at the June 8, 1985 rally). Mr. Velazquez stated in his affidavit:
I remember an incident that occurred on Saturday, June 8, 1985 on Grove Street near Fourth Street in the Downtown section of Jersey City. I had been doing propaganda work on behalf of the Cucci ticket in the area and recall a crowd of people had congregated in the vicinity. Then Councilman-Elect Jaime Vazquez was there and I also saw Abad Perez, who at the time was a Jersey City Detective. I was doing my campaign work, but I distinctly recall that Mr. Vazquez made certain declarations over a bullhorn into the crowd to the effect that those detectives who were holding temporary detective badges would lose those gold badges once we got into office, that they would have to turn in their gold badges.
I note that during the trial, Mr. Velazquez stated that the above statement was untrue. Testimony of Hugo Velazquez at 537. Despite the purported recantation, I believe the above statement was true. Mr. Velazquez's recantation is unbelievable. Despite the fact that Velazquez attempted to recant this statement, Mr. Vazquez testified that, following an incident between plaintiff and a Cucci supporter, Velazquez stated that he would "like to see Abad Perez walking a beat somewhere on Ocean Avenue." Record at 1044-45 (Vazquez). Vazquez interpreted this to mean that Velazquez would have liked to see plaintiff transferred from the plainclothes ranks as a detective, to the uniform ranks, as a patrolman, walking a beat.
Id. at 1046. At trial, Mr. Vazquez stated that he "might have agreed with Mr. Velazquez'[s]" desire to penalize plaintiff for his political support. Id.
Following the June 11, 1985 runoff election, Anthony Cucci was elected mayor. He and his administration were sworn in and assumed office on July 1, 1985. On that day, Edwin Healy, then a lieutenant in the department, received an order from his supervisor, then-Deputy Chief Fran Victor, to notify plaintiff that he had been demoted from detective to patrolman. Record at 1005-07 (Healy). As Lt. Healy put it, he informed plaintiff "the axe has fallen, you're back in uniform." Id. See also Record at 79 (Perez, A.) (stating that he interpreted this statement to mean that the new city administration was "cutting off his head" because of his support for former Mayor McCann).
According to the CS-6 personnel form, which Director Adams and Mr. Lopez signed, the demotion was effective July 1, 1985, at which time plaintiff had accumulated two years and eight months seniority as a detective. See Plaintiff's Ex. 33. Interestingly, the word "demotion," which had been typed on the document, had been crossed out in black pen,
and the word "returned" had been handwritten above it.
Notification of plaintiff's demotion apparently came more swiftly than normal, and, as will be explained infra, occurred without review of his personnel file and without explanation. Record at 89-90 (Perez, A.); Record at 1215-16, 1230-32 (Lopez); Record at 681, 697 (Adams). Record at 1010 (Healy).
Director Adams explained that plaintiff, along with twelve other detectives,
were purportedly reassigned and received concommitant salary decreases pursuant to a program providing that detectives with less than four years experience as Jersey City patrolman prior to achieving rank of plainclothes detective were to be returned to a uniformed position. Record at 632, 639-40, 766-67 (Adams). Adams stated that by requiring an officer to accumulate four years of service before becoming eligible for a promotion, and the commensurate pay increase, he hoped to eliminate a situation in which less experienced officers held superior positions and received greater pay than those with more years of service on the force. Id. at 632, 638-39, 645, 765. Director Adams further stated that the four year criteria was primarily set to justify the receipt of additional pay rather than to ensure that officers in supervisory positions had more experience than those officers who they were responsible to supervise. Id. at 847-49. Indeed, he testified that "experience is not the criteria for the reassignment. The criteria for the pay is the four years." Id. at 849.
Adams explained that he selected a period of four years based on the four-year salary scale set forth in the union contract
and upon personal experience. He applied the policy retroactively to those officers who lacked the four-year requisite experience. Id. at 683, 830-34. Adams implemented the program on his first day in office, without discussions with the Police Officers Benevolent Association ("POBA"). Adams stated, however, that prior to assuming his duties as Director, he discussed the program with Captains Frank Pajewski and Frank Sadler, Deputy Chief Carter, and Mayor Cucci. Id. at 683-84. Significantly, no written document exists that memoralizes the four-year criterion upon which promotions to the rank of detective were allegedly to have been based after July 1, 1985. Id. at 683-84, 833.
Despite assertions that plaintiff's demotion was based on his failure to meet the four-year criterion, I find that the inconsistency with which the standard had been applied casts grave doubt on the veracity of that explanation for plaintiff's demotion and, conversely, supports a conclusion that the criterion was mere subterfuge for the true reason for the personnel action. The record clearly reveals that Adams made "quite a few exceptions"
to the four-year criterion during the period following its implementation. Id. at 814. For instance, several officers, such as Officers Wolfe, Sabo, Camacho, and Sanchez, were initially demoted for failure to meet the four-year criterion, but were thereafter promoted to detective, albeit without the commensurate pay differential, before gaining the necessary experience to meet the four-year criterion. Id. at 641-45, 653-55, 769-73, 794, 811-14, 1262-71. Apparently, Adams believed that these assignments were consistent with his four-year criterion since these individuals did not receive additional salary see id. at 858-59, and hence these individual held "only" the status of unpaid detectives. While he stated that those with less than four years experience were not entitled to a promotion as a "paid detective",
he admitted that the work that each type of detective performed and the authority each had was identical. When asked why he did not make a similar exception for plaintiff, Adams stated that he did not do so "because [he] knew [plaintiff] was going to another town to try another department" in California. Id. at 814. See Discussion infra.
In light of the inconsistency with which the criterion had been applied, I am persuaded that the four-year criterion was selected because defendant wanted to demote individuals who had been appointed during the McCann era, thereby prohibiting these individuals from obtaining the "perk" of tenure in the position of detective by amassing five years experience, see id. at 659, I find that the four-year criterion provides only a cover story, but did not reflect the true basis upon which defendants decided to demote plaintiff. The record clearly supports plaintiff's contention that he, and other McCann supporters were demoted because of their political affiliation with a losing candidate, Record at 116-20 (Perez, A.); Record at 1236-40 (Lopez); Record at 867 (Perez, J.), and that consistent with the "standard operating procedure" of city politics, the detective division became staffed with those who had supported the winning mayoral candidate. See Testimony of Benjamin Lopez at 1233-34. See also Record at 886 (Perez, V.) (stating that "Because I knew Abad was on the wrong side, he was going to get dumped.").
According to documents that pertain to the terms and conditions of employment, plaintiff was entitled to forty-eight hours notice of his change of assignment prior to the start of same "whenever possible to do so."
See Article 24 of the collective bargaining agreement between the City of Jersey City and the Jersey City Police Officers Benevolent Association. Further, his reduction in status must have been for "just cause." See Rule 723 of the Rules and Regulations Manual (effective in 1985), which provides:
Any permanently employed officer or employee who receives a fixed annual salary from the municipality shall not be . . . reduced from office or employment therein except for just cause and then only after written charges and complaint shall have been preferred [sic].
See also Record at 711-12, 723 (Adams) (explaining that the Rules apply to plaintiff, and acknowledging that plaintiff received a fixed salary from the municipality). In addition, pursuant to departmental rules,
plaintiff was entitled to certain procedural protections, such as presentation of a written complaint, or notice of the grounds for the personnel action. See e.g. Rule 725. The rules further provide that absent a hearing on the complaint, the employee must be reinstated to the position from which he had been removed. See Rule 728. The fact no one else received a hearing following removal, does not excuse defendant's apparent noncompliance in plaintiff's case. Record at 715, 1261 (Adams). Defendants' failure to comply with the provisions of these rules, and in particular their failure to articulate a just cause for plaintiff's demotion, id. at 681-82, undermines the truthfulness of the rationale offered to explain plaintiff's demotion. The absence of the true explanation is of no moment, however, since the reality was that plaintiff was a victim of the spoils system -- his demotion was based on his failure to support the victor, to whom the so-called "spoils" belonged.
As a result of his demotion, and instructions to turn in his shield, plaintiff submitted the following memorandum:
FROM: Detective Abad Perez File #
TO: Chief of Police John Fritz Date July 3, 1985
SUBJECT: Demotion - To Police Officer
This is to advise you that I am surrendering, (as ordered by Lt. Healey) my Detective Shield # 78, under official protest.
Detective Abad Perez # 78
cc: Director Walter Adams Public Safety
See Plaintiff's Ex. 34. See also Record at 81 (Perez, A.). Adams admitted knowledge of plaintiff's protest in July, 1985. See Record at 815 (Adams). Prior thereto, by memorandum dated July 2, 1985, plaintiff filed a grievance regarding his demotion with Ron Buonocore, POBA President, informing Mr. Buonocore that:
On July 3rd, 1985 I responded to Chief Fritz's Office (with my attorney) and turned in the Detective Shield, along with an official protest. The demotion to Police Officer was improper and I request that the Union do all they can on my behalf. If the Union has an "Official" stand on the issue of demotion I would like to have it in writing.