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Morgan v. Union County Board of Chosen Freeholders

Decided: November 16, 1993.

ROBERT MORGAN, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
UNION COUNTY BOARD OF CHOSEN FREEHOLDERS; MICHAEL J. LAPOLLA, INDIVIDUALLY; GERALD B. GREEN, INDIVIDUALLY; BRIAN FAHEY, INDIVIDUALLY; JOSEPH SULIGA, INDIVIDUALLY; ADOLPH D. SARRO, DIRECTOR OF DEPT. OF GOVERNMENTAL PROPERTY AND INDIVIDUALLY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS



On appeal from Superior Court of New Jersey, Union County, Law Division.

Petrella, Baime and Villanueva. The opinion of the court was delivered by Baime, J.A.D.

Baime

[268 NJSuper Page 347] Plaintiff Robert Morgan instituted this action in the Law Division, contending that he was wrongfully terminated from his position as Director of the Union County Division of Buildings and Grounds by reason of his political affiliation. Although plaintiff resigned from his position, he asserted that he had been constructively discharged. Named as defendants were the Union County Board of Chosen Freeholders, Michael LaPolla, Gerald Green, Brian Fahey, Joseph Suliga and Adolph Sarro. The gist of the

nine count complaint was that the defendants conspired to deprive plaintiff of his civil rights by terminating his employment because of his membership in the Republican party. Plaintiff sought compensatory and punitive damages as well as injunctive and declaratory relief.

Prior to trial, the Law Division dismissed plaintiff's claims for infliction of emotional distress and various due process violations. The court also dismissed plaintiff's claim for violations of the Optional County Charter Law (N.J.S.A. 40:41A-86 to -87), and his demand for injunctive and declaratory relief. The court denied defendants' motions for summary judgment as to plaintiff's remaining causes of action. Following the completion of plaintiff's case, the court granted defendants' motions for an involuntary dismissal.

Plaintiff appeals and defendants cross-appeal. In the principal appeal, plaintiff argues that the Law Division erroneously dismissed his claims for emotional distress, due process and Optional County Charter Law violations prior to trial. He further contends that the trial court erred by granting defendants' motions for an involuntary dismissal respecting his federal civil rights and wrongful discharge actions. Plaintiff also attacks several of the trial court's evidentiary decisions. In the cross-appeal, defendants argue that plaintiff failed to comply with the notice provisions of the Tort Claims Act (N.J.S.A. 59:8-1 to -11), that they had the right to discharge plaintiff because political affiliation was an appropriate job requirement, and that they were immune from suit. They assert that the Law Division thus erred by denying their motions for summary judgment.

Because of the unwieldy nature of the principal and cross-appeal, we consider these arguments in chronological order. First, we are in complete accord with the Law Division's pretrial rulings. Specifically, plaintiff's claims for intentional infliction of emotional distress, due process violations and violations of the Optional County Charter Law were properly dismissed before trial. In a similar vein, defendants' motions for summary judgment

on the remaining causes of action were correctly denied. Second, we are convinced that the trial court erred by granting the individual defendants' motions for an involuntary dismissal at the close of plaintiff's case. Giving plaintiff the benefit of all favorable testimony and legitimate inferences, the jury could reasonably find that the individual defendants conspired to deprive Morgan of his federal constitutional rights. We conclude that the trial court committed error by aborting the trial and dismissing plaintiff's claim for compensatory and punitive damages. As to the Union County Board of Chosen Freeholders, the record is barren of any officially sanctioned act depriving plaintiff of his civil rights. The trial court properly dismissed plaintiff's claim against the Board.

I.

After a 37 year career with Public Service Electric and Gas Company, plaintiff retired in 1987 at the age of 60. Plaintiff had long been a Roselle Park councilman, where he served as the chairman of the Township's committees on buildings and grounds, public works and finance. Through his association with the Republican party, plaintiff learned of an opening in the County's Division of Buildings and Grounds. After an interview with the County Manager,*fn1 Donald Anderson, plaintiff, the only applicant, was hired as the Director of the Division. Under the administrative hierarchy, plaintiff reported to William Anderson, the Director of Public Works. Sarro served as Supervisor of Trades under plaintiff's direction. Richmond LaPolla, Michael's brother, was plaintiff's assistant. The record indicates that plaintiff received excellent evaluations and was often praised by members of the Board of Chosen Freeholders.

Plaintiff presented evidence indicating that his problems began when the Democrats won a bitterly contested election in November

1987 and assumed control of the Board. Suliga was among the newly elected freeholders. Fahey and LaPolla, also Democrats, had been in office since 1984. Donald Anderson testified that he was initially confronted by Fahey in LaPolla's office shortly after the election and was criticized for not "fir[ing] anybody." Fahey named three employees he wanted terminated apparently for political reasons. After Fahey left, Anderson expressed his concern to LaPolla who explained that the freeholders intended to restructure the Division of Buildings and Grounds and elevate it to departmental status. LaPolla noted that plaintiff would not be appointed director of the department but would be retained at a lower level. Despite LaPolla's assurances, Fahey allegedly ordered Anderson to terminate plaintiff's employment. Anderson refused to execute this order notwithstanding Fahey's "insisten[ce]."

Anderson advised plaintiff of the restructuring plan at a meeting on or about February 15, 1988. At trial, their respective recollections of this conversation differed. According to plaintiff, Anderson asked him to resign because he "was too important to the Republican Party to hold [an upper-level] position." When plaintiff suggested that he might refuse, Anderson allegedly replied, "I have a gun to my head" and "I'll have to fire you." Anderson denied that he threatened to terminate plaintiff or that he mentioned his political affiliation.

Following this meeting, plaintiff described his version of the conversation to a newspaper reporter. Fahey allegedly told Anderson that he would attempt to suppress the newspaper article, but if he were unsuccessful, Anderson would be required to fire plaintiff immediately. Fahey allegedly concluded the Discussion by noting that he would have "charges" against plaintiff "put together" and would "chop him to bits." Shortly thereafter, a newspaper article appeared, reporting that Anderson had told plaintiff he "had a gun held to [his] head" and that the freeholders had ordered Anderson to terminate plaintiff's employment. Anderson resigned in April 1988.

Later in 1988, the new Department of Governmental Properties was created and Sarro, plaintiff's former subordinate, was appointed Director. According to plaintiff, the position was never advertised or posted, and Sarro's deposition testimony indicated that he was appointed by Ann Baron, the acting County Manager. Sarro immediately removed plaintiff from his private office and assigned his secretary to Richmond LaPolla. Plaintiff testified that he was shunned by all members of the department and was excluded from all his former job functions. Sarro repeatedly disparaged plaintiff, telling him that he was "the only damn [R]epublican here[,]" and asking him why he "d[idn't] retire" and "get out." Sarro admitted during his deposition that he excluded plaintiff from attending budget meetings, handling disciplinary proceedings and interviewing, and evaluating employees. Sarro explained that he assumed plaintiff wished to retire.

Joseph Martin was appointed County Manager in 1988. After the election that year, only one Republican remained on the Board. Green, a Democrat, was elected a freeholder. In December 1988, Fahey and Green met with Martin at Fahey's office. Martin "was handed a pad and . . . given a list of names." Fahey and Green ordered Martin to terminate plaintiff's employment. Plaintiff's "political affiliation was mentioned" as a reason for his termination. Martin recalled that "the freeholders . . . suggest[ed] rather strongly" that plaintiff be "remove[d] . . . as Director of Buildings and Grounds." Both freeholders urged Martin "to demonstrate that [he] was a team player." Martin testified that he subsequently looked at the list that had been given him and to the extent that he recalled party affiliation he indicated that all employees who were to be fired were Republicans and all replacements were Democrats.*fn2 Martin could think of no reason for terminating plaintiff and, thus, took no action.

In March 1989, the Budget Director and Finance Director presented Martin with a list of twenty positions to be eliminated.

Plaintiff's position was on the list. The list apparently referred to positions held by both Democrats and Republicans. According to Martin, it reflected an "intramural war among the Democrats." However, Paul O'Keefe, the lone Republican remaining on the Board, criticized Fahey for recommending "the abolition of jobs without the tacit consent of the majority of the Board[,]" and for subjecting county employees "to retaliation and retribution because the majority . . . [felt it] ha[d] a score to settle." According to O'Keefe, although the list referred to members of both parties, "it was predominantly . . . [R]epublican."

Plaintiff complained to Martin concerning the diminution of his responsibilities. Martin's general response to plaintiff was to "go back and do [his] job." However, Suliga criticized Martin on the basis that he was "sending the wrong message" and "creating strife by telling [plaintiff] to [return to] his job." Martin was repeatedly criticized for not being "on the same team" with the freeholders. Plaintiff recalled a subsequent conversation with Suliga where Suliga said, "[w]hy the hell don't you get the hell out of here? . . . We don't want you . . . The [D]emocrats don't want you in here. Get out." Suliga's statements were echoed by Sarro who told Martin that they "were working in a political environment," and Martin was "naive" if he believed the freeholders were not interested in personnel actions.

Martin testified that freeholders Fahey, Suliga and Green often commented about plaintiff's "political affiliation," pressuring him "to solve the Bob Morgan problem." Suliga allegedly "pushed" Martin to take action, and Fahey stated that plaintiff "should go as head of Buildings and Grounds because he was a Republican." However, Martin refused to terminate plaintiff's employment because he "found [him] to be capable" in the performance of his job. Martin testified that he resigned in March 1990, noting that "the freeholders were happy to see [him] go."

Plaintiff was on sick leave from February 5, 1990, to April 2, 1990, during which time he underwent heart surgery. When he returned from his hospitalization, Sarro immediately assigned him

to inspect "all sixteen floors [of the courthouse]," including every room, bathroom and stairwell. Plaintiff was concerned because the assignment required him to climb the stairs to all sixteen flights in order to inspect the stairwells. Although plaintiff had often directed employees to inspect various parts of the courthouse, he regarded Sarro's instructions as compelling him to personally perform the assignment. Plaintiff objected to Sarro's order, noting that he had returned from his hospitalization only that day. Sarro then contacted the County's personnel director and ordered plaintiff to undergo a physical examination. Plaintiff immediately submitted his resignation. As plaintiff explained at trial, he could no longer contend with the defendants' "harassment."

All defendants moved for an involuntary dismissal at the close of plaintiff's case. In granting the Board's motion, the trial court found no officially sanctioned policy depriving plaintiff of his constitutional rights. The court emphasized that the Board acted within its powers in restructuring the bureaucracy and in creating the Department of Governmental Properties with Sarro as its Director. The evidence thus did not disclose any constitutional violation committed by the Board. As to the individual defendants, the trial court found "no causal" connection between their conduct and plaintiff's resignation. In reaching this Conclusion, the court refused to consider any act that occurred before or after each freeholder's term of office. For example, Green's presentation of the list of employees to be discharged took place after his election but before he was sworn into office. The court concluded that, because Green was not a freeholder at that time, he could not be regarded as having "act[ed] under color of law with respect to that conversation." In a somewhat similar vein, the trial court declined to hold LaPolla and Fahey responsible for plaintiff's termination, because their ...


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