On appeal from Superior Court, Law Division, Warren County.
Before Judges Shebell, Long and Landau.
The opinion of the court was delivered by
This is an appeal from an order granting summary judgment to defendant Warren Hills Board of Education (Board) on the complaint of plaintiff Louis Thomas Scirrotto. The ruling had the effect of dismissing Scirrotto's demand under N.J.S.A. 18A:16-6.1 for reimbursement of legal fees incurred in successfully defending against criminal charges of bribery, threats and other improper influence in official matters, and compounding. We affirm.
These are the facts. Scirrotto had been employed as a history teacher at the Warren Hills Regional High School from 1980 until 1984, when the Board announced it would not renew his employment contract, thus denying him tenure. Scirrotto informed school officials that he would contest the denial of tenure and made a written request for the specific reasons for such denial. Upon receipt of an explanation with which he differed, Scirrotto unsuccessfully appealed to the Board at a public session hearing for reconsideration of his employment status. Thereafter, he scheduled a meeting with the Commissioner of Education for June 11, 1984.
Prior to that meeting, Scirrotto telephoned John Mulhern, the superintendent of the Warren Hills School District, to discuss the Board's decision not to renew his teaching contract. During that conversation, Scirrotto stated, "that he knew of a problem in the school district and that the problem was more serious than what he called the 'Yrigoyen matter'."*fn1 Mulhern responded that if Scirrotto knew of any criminal activity involving teachers or children it should be reported to the prosecutor's office. Scirrotto, however, indicated that he did not want to reveal the information but might well leak it out. He suggested that they should discuss the matter further. Mulhern informed an assistant prosecutor of Scirrotto's possible knowledge of events more serious than the Yrigoyen matter. The prosecutor's office then arranged to intercept conversations between Scirrotto and Mulhern or Fluck, the school principal, by means of an electronic listening device.
On June 7, 1984, Scirrotto telephoned Fluck to inform him that he was displeased with a newspaper account of his dismissal, adding, "remember I have the Tostos note."*fn2 At the time Fluck did not know what the Tostos note was and agreed to meet with Scirrotto the next day. According to Scirrotto's certification, on the morning of June 8, 1984, Fluck asked Scirrotto to meet with him after school to discuss a newspaper article dealing with a student-parent demonstration at the public hearing concerning his denial of tenure. Scirrotto did not know that the meeting was being recorded.*fn3
Scirrotto stated at the June 8th meeting that he had information as explosive as the "Yrigoyen affair" and indicated that he would go public with the information unless he was rehired. He also said, "I'll use whatever I need to use, Bob [Fluck], to get reinstated in this district for tenure." Fluck wanted to know whether there was a problem similar to the Yrigoyen affair so that he could report it to the prosecutor's office for investigation. Scirrotto, however, refused to reveal the information until he was assured of tenure.
Fluck gave the tape to the prosecutor's office. Based on its content, the Warren County Grand Jury returned an indictment charging defendant with bribery in official matters, N.J.S.A. 2C:27-2b and 2d, with threats and improper influence in official matters, N.J.S.A. 2C:27-3a(2), and with the crime of compounding, N.J.S.A. 2C:29-4. Following a jury trial, Scirrotto was found guilty of bribery. The other charges were dismissed during trial on defendant's motion for judgment of acquittal. We later reversed Scirrotto's bribery conviction, holding that there was insufficient evidence from which a reasonable jury could find that a "benefit" had been offered by Scirrotto to Fluck or Mulhern, or to the school system by which they were employed.
On June 17, 1989, Scirrotto filed his Law Division complaint for reimbursement of attorney's fees. The Board denied N.J.S.A. 18A:16-6.1 liability, reasoning that the incident complained of did not arise out of or in the course of Scirrotto's teaching duties.
On cross motion for summary judgment, the motion Judge granted the Board's summary judgment motion and dismissed Scirrotto's complaint. The Judge approached the issue this way:
School officials, and in particular the principal, would have been remiss and in violation of the law if they didn't submit this to the proper authorities for investigation. The fact that the prosecutor's office saw fit to indict Mr. Scirrotto as opposed to pursuing and [sic] investigation to find out who actually has acted improperly with students that would be tantamount to the Yrigoyn [sic] affair is not the concern of this Court, but rather the issue is whether Mr. Scirrotto, in dangling the carrot, if you will, and seeking to entice the board to reverse its position and grant tenure as the price that it would have to pay to obtain this information, was acting in his capacity of a teacher, is the issue.
The Judge then concluded that nothing in the record supported the proposition that, when Scirrotto made the statements which ultimately led to his indictment, he "was acting in the capacity of a teacher in the employ of the school system, and that anything that was said during the course of that meeting would ...