The opinion of the court was delivered by: CLARKSON S. FISHER
Plaintiff, Robert Harrington, previously held the position of Superintendent of Schools pursuant to a contract of employment with defendant Clinton Township Board of Education ("the Board"). The initial contract was entered into on June 1, 1990, and was due to expire on May 31, 1993. The parties entered into another contract on April 8, 1993, whereby they agreed to an additional term of employment from June 1, 1993 until July 1, 1996.
In the meantime, a school board election was held on April 19, 1993, which resulted in the replacement of three of the members who had voted in favor of extending the plaintiff's employment contract. At a public meeting held on June 28, 1993, the newly composed Board voted to relieve plaintiff of his duties as Superintendent of Schools, although they agreed to honor their financial obligation for the remainder of the previously extended contract term. In fact, the Board continued to pay plaintiff the full amount of his former salary until he accepted a new position as superintendent of schools in a school district in Vermont. The Board continues to compensate Harrington for the difference between his current salary and the salary he was earning while employed by Clinton Township.
On July 15, 1993, plaintiff initiated this lawsuit alleging that his termination was a violation of his federal civil rights and the New Jersey Conscientious Employee Protection Act ("CEPA"). In the first count of the third amended complaint, Harrington asserts a claim under 42 U.S.C. § 1983, alleging that the Board and the six individual members who voted to fire him violated his right to free speech as guaranteed by the First Amendment to the United States Constitution and that they deprived him of property without due process of law, in violation of the Fifth and Fourteenth Amendments. The second count alleges that defendants conspired to deprive Harrington of his privileges under the law. The third count alleges that defendants, knowing of the wrongs conspired to be done and having the power to prevent or aid in preventing the commission of same, neglected or refused to do so. In the fourth count, plaintiff asserts that he was terminated from his employment in retaliation for questioning the legality of certain conduct on the part of several board members and that such action constitutes a violation of CEPA, N.J.S.A. 34:19-1, et seq. Finally, the fifth count contains allegations that defendants acted willfully and maliciously with the intent to injure plaintiff.
By motion for partial summary judgment, the individual board members seek to dismiss that portion of the first count of the third amended complaint which asserts a procedural due process violation, as well as the third and fifth counts of that complaint. The Clinton Township Board of Education has also filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking to dismiss all federal claims asserted in plaintiff's third amended complaint. The Board also seeks to dismiss plaintiff's claim for compensatory damages or reinstatement under CEPA.
The entry of summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Connors v. Fawn Mining Corp., 30 F.3d 483 (3d Cir. 1994). The moving party bears the initial burden of making a prima facie showing that he is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). This may be done by identifying those portions of the record believed to demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving party to come forward with affidavits or other competent proof which sets forth specific facts showing that there is indeed a genuine issue for trial. The party opposing a motion for summary judgment can show that there is a genuine issue for trial by demonstrating that the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On the other hand, summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the ultimate burden of proof at trial. Celotex, 477 U.S. at 322-23; Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir. 1988). In making its determination, the role of the court is not to weigh the evidence and determine the truth of the matter, but simply to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Plaintiff has asserted that the termination of his employment constitutes a deprivation of property without due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. However, plaintiff does not allege any action by the federal government. The Fifth Amendment is a limitation on the federal government and does not apply to state actions. Pitt v. Pine Valley Golf Club, 695 F. Supp. 778, 781 (D.N.J. 1988); Bowman v. Township of Pennsauken, 709 F. Supp. 1329, 1338 n.11 (D.N.J. 1989). Therefore, summary judgment is granted in favor of defendants on that portion of plaintiff's § 1983 claim which is based on a violation of the Fifth Amendment.
With regard to plaintiff's due process claim brought under the Fourteenth Amendment, defendants argue that they are entitled to summary judgment for two reasons. First, they contend that plaintiff did not have a constitutionally protected property interest in his employment with Clinton Township. Second, they argue that if it is determined that plaintiff had a protected property interest, he was afforded all the process that he was due prior to the termination of his employment.
An individual who seeks to invoke the protection of the due-process clause of the Fourteenth Amendment must first establish that he has been deprived of a liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569-70, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). In the context of employment in public education, a property interest can derive from a contract which provides for continued employment and which can be terminated only for good cause. Wooten v. Clifton Forge School Bd., 655 F.2d 552, 554 (4th Cir. 1981); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). In the present case, Harrington had a contract which provided for continued employment, but only until July 1, 1996. By the explicit provisions of state law, Harrington could not be dismissed or reduced in compensation, except upon a showing of just cause. See N.J.S.A. 18A:17-20.2. Consequently, Harrington did have a property interest in the continuation of his employment for the specified contractual period. Whether that property interest includes the right to engage actively in the duties required of a superintendent, however, as opposed to the mere right to receive the compensation guaranteed under his contract, is a separate question. That precise question was addressed in the remarkably analogous case of Royster v. Bd. of Trustees, 774 F.2d 618 (4th Cir. 1985), cert. denied, 475 U.S. 1121, 90 L. Ed. 2d 184, 106 S. Ct. 1638 (1986). In that case, the plaintiff was employed as the superintendent of schools under a series of multi-year contracts, of which the final one was due to expire on June 30, 1983. In January 1983, the school board informed the plaintiff that he was being relieved of his duties as superintendent but with full pay and benefits through the effective termination date of his contract. The court held that although a property interest in the continued expectation of public employment affords the employee the right to be fully compensated, it does not include the right to physically possess a job, in defiance of the stated desire of the employer. 774 F.2d at 621. The court expressed sound reasoning for its conclusion:
Indeed, to hold that Royster had a constitutionally protected property interest in continuing to perform his services would make it impossible for a public employer, dissatisfied with an employee's performance, but without specific contractual cause to discharge him, to relieve the employee from his duties although willing to compensate the employee in full.
Id. The court then concluded that whatever constitutionally protected property interest the plaintiff had as a result of his employment contract was satisfied by payment of the full compensation due him under the contract. Id.
In the present case, Harrington was relieved of his duties as superintendent on June 28, 1993, notwithstanding the existence of a contract which provided him with a legitimate expectation for continued employment until July 1, 1996. Nevertheless, the Clinton Township Board of Education has continued to pay plaintiff the salary due and owing him under the terms of his contract. (Lentine Aff. at P 7.) Persuaded by the court's decision in Royster, this court concludes that although Harrington had a protected property interest in the right to receive the full amount of compensation provided for in his contract, he did not have a protected property interest in the right to execute his duties as superintendent for the duration of his contract.
The court finds further support for that conclusion from the very terms of the employment contract. In Article V of the contract ...