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Walsh v. State

April 23, 1996


On appeal from Superior Court, Law Division, Hudson County.

Approved for Publication April 23, 1996.

Before Judges Petrella, Skillman and Eichen. The opinion of the court was delivered by Eichen, J.A.D. Skillman, J.A.D., Dissenting.

The opinion of the court was delivered by: Eichen

The opinion of the court was delivered by


Plaintiff Stephen Walsh is an Assistant Deputy Public Defender (ADPD). Defendants are the State of New Jersey, the Department of the Public Advocate, the Office of the Public Defender, and the Public Defender (the commissioner). In December 1993, Walsh sued defendants alleging breach of an agreement to promote him. After a bench trial on February 15, 1995, the trial Judge determined there was an enforceable implied-in-fact contract to promote Walsh after one year from an ADPD II to an ADPD I. Accordingly, the trial Judge determined that Walsh was entitled to recover the stipulated sum of $29,521.66 in damages, representing the salary differential between his employment status as an ADPD II and an ADPD I and ordered that "plaintiff be placed in the classification and salary step of Assistant Deputy Public Defender I as of June 1994," receiving all the increments and raises awarded for that position since that date. A consent order of judgment embodying the court's directives was entered on February 22, 1995.

Defendants argue on appeal that the trial court erred because the record does not support the existence of a firm and definite offer to promote Walsh which was capable of acceptance. They assert that the record lacks sufficient proof to support the Conclusion of a "mutual agreement" or any intent on the part of defendants to make such an offer. Finally, defendants maintain the record cannot support the Judge's Conclusion that defendants' representatives had actual or delegated authority to promise Walsh a promotion. *fn1

We affirm substantially for the reasons expressed by the trial Judge in his oral bench opinion on February 15, 1995. However, we consider it appropriate to recite the genesis of this dispute and to comment further on defendants' claims of error.

Walsh was employed as an ADPD in the Bergen region office of the Office of the Public Defender from 1980 to 1986. Hired as an ADPD III, he was eventually promoted to an ADPD I, in which capacity he alleges he served for two and one-half years before he went into private practice in 1986. In 1988, learning that Walsh was not content in private practice, Ellen Koblitz, *fn2 the Deputy Public Defender in charge of the Hudson region office of the Office of the Public Defender, invited Walsh to resume practice as a public defender in the Hudson region office. Koblitz and Walsh had worked together in the Bergen region office for several years and, therefore, Koblitz was familiar with his professional skills and wanted him to join the Hudson region office.

Based upon information provided to her by Thomas S. Smith, Jr., the First Assistant Public Defender, Koblitz offered Walsh the position of an ADPD I with a salary of $42,266.82. Interested in getting the highest possible salary for Walsh, but unfamiliar with the various position classifications and commensurate salaries, Koblitz discussed the matter further with Smith. Smith then spoke with John DeVaney, the chief personnel officer for the Office of the Public Advocate. *fn3 Following their Discussion, DeVaney constructed a plan whereby Walsh would return to the Public Defender's Office at a lower level than that when he had left in 1986. Specifically, he would begin as an ADPD II-step four, receiving a salary of $41,986.96, but be promoted to a Level ADPD I, after one year, which would enable him to receive a salary greater than if he had started as an ADPD I.

Koblitz described the conversation she had with DeVaney as follows:

[DeVaney] called me because he had an idea that he thought would benefit Steve in the long run. And he suggested to me that if Steve took a slightly lesser salary and instead of being an ADPD I ..., he was -- I believe it was the highest slot in the ADPD II title[,] that he could be promoted in one year. And due to the workings of the salary and title system, Mr. DeVaney explained to me that he would end up making more money, that even though during that one year, he would have a slightly lesser salary, that because he was being promoted from the highest level in one category, he would jump up higher and would make up the differential and the salary for that first year quickly. And then be making more money. So it was a plan that would result in Steve making more money in the long run. That's what Mr. DeVaney explained to me.

Koblitz testified that although she did not understand DeVaney's suggestion to be "a guarantee," she understood it to imply that Walsh would be promoted, not merely that he would be eligible for a promotion:

I mean, here is somebody who is being offered the higher title, could take the higher title now. To say maybe he won't be promoted to that same title in a year didn't really make sense. The underlying assumption was he would be promoted to that title in one year. (emphasis added)

After speaking with DeVaney, Koblitz spoke with Walsh. She described part of her conversation with Walsh as follows:

I told him that ... I would recommend him for a promotion, assuming that he worked out as [] I fully expected him to work. And there was some qualification that his work would have to be of a good quality. And I'm sure I said it tactfully, because I fully expect that it would be of a good quality. But I didn't feel it was appropriate to hire somebody and guarantee ...

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