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D'AURIZIO v. PALISADES PARK

April 28, 1997

Albert D'Aurizio, Plaintiff,
v.
Palisades Park, et al., Defendants.



The opinion of the court was delivered by: GREENAWAY

 JOSEPH A. GREENAWAY, JR., District Judge,

 This matter comes before the Court on the motion to dismiss, or alternatively for summary judgment, of Oury & Mizdol, P.C., attorneys for defendants Thomas Tuscano and George Fasciano. Because both parties present extrinsic material, the Court will treat this motion as one for summary judgment pursuant to Fed. R. Civ. P. 56.

 PRELIMINARY STATEMENT

 Plaintiff Albert D'Aurizio ("D'Aurizio"), and his wife Debbie, are members of a large and politically active family in the Borough of Palisades Park (the "Borough"). For years, the D'Aurizios participated in local Republican and school board politics. D'Aurizio's sister-in-law, Carol Killion (one of the defendants in this case), was president of the Palisades Park Board of Education (hereinafter, the "Board"). All of the defendants in this case are individuals D'Aurizio knows through his involvement in local politics; they include William Maresca, the Republican Mayor of the Borough between 1991 and November 1995, and various members of the Board and the Borough Council. In short, D'Aurizio's claims against the defendants stem from his belief that because he ran for a seat on the Council in 1991 as an independent, as opposed to a Republican candidate, the defendants -- all, except for one, who are affiliated with the Republican party -- participated in a conspiracy to fire him from his Board-appointed position as a school custodian. In addition, D'Aurizio claims that subsequent to the elimination of his custodial position in June 1992, defendants continued their conspiracy against him by ensuring that the Board did not place his name on the part-time custodial roster in December 1992, thereby precluding him from exercising his alleged right of first refusal.

 FACTS

 Defendant George Fasciano ("Fasciano") was the Palisades Park Superintendent of Schools from approximately 1990 through November 1992. *fn1" As Superintendent, Fasciano did not vote on any action taken by the Board but he could make recommendations to the Board. Defendant Thomas J. Tuscano ("Tuscano") is, and was at all relevant times, the Republican Municipal Chairman in Palisades Park. Tuscano is not a public official. His position as Republican Municipal Chairman requires him only to conduct the Palisades Park County Committee meetings. Ex. D. *fn2"

 D'Aurizio's Candidacy

 In April 1991, D'Aurizio, a former Republican, announced his candidacy as an independent candidate for a seat on the Council. In late May or early June 1991, the Board hired D'Aurizio as a part-time custodian. In August 1991, the Board decided, by vote, to make D'Aurizio a full-time custodian. In November 1991, D'Aurizio ran for Council against the Republican ticket and lost. D'Aurizio's alleges that his campaign caused a division among the local Republicans. Amended Complaint P 27.

 1992-1993 School Budget

 In approximately December 1991, the budget process for the Borough's 1992-1993 school year began. On February 4, 1992, the Board met to discuss preliminary cuts to the budget; these cuts included the elimination of one custodial position (a $ 30,000 cut) and two maintenance positions (a $ 60,000 cut). Sherwood Dep., at 174-75. *fn3"

 Fasciano testified at his deposition that he objected to the Board's proposed cuts to the budget -- i.e., the elimination of one custodial and two maintenance positions. Ex. A, at 204-05. Ms. Killion confirmed Fasciano's testimony, stating that Mr. Fasciano "did not recommend it [the cuts]." Ex. L, Killion (5/26/95) Dep., at 546. Ms. Killion also testified that Mr. Tuscano did not give her "any inkling of anything" -- i.e., as to whether he supported the proposed cuts to the school budget. Ex. I.

 On March 17, 1992, the Board presented its 1992-1993 school budget -- with the proposed cuts -- at a public hearing. Eichenholtz Dep., at 247. *fn4" On or about April 7, 1992, the Borough voters defeated the school budget. Killion Dep., at 586-87. *fn5" As a result, on April 22 and April 26, 1992, the Board, the Mayor (Maresca) and the Council met to review the budget and to determine if they could make any other cuts. *fn6" These were open meetings mandated by New Jersey State statute and recited in the Council's School Board Budget Resolution, passed on April 27, 1992 ("hereinafter, the "April 27 Budget Resolution"). *fn7"

 Conspiracy Meetings

 D'Aurizio alleges that in addition to the two mandated meetings, members of the "Republican majority" from the Borough secretly met in April *fn8" , and again on June 9, 1992, to conspire to eliminate D'Aurizio's position as a school custodian, i.e., in retaliation for his 1991 independent candidacy for Council. *fn9" Amended Complaint P 32. Specifically, D'Aurizio claims that Michael DeBartolo *fn10" , the campaign manager for D'Aurizio's Republican opponent in the November 1991 election, stated at the secret meeting in April: "We're getting rid of Al [D'Aurizio] because he ran against us." Id. D'Aurizio adds that all the other Republican members of the Board tacitly agreed with DeBartolo's suggestion "by nodding, or other acts showing ratification of the conspiracy proposal." Id.

 However, D'Aurizio testified at his deposition that his basis for believing that the defendants secretly met, both in April and in June, came only from alleged conversations he had with Carol Killion (his sister-in-law), see D'Aurizio Dep., at 127-28, and defendant Peter Marose, a Democratic member of the Board. Id. at 135-36. Indeed, D'Aurizio admitted at his deposition that other than what he could "surmise" from these two conversations, he had no other knowledge of the alleged secret meeting, which he believes occurred some time in April. Id. at 136 & 139-40. In addition, Ms. Killion stated at her deposition that the April meeting was "an open meeting and anyone could have come." Killion Dep., at 105-06. Moreover, when questioned about his conversation with Ms. Killion regarding the alleged secret meeting in April, D'Aurizio responded: "I do not recall exactly how we found out from her [Ms. Killion]." D'Aurizio Dep., at 127-28.

 Ms. Killion also admitted at her deposition that the June meeting was an open Republican meeting, held at the law offices of Rotolo & Rotolo, to discuss the vacant seat on the Board. Killion Dep., at 178-86. In addition, Ms. Killion testified that D'Aurizio's name was not even mentioned during this June meeting other than in a private, side conversation she (Ms. Killion) had with Mr. Albanese, the content of which was: "Paul, Paul [Albanese], come on, this is my brother-in-law", to which Mr. Albanese allegedly responded "well, fire them all." Id. at 101. Tuscano testified that he attended the June 7 meeting ...


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