On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication September 2, 1997.
Before Judges Brochin, Kestin and Eichen. The opinion of the court was delivered by Eichen, J.A.D.
The opinion of the court was delivered by: Eichen
The opinion of the court was delivered by
Plaintiff Peter Casamasino served as the tax assessor for defendant City of Jersey City (Jersey City) since his appointment in 1987 by then Mayor Anthony Cucci. Mayor Cucci appointed Casamasino to complete the term of the former tax assessor who had died in office two months before his term was set to expire on June 30, 1987. By Mayor Cucci's letter to the city council dated April 27, 1987, plaintiff was appointed to fill the term set to expire plus a full four-year term beginning on July 1, 1987. Copies of the letter were sent to the Jersey City clerk and law department. However, the city council did not vote its advice and consent to the appointment as provided by the Faulkner Act, N.J.S.A. 40:69A-43(b).
When the four-year term to which plaintiff had been appointed expired on June 30, 1991, he continued to serve as tax assessor and was paid for performing the duties of that office even though he had not been formally reappointed. During this period, plaintiff was never advised that "there was any defect or impropriety in [his] appointment." On June 30, 1993, the then mayor, defendant Bret Schundler, advised plaintiff by letter that he was not being reappointed. Plaintiff was immediately relieved of his duties and directed to vacate his office.
On July 1, 1993, plaintiff filed a complaint in lieu of prerogative writs in the Law Division and obtained an order to show cause against Jersey City and Schundler, directing them to show cause why Casamasino should not be immediately reinstated to his position as tax assessor in accordance with his tenure rights under N.J.S.A. 54:1-35.31. According to Casamasino, his dismissal was retaliatory, illegal and motivated by the mayor's "personal animosity." The complaint and subsequent amendments thereto also charged defendants with violations of plaintiff's federal civil rights under 42 U.S.C. 1983 ( § 1983), the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and sought relief under theories of "intentional infliction of physical and emotional harm, wrongful discharge from employment, libel and slander, and intentional interference with a business relationship." Plaintiff also demanded judgment directing defendants to "recognize and establish the tax assessor as a separate municipal department," and to pay his counsel fees in accordance with a resolution adopted on April 14, 1993. Finally, plaintiff sought compensatory and punitive damages, together with counsel fees and costs.
In a supporting certification, plaintiff explained that on June 30, 1993, at approximately 11:00 a.m., Schundler's chief of staff delivered a letter from Schundler which stated: "Please be advised that I am exercising my mayoral prerogative not to re-appoint you as assessor. Effective herewith, you are relieved of your duties." "Without any warning or preparation," plaintiff was required to immediately pack his belongings, surrender his keys, and vacate his office, an experience plaintiff described as extremely humiliating.
According to plaintiff's complaint, Schundler's animosity toward him had its genesis in a history of incidents dating back to the late 1980's, before Schundler was mayor, at a time when Schundler was leader of an organization opposed to the 1988 tax revaluations of real property in Jersey City. In particular, plaintiff described an incident on January 25, 1993 at a council meeting when the mayor sought a resolution approving a plan to obtain revaluations and reassessments of real property in Jersey City. At the meeting, plaintiff voiced opposition to the mayor's proposal because he believed the proposed methods were in contravention of the guidelines promulgated by the State Division of Taxation. *fn1 After the council meeting, plaintiff alleged that the mayor threatened that he would "embarrass [Casamasino] every chance I get."
Plaintiff identified another incident in 1993 in which Jersey City's director of finance, Jane Feigenbaum, issued a two-day suspension to plaintiff forcing him to seek reinstatement by judicial decree. On March 30, 1993, a Chancery Division Judge entered an order vacating the two-day suspension. Thereafter, on April 14, 1993, the city council adopted a resolution authorizing the city to reimburse Casamasino $8,079.14 for legal expenses he had incurred in defending against the unlawful suspension. These sums were never recovered apparently because Feigenbaum never encumbered the funds to pay Casamasino and a new city council thereafter voted to rescind the prior resolution. Casamasino alleged that he was never paid because defendant purposefully disregarded his right to reimbursement. Additionally, plaintiff alleged that despite the Chancery Division Judge's directive in 1993 to establish a separate department for the tax assessor from the department of finance, defendant refused to implement the order.
On July 30, 1993, the return date of the order to show cause, Judge D'Italia rendered an oral opinion and, after concluding that there were no disputed issues of material fact, determined that the council's failure to ratify plaintiff's initial appointment was not "a fatal defect" and that his removal was void. He reasoned that because "plaintiff occupied his office in an open and notorious manner," and the council was aware that plaintiff was "functioning in every respect as the tax assessor," the council impliedly ratified the appointment by its silence and failure to repudiate the appointment. Judge D'Italia rejected defendants' contention that plaintiff was a temporary or interim tax assessor since he was never formally reappointed after his term expired on June 30, 1991, explaining that this theory contravened the legislative intent of N.J.S.A. 40:46-6.2 (now N.J.S.A. 40A:9-148), which requires fixed, four-year terms for tax assessors.
On August 13, 1993, Judge D'Italia entered an order declaring plaintiff the tenured tax assessor of Jersey City, and voided and vacated his removal. Subsequently, the Judge directed defendants to establish an independent office of the city tax assessor, and declared invalid the portions of the city municipal code placing the tax assessor's office within the department of finance. The Judge then directed plaintiff to proceed with the remaining causes of action in the complaint. *fn2
On appeal, Jersey City and Schundler essentially contend that the trial court usurped "the discretionary executive and legislative functions of the mayor and city council" by reinstating plaintiff as tax assessor and granting him tenure.
Our careful review of the record in the light of the arguments advanced by the parties convinces us that defendants' arguments are clearly without merit. R. 2:11-3(e)(1)(E); Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995). See Ream v. Kuhlman, 112 N.J. Super. 175, 270 A.2d 712 (App. Div. 1970); see also Cetrulo v. Byrne, 31 N.J. 320, 323, 157 A.2d 297 (1960); Johnson v. Hospital Serv. Plan, 25 N.J. 134, 135 A.2d 483 (1957); Barkus v. Sadloch, 20 N.J. 551, 553, 120 A.2d 465 (1956). Accordingly, we affirm Judge D'Italia's August 13, 1993 order substantially for the reasons articulated in his oral decision of July 30, 1993. A tax assessor, unlike other municipal employees, must be independent and free from municipal interference and political pressure. Judge D'Italia's reinstatement of plaintiff with tenure was in accordance with this important public policy and the applicable legal principles.
Defendants moved for summary judgment on plaintiff's § 1983, LAD, CEPA, defamation, and punitive damage claims, as well as other claims not in issue on this appeal. Plaintiff submitted an opposing certification dated June 27, 1994, protesting the "continuous and overwhelming" harassment to which defendants have subjected him since his reinstatement, and the unfair and discriminatory treatment of him and his staff. Plaintiff complained about defendants' lack of cooperation and denial of resources, including expert appraisers, tax appeal attorneys, and office supplies and equipment. Plaintiff also submitted a transcript of a tape recording containing statements Schundler had made on a cable television call-in program on April 18, 1994 which Casamasino claims were defamatory. These are the statements:
I will talk about the assessor whom I have been very publicly critical of ... we have a lot of questions about ... settlements that have been achieved with large property owners, large developers. Some of these settlements to us seem to have been a give away. . . . in 1989 they indiscriminately ... jacked up ... commercial property owner[s'] taxes, which is almost begging for appeal, but then they all suddenly settle with all these guys next year. That opens the door. I'm not going to make any accusations here, but that opens the door for someone to take pay offs ... one year you say I'm going to double your assessment but I'll give you a settlement, if tomorrow you come in and you give me the money. Now, I'm not going to say that any of this took place. But what I'm saying is, look at the way things are done, and it's just a wide open door inviting ... corruption. I don't think that you should have a settlement ... without some kind of independent assessment when you're talking about a large land.
Judge Gallipoli heard oral argument on July 22, 1994, and rendered an oral opinion, dismissing the portion of the complaints seeking punitive damages against Schundler in his official capacity. *fn3 The Judge also dismissed the LAD claim, as well as the "intentional infliction of emotional distress" and "interference with business" claims which were not opposed in the Law Division. Additionally, the Judge dismissed the CEPA claim, concluding there was no violation of any law, rule, or regulation because Schundler's proposal was never enacted and because plaintiff's objection was not to any "activity, policy or practice" as required by N.J.S.A. 34:19-3. However, Judge Gallipoli denied defendants' motion to ...