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Wilcox v. Borough of Lawnside

November 23, 1998

RE: WILCOX V. BOROUGH OF LAWNSIDE


MEMORANDUM

TO: Judge Simandle

FROM: John Mullen

This matter is before the court on defendant's motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

A. The Complaint

Plaintiff, Eric J. Wilcox ("Wilcox"), brings this action under 42 U.S.C. § 1983, alleging that defendant, the Borough of Lawnside ("Lawnside"), deprived him of a protected property interest in his position as a police officer in violation of the due process clause of the Fourteenth Amendment when it terminated his employment on September 28, 1995.

Specifically, Wilcox alleges in the First Count of his Complaint that his position as a police officer is protected "by the laws of the State of New Jersey including, but not limited to, N.J.S.A. 40A:14-1 et seq., the ordinances of the Borough of Lawnside and the Rules and Regulation (sic.) of the Lawnside Police Department." (Complaint at ¶ 9.) Wilcox claims that he "was not afforded a meaningful hearing or opportunity to be heard respecting any rational basis for the decision" to terminate his employment before the implementation of the decision. (Id. at ¶ 7.) Wilcox further alleges the proffered reason for his termination "was pretextual and committed in bad faith." (Id. at ¶ 6.)

In the Second Count of his Complaint, Wilcox repeats the allegations of the First Count and further alleges that Lawnside's actions were "pretextual, in bad faith, and without basis" and that they "were committed to circumvent the requirements and procedures for removal of police officers in the State of New Jersey and the Borough of Lawnside." (Id. at ¶ 14.) Wilcox further alleges that Lawnside's actions "were both procedurally and substantively deficient and violated both [plaintiff's] procedural and substantive due process rights." (Id. at ¶ 15.)

Wilcox seeks relief in the form of reinstatement, an award of damages for lost salary, benefits and privileges, compensatory damages, counsel fees and costs under 42 U.S.C. § 1988, and any additional relief the court deems appropriate.

B. Lawnside's Motion to Dismiss

Lawnside's motion to dismiss is predicated on its status as a municipality governed by New Jersey's Civil Service Act, N.J.S.A. 11A:1- 1 et seq. (Harris Cert. at ¶ 4.) Lawnside claims that it hired Wilcox effective October 1, 1994 as a provisional full time police officer under N.J.S.A. 11A:4-13(b), which expressly provides that such an appointment may not exceed 12 months duration, and that Wilcox knew it was "necessary" for him to complete and pass the civil service exam during the year of his provisional employment. (Id. at ¶ 5.) Lawnside further claims that because Wilcox admittedly failed the civil service examination that was administered during his year of provisional employment, it "had no other alternative but to so terminate Mr. Wilcox." (Id. at ¶ 8.)

Essentially, Lawnside argues that Wilcox had no protected property interest in his position as a police officer because his provisional appointment was limited to one year by N.J.S.A. 11A:4-13(b) and any continued employment was contingent upon his successful completion of the civil service exam, which Wilcox admittedly failed. Lawnside contends that N.J.S.A. 40A:14-147, which requires notice, a written complaint, and a hearing before a police officer may be dismissed, does not grant Wilcox any due process rights or a protected property interest in his former position because that statute does not apply in a civil service municipality like Lawnside.

C. Wilcox's Opposition

Wilcox fleshes out the factual background of his case in his opposition to Lawnside's motion to dismiss. Wilcox notes that Lawnside originally hired him on March 16, 1993 as an unclassified Special Law Enforcement Officer, Class II, pursuant to N.J.S.A. 40A:14-146.10. (See Plaintiff's Mem., Ex. A.) Thereafter, Wilcox successfully completed the Basic Course for Class II Special Law Enforcement Officers and received a certificate on June 24, 1994. (See Plaintiff's Mem., Ex. B.) On or about August 19, 1994, Wilcox received a certificate from the New Jersey Police Training Commission reflecting his satisfactory completion of the Basic Course for Police Officers. (Plaintiff's Mem., Ex. C.) Lawnside then hired Wilcox as a full time police officer on October 1, 1994.

Wilcox concedes that his employment on October 1, 1994 was a provisional appointment under N.J.S.A. 11A:4-13(b), but claims that he became a permanent member of the Lawnside police force as of August 19, 1995 by virtue of an agreement entered into by Lawnside and the New Jersey Policemen's Benevolent Association, Local #30 ("Local #30"), on July 1, 1994. Article I, Subsection 4A-D of the agreement provides that a recruit becomes a probationary police officer upon graduation from an accredited police academy and that a probationary police officer becomes permanent after one year. (See Plaintiff's Mem., Ex. E.) Thus, Wilcox argues that he became a permanent police officer on August 19, ...


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