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May 19, 1999


The opinion of the court was delivered by: Bissell, District Judge.


This matter comes before the Court on a motion for summary judgment by all defendants: County of Passaic, Passaic County Board of Freeholders ("the Board of Freeholders" or "the Board"), Peter Eagler, James Gallagher, Georgia Scott and Lois Cuccinello. Plaintiff Darryl W. Siss filed the Complaint ("Compl.") in this action on April 27, 1998 in the Superior Court, Law Division, Passaic County. On May 29, 1998, defendants removed the action to this Court.

Plaintiff claims in this action that defendants terminated him from his position as Assistant County Counsel in violation of various state and federal rights. Count II of plaintiff's Complaint alleges that defendants discharged him in contravention of the New Jersey Open Public Meetings Act, N.J.S.A. 10:4-1 et seq. (Count II). Count I is predicated on numerous theories of recovery. It alleges that defendants "were required as a matter of law and due process . . . to serve him with charges and provide a hearing none of which occurred." (Compl., ¶ 4). In addition, it alleges that defendants' termination of plaintiff because he is a Republican "constitutes an impermissible infringement upon his Federal First Amendment as well as State Constitutional Rights and Common Law rights to be free of retaliatory termination of his public employment by reason of his political affiliations." (Id., ¶ 5). Count I further alleges: "The action of Defendants in addition to being a violation of the Federal and State constitution is a violation of the Federal Civil Rights Act as well as the Laws against discrimination of the State of New Jersey." (Id., ¶ 11). Finally, Count I alleges: "The Plaintiff's right to associate with others for the advancement of his political beliefs and ideas is a form of constitutionally protected activity under the First and Fourteenth Amendments of the Constitution of the United States and the Constitution of the State of New Jersey." (Id., ¶ 18).

Thus, plaintiff's Complaint apparently asserts claims for: violations of New Jersey's Open Public Meetings Act; violations of due process, presumably under the fourteenth amendment to the United States Constitution; infringement of plaintiff's rights of freedom of speech and association under the first and fourteenth amendments to the United States Constitution and under an unidentified provision of the New Jersey Constitution, presumably article I, paragraph 5; unlawful retaliation in violation of the "Federal Civil Rights Act," 42 U.S.C. § 1983, and the "Laws against discrimination of the State of New Jersey," N.J.S.A. 10:5-1 et seq. (id., ¶ 11); and finally, violation of his "Common Law right to be free of retaliatory termination," (id., ¶ 5).*fn1

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1367.


This action arises out of the Passaic County Board of Freeholders' termination of plaintiff as Assistant County Counsel after an election transferred control of the Board of Freeholders to a Democratic majority. Individual defendants Eagler, Gallagher, Scott and Cuccinello are the Democrats on the seven-member Board of Freeholders. They voted to discharge plaintiff over the opposition of the three Republican Freeholders.

Plaintiff asserts many loosely articulated claims, as discussed above. Defendants seek summary judgment as to the entire Complaint. Defendants deny that they violated the Open Public Meetings Act, the New Jersey Law Against Discrimination ("NJLAD"), and the New Jersey Constitution. Although they deny terminating plaintiff because of his party affiliation, they argue for purposes of this motion that doing so would not have violated his federal first and fourteenth amendment rights to freedom of speech and association. With respect to those claims, they argue, moreover, that the individual defendants are shielded from suit by qualified immunity. In addition, defendants deny that plaintiff had any protected property interest in continued employment that could give rise to a due process claim. They accordingly deny violating 42 U.S.C. § 1983. They do not specifically address plaintiff's claim that they retaliated against him in violation of his rights under the common law. (Id., ¶¶, 11, 5).

A. Plaintiff's Appointment and Discharge

On December 3, 1997, the Republican-controlled Board of Freeholders reappointed Mr. Siss, a Republican, to a three-year term as Assistant County Counsel. (See Siss Aff., Mar. 16, 1999, ¶¶ 2-3; Pascrell Aff., Exh. A). Control of the Board of Freeholders passed to the Democratic party on January 1, 1998 because of the November 1997 election of defendants Gallagher and Cuccinello. (Siss Aff., Mar. 16, 1999, ¶ 3).

On March 24, 1998, the Board of Freeholders passed resolutions to rescind Mr. Siss' three-year appointment as Assistant County Counsel and to terminate his employment. (Id., ¶ 4; Eagler Aff., ¶ 7; Pascrell Aff., Exhs. E, F). Mr. Siss was provided written notice of the March 24, 1998 Board of Freeholders meeting and advised that the Board was scheduled to vote on the two resolutions. (Eagler Aff., ¶ 8). His attorney submitted a letter objecting to the proposed resolutions and addressed the Board of Freeholders at the meeting. (Id., ¶¶ 9-10; Plaintiff's Br., Exh. C).

B. The Earlier Freeholders' Meeting

C. Defendants' Reasons for Terminating Plaintiff

Evidence has been submitted, mostly by plaintiff, as to whether plaintiff was terminated because he is a Republican or for other reasons. The Court will not address that issue here, since defendants seek summary judgment based on the argument that they could lawfully terminate plaintiff because of his party affiliation. In support of defendants' argument on that score, Freeholder Eagler explains that the Democratic-controlled Board of Freeholders charged County Counsel Pascrell with assembling a legal team that would assist the Board in achievement of the Board's policy goals, which he describes as, "in particular, the restructuring and modernization of County government." (Eagler Aff., ¶ 11). According to him, the Board terminated Mr. Siss because of "a lack of confidence in Siss' ability to dedicate himself to the achievement of the Board's policy agenda." (Id., ¶ 12).

D. The Nature of the Position of Assistant County Counsel

1. Plaintiff's Evidence

According to Mr. Siss, the position of Assistant County Counsel is not a policy-making position in which political party affiliation is relevant. As Assistant County Counsel part-time for approximately five years, plaintiff primarily handled Sheriff's Department matters. He maintains, "I did not establish procedures and policies for the Sheriff," but states instead, that after procedures and policies were formulated by the Sheriff and his staff, plaintiff performed the "ministerial function of drafting . . . documents" that incorporated them. (Siss Aff., Mar. 12, 1999, ¶ 17). More specifically, plaintiff states:

  My work involved Disciplinary Actions; preparation of
  contracts where required; representing the Sheriff's
  Office in any disputes with any contractors; . . .
  preparing competitive bid documents where required[;
  and] handl[ing] Department of Personnel appeals and
  hearings which had been referred to the Office of
  Administrative Law in Newark.

(Id.) He insists: "At no time in all the years that I served as Assistant County Counsel was I called upon to make any policy decisions or policy recommendations." (Id.) He states: "As Assistant County Counsel, I had no contact with the Freeholders nor was any policy agenda brought to my attention." (Siss Aff., Response to Eagler Aff., Mar. 16, 1999, ¶ 4).

Sheriff Edwin Englehardt, for whom plaintiff worked, states, similarly, that Mr. Siss did not "exercise any policy making functions, nor was he consulted on matters of policy." (Englehardt Aff., ¶ 7). Rather, according to Sheriff Englehardt, Mr. Siss' work "was related to matters such as reviewing contracts, prosecuting disciplinary charges, representing us in Department of Personnel referrals to the Office of Administrative Law and other routine legal matters that arose from time to time." (Id., ¶ 6).

Similarly, Republican Freeholder Walter W. Porter, Jr. states that "Mr. Siss's work did not involve him in politics or policy" and that "[p]arty political affiliation is not relevant to the performance of an Assistant County Counsel's responsibilities." (Porter Aff., ¶¶ 3-4). He notes that when Republicans took control of the Board of Freeholders 12 years ago, they retained the Assistant County Counsels who had been appointed by the preceding Democratic-controlled Board. (Id., ¶ 3).

2. Defendants' Evidence

  Labor Counsel or Assistant County counsel . . . shall
  be responsible for:
  a. All New Jersey Department of Personnel related
  hearings concerning contested matters between
  employees and the employer . . . [;]
  b. Handl[ing] all litigation arising as a result of
  disputed labor contracts or sections of contracts . .
  . [; and]
  c. Monitor[ing] and enforc[ing] the terms and
  conditions of employment as outlined in the
  collective bargaining agreements.

(Id., § 3.14).

In addition, the Administrative Code enumerates the following duties of the Department of Law, to be supervised by the County Counsel:

    a. Attend meetings of the Board, and give opinions
  and rulings on questions of law which may arise at
  Board meetings;
    b. Advise the Board, the Administrator and all
  County agencies, when requested to do so, with
  respect to their official responsibilities;
    c. Prepare and/or supervise the legal form and
  sufficiency of all contracts, deeds, correspondence
  and other documents and all resolutions and actions
  referred to the Department for preparation and
    d. Represent the County in all matters of
  litigation, appeals in the courts, proceedings before
  any administrative agency and in other appropriate
  matters, and recommend to the Board settlement of any
    e. Maintain records of all actions, suits,
  proceedings, and matters which relate to the County's
  interest and report thereon from time to time as the
  Board may require;
    f. Render such advisory opinions as are requested
  by the Board;
    g. Have the authority to settle matters in dispute
  in an amount not to exceed one thousand dollars
  ($1,000.00); [and]
    h. Attend meetings of the Employees' Retirement
  System of the County of Passaic and render opinions
  and rulings as to pertinent questions of law.

(Id., § 18.2).

In addition, defendants submit Mr. Siss' own description of his professional responsibilities in transition and status memoranda he prepared at County Counsel Pascrell's request. (Pascrell Aff., Exhs. B, C). In a February 4, 1998 memorandum, plaintiff stated that his job responsibilities had initially focused on representing the Sheriff's Department in disciplinary matters but had since expanded to include other issues. (Id., Exh. B). For example, he noted that he was working on a contract dispute with the provider of nursing services to the jail and on the solicitation of bids to replace that provider and expand the medical services performed for the jail by outside contractors. (Id.) He added: "Other duties include working with the Department on procedures and policies and any special interest issues that affect the jail, Sheriff's Patrol and/or court-house." (Id.)

Mr. Siss' list of the matters he was working on in February and March 1998 consists mostly of employment-related disputes but also includes: "Review of infectious disease policy at jail. Working with Deputy Warden on revising;" "Request for Proposal for medical services at jail;" and "Camp Hope." (Id.; see also id., Exh. C). County Counsel Pascrell explains that Camp Hope is a County-operated children's camp not affiliated with the Sheriff's Office and that Mr. Siss served as attorney to the Board-appointed committee responsible for the Camp's administration. (Id., ¶ 11). He adds that Mr. Siss' employment-related responsibilities included providing "legal counsel to the Sheriff's Department regarding disciplinary actions, settlements and litigation strategy." (Id.)

According to Mr. Pascrell: "The Deputy Counsel and Assistant County Counsels are actively involved in the policy-making process and privy to confidential information." (Id., ΒΆ 21). He states that, since he took office, each Assistant County Counsel has been assigned to one of four Board of Freeholders committees and one of the Assistant County Counsels has joined him in regularly attending the meetings of the fifth committee. (Id.) He explains that these committees "review and develop policy and address confidential employment matters," and generate or discuss almost everything that is placed on the Board of Freeholders' agenda. (Id.) In addition, he states, these committees are responsible for review of the County's budget. (Id.) According to Mr. Pascrell, members of the Law Department are assigned to these committees "for the purpose of providing legal counsel which may include an evaluation of the legal merits of a proposed policy." (Id.) Moreover, he ...

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