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.,
The Court has jurisdiction over this action pursuant to
28 U.S.C. § 1331 and 1367.
FACTS AND BACKGROUND
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
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.,
B. The Earlier Freeholders' Meeting
Plaintiff's Open Public Meetings Act claim focuses on an
earlier meeting among at least some of the Freeholders and Mr.
William Pascrell, the newly-appointed
County Counsel. On March 6, 1998, Mr. Pascrell asked for Mr.
Siss' resignation, telling plaintiff that he had met with the
Freeholders and they had no confidence in Mr. Siss' ability to
represent them. (Siss Aff., Mar. 16, 1999, ¶ 12). Mr. Siss claims
that any such meeting violated the Open Public Meetings Act since
Mr. Siss was not given prior notice of it.
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.,
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
Defendants contend that the position of Assistant County
Counsel is a confidential, policy-making position. With respect
the duties of Assistant County Counsel, they submit relevant
portions of the Passaic County Administrative Code, as revised in
December 1991, which was in effect at the time of plaintiff's
termination. (See Pascrell Aff., Exh. G). In a section titled
Labor Relations, the Administrative Code provides:
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
a. Attend meetings of the Board, and give opinions
and rulings on questions of law which may arise at
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
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).