to cover the promotion of Scully had been included in the amount
needed to sufficiently fund the Borough Police Department Salary
Account); Tr. p. 172, ll. 21-23 and p. 178, ll. 5-7 (testimony of
Councilman Botbyl, stating $500 was all that was needed to fund
the promotion of Scully for the year, and observing that the
salary and wage line for the Borough Police Department contained
unencumbered funds exceeding $132,000); id. p. 100, l. 16 to p.
101, l. 2 (Scully — Scully's promotion filled a vacancy in
departmental staffing for the position of Lieutenant); id. p.
267, l. 22 to p. 268, l. 1 (Chief Noble — same); id. p. 346, l.
25 to p. 347, l. 6 (Former Mayor Engelhardt — same). Accordingly,
the evidence, with all reasonable inferences drawn in favor of
Scully, would allow a reasonable jury to conclude Scully was
promoted. Further, the evidence supports the conclusion that such
promotion was either incidental to the Hawthorne-Local 200 CBA,
and therefore outside the operation of the Local Budget Law, or
filled a then existing position for police Lieutenant for which
an appropriation had previously been made.
C. Section 1983 Claims
1. Elements of a Section 1983 Claim
Section 1983 of Title 42 ("Section 1983")*fn12 provides a
cause of action against a person "who, under the color of any
statute . . . of any State . . . subjects, or causes to be
subjected, any citizen . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws"
of the United States. 42 U.S.C. § 1983. The purpose of Section
1983 is "to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence
fails." Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118
L.Ed.2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247,
254-57, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)); see also Blanche
Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.);
Bolden v. Southeastern Pennsylvania Transp. Auth., 21 F.3d 29,
34 (3d Cir. 1994).
To succeed on a claim brought pursuant to Section 1983, a
plaintiff must prove the violation of a right secured by the
Constitution or laws of the United States and that the conduct
complained of was committed by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101
S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct.
662, 88 L.Ed.2d 662 (1986); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).
2. Claims of Immunity
a. Legislative Immunity for Mayor Criscitelli
At the time of the demotion of Scully, Mayor Criscitelli was
serving as a member of the Borough Council, and had not yet taken
office as mayor of the Borough of Hawthorne. The actions taken by
Mayor Criscitelli, in relation to the claims raised by Scully,
all took place during Mayor Criscitelli's tenure as a
Municipal legislators enjoy an absolute immunity against claims
brought pursuant to Section 1983 where such claims arise from
actions taken in their legislative capacity. See Bogan v.
Scott-Harris, 523 U.S. 44, 53-54, 118 S.Ct. 966, 140 L.Ed.2d 79
(1998) (making explicit the entitlement of local legislators to
absolute immunity for their legislative acts); see also Tenney
v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019
(1951) (state legislators absolutely immune from suit); Lake
Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (regional
legislators entitled to absolute immunity).*fn14
At the time Section 1983 was enacted, local legislators were
entitled to absolute immunity from suit pursuant to the common
law. See Bogan, 523 U.S. at 49, 118 S.Ct. 966; see also T & M
Homes, Inc. v. Township of Mansfield, 162 N.J. Super. 497, 512,
393 A.2d 613 (Law Div. 1978).
Regardless of the level of government, the exercise
of legislative discretion should not be inhibited by
judicial interference or distorted by the fear of
personal liability. Furthermore, the time and energy
required to defend against a lawsuit are of
particular concern at the local level, where the
part-time citizen-legislator remains common place.
And the threat of liability may significantly deter
service in local government, where prestige and
pecuniary rewards may pale in comparison to the
threat of civil liability.
Bogan, 523 U.S. at 52, 118 S.Ct. 966 (citations omitted).
The Bogan Court addressed an issue analogous to the issue
presented in the instant case. The plaintiff in Bogan alleged,
inter alia, that the elimination of her position by city
officials was motivated by a desire to retaliate against her for
the exercise of her First Amendment rights. See Bogan, 523 U.S.
at 47, 118 S.Ct. 966. A jury returned a verdict in favor of the
plaintiff. It found the city and the vice president of the city
council were liable for violating the plaintiff's
constitutionally protected right to free speech. See id. The
Court determined that the council vice president's act of voting
in favor of an ordinance that eliminated the plaintiff's position
was "quintessentially legislative." See id. at 55, 118 S.Ct.
966. Accordingly, the council vice president was found to be
absolutely immune from a suit brought pursuant to Section 1983.
See id. at 55-56, 118 S.Ct. 966.
Scully argues that the Defendants' conduct in demoting him was
not legislative. See Opposition Brief at 34. Scully asserts the
actions of the Defendants' were managerial and not legislative.
See id. In making this argument, Scully improperly
characterizes the action taken by the members of the Borough
Council. The Borough Council did not demote Scully. Rather, the
Borough Council voted on an appropriations resolution and refused
to fund the promotion of Scully.
The Bogan Court characterized absolute legislative immunity
as encompassing "all actions taken in the sphere of legitimate
legislative activity." Id. at 54, 118 S.Ct. 966. "Whether an
act is legislative turns
on the nature of the act, rather than on the motive or intent of
the official performing it." Id. The act of passing an
ordinance that eliminated the plaintiff's position "reflected a
discretionary, policymaking decision implicating the budgetary
priorities of the city and the services the city provides to its
constituents." See id. at 55-56, 118 S.Ct. 966.
As in Bogan, the instant case presents a situation in which
the Borough Council addressed a resolution that concerned
budgetary matters; these concerns implicate the discretionary,
policymaking processes traditionally assigned to legislators.
See id. at 56, 118 S.Ct. 966. Mayor Criscitelli voted, in his
capacity as a councilman, not to fund the promotion of Scully.
This action fell within the discretionary, budgetary functions
traditionally assigned to legislators. Accordingly, Mayor
Criscitelli is entitled to absolute legislative immunity for the
actions he took as a member of the Borough Council. Because Mayor
Criscitelli is immune from suit, he is entitled to judgment as a
matter of law in his favor on those counts alleging violations of
b. Qualified Immunity For Chief Noble
Chief Noble argues he is entitled to qualified immunity from
the Section 1983 claims raised by Scully. See Individual
Defendants Moving Brief at 33-36. "Government officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly-established statutory or constitutional rights of
which a reasonable person would have been known." Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982); see also Ryan v. Burlington County, 674 F. Supp. 464,
479 (D.N.J. 1987), aff'd, 860 F.2d 1199 (3d Cir. 1988).
When addressing whether a public official is entitled to
qualified immunity, this Circuit requires inquiry first be made
into whether the plaintiff has established a claim for a
constitutional violation. See Assaf v. Fields, 178 F.3d 170,
173 (3d Cir. 1999) (citing Siegert v. Gilley, 500 U.S. 226,
231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)); Malignaggi v.
County of Gloucester, 855 F. Supp. 74, 79 (D.N.J. 1994). Only
after the alleged constitutional violation has been established
should the question of qualified immunity be addressed. See
Assaf, 178 F.3d at 173.
As explained below, Scully has failed to present evidence from
which a jury could reasonably conclude Chief Noble violated his
constitutional rights. Accordingly, the issue of qualified
immunity need not be addressed. See Assaf, 178 F.3d at 173.
3. Procedural Due Process
The determination of whether a plaintiff has adequately alleged
a violation of the Fourteenth Amendment's Due Process Clause
involves two steps. First, it must be determined whether the
plaintiff has proved interference with a protected property
interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70 &
n. 1, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also LaChance v.
Erickson, 522 U.S. 262, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998);
Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998); Larsen v.
Senate of Commonwealth of Pennsylvania, 154 F.3d 82, 92-93 (3d
Cir. 1998). Second, it must be determined whether the procedures
employed by the state to protect that property interest were
constitutionally inadequate. See Abbott, 164 F.3d at 146;
Larsen, 154 F.3d at 92-93.
Only Question 1 of the Agreed Verdict Sheet appears to ask the
Jury to make a determination as to whether Scully was deprived of
a property right. See Agreed Verdict Sheet, Quest. 1. Question
Did the Plaintiff prove, by a preponderance of the
evidence, that he held the position of police
lieutenant in the Borough of Hawthorne and that
some or all of the following Defendants deprived him
of his constitutional property rights
in that position on account of his political
Id. (emphasis in the original).