The opinion of the court was delivered by: Per Curiam.
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 319 N.J. Super. 148 (1999).
We affirm the judgment of the Appellate Division substantially for the reasons expressed in Judge Skillman's opinion below. Cedeno v. Montclair State Univ., 319 N.J. Super. 148 (App. Div. 1999). We add the following to address the interplay among N.J.S.A. 2C:51-1 to -5 (the Forfeiture Statute), N.J.S.A. 10:5-1 to -49 (New Jersey's Law Against Discrimination (LAD)), and N.J.S.A. 34:19-1 to -8 (the Conscientious Employee Protection Act (CEPA)).
After being discharged from his position as Director of Purchasing, plaintiff sued his former employer, Montclair State University (MSU), for discrimination on the basis of age and ethnicity under the LAD, and for retaliatory discharge under CEPA. During discovery, MSU learned that plaintiff failed to disclose a prior conviction for bribery in the course of public employment. Plaintiff's felony conviction disqualified him from public employment pursuant to N.J.S.A. 2C:51-2d. Based on that fact, MSU filed a motion for summary judgment, arguing that plaintiff was never entitled to the position and that the discharge was thus lawful.
The Law Division denied the motion, concluding that after-acquired evidence is irrelevant during the liability stage of a discrimination case. The Appellate Division reversed. In so doing, the court found that evidence that plaintiff was forever barred from government employment was of paramount concern. We agree.
The legislative intent of the Forfeiture Statute is "`to preclude those who have once violated the public trust from [having] a second opportunity.'" Pastore v. County of Essex, 237 N.J. Super. 371, 377 (App. Div. 1989) (quoting State v. Musto, 187 N.J. Super. 264, 314 (Law Div. 1982), aff'd, 188 N.J. Super. 106 (App. Div. 1983)), certif. denied, 122 N.J. 129 (1990). As we stated in Moore v. Youth Correctional Institute, 119 N.J. 256, 271 (1990), "[t]he forfeiture statute . . . reflects a belief that the circumstances surrounding a criminal conviction bear directly on an employee's competency and capacity to . . . perform any . . . job for the state." Moreover, forfeiture is appropriate when an employee's "infraction casts such a shadow" that government employment would be "incompatible with the traits of trustworthiness, honesty, and obedience to law and order . . . ." Id. at 270.
The Legislature has created this "seemingly harsh" sanction of absolute disqualification from government employment to "codif[y] a long-standing policy against retention of offenders in government service." State v. Lee, 258 N.J. Super. 313, 317 (App. Div. 1992). The Forfeiture Statute "was designed to protect the public, not the offender, and we construe it so as to advance this objective." Pastore, supra, 237 N.J. Super. at 377-78. Moreover, [i]t is the public policy of this State that "person[s] holding any public office, position or employment" must avoid committing serious criminal acts or offenses which involve or touch upon their governmental duties, or sacrifice their right to governmental employment. This is a harsh response to a problem serious enough to justify the harshness. The purpose is to prevent miscreants and corrupt officials from again holding office. [Id. at 378-79 (citations omitted).]
That said, we also recognize the important public policies of the LAD and CEPA and the need to construe the statutes liberally to achieve those policies. Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 418, 431 (1994). The purpose of both the LAD and CEPA is deterrence of improper employer conduct to protect society from the vestiges of discrimination. "Both CEPA and LAD . . . seek to overcome the victimization of employees and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers." Id. at 418. The overriding policy of the LAD and CEPA, along with the policy of the Forfeiture Statute, is to protect society at large.
In view of the quality of proofs in this action, we believe that whatever value may be achieved by permitting plaintiff's case to proceed to trial is outweighed by the policy against allowing that same person to obtain public employment after having been convicted of bribery. Contrary to our dissenting colleagues, we do not believe that a different result is required by McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995). The plaintiff in that case was not statutorily barred from holding her position. Rather, after the plaintiff's termination, her employer learned that she had violated company policy. This case is different. Here, plaintiff was not permitted by law to occupy the position. Plaintiff is part of a narrow class of individuals who are subject to the rule of forfeiture pursuant to statute.
Nevertheless, we stress that there may be aggravated circumstances "where the need to vindicate the policies of the LAD or CEPA and to compensate an aggrieved party for tangible physical or emotional harm could lead to the conclusion that even a person who was absolutely disqualified from holding public employment should be allowed to seek compensation for harm suffered during that employment." Cedeno, supra, 319 N.J. Super. at 159-60 (citing Lehmann v. Toys `R' Us, Inc., 132 N.J. 587 (1993)(involving aggravated sexual harassment)). Such circumstances may be evident because of either the level of harm sustained by a plaintiff or the nature of a defendant's conduct. In this instance, plaintiff failed to allege sufficiently egregious conduct or severity of harm to overcome the high hurdle of the Forfeiture Statute, which otherwise mandates his discharge.
Accordingly, we agree with the Appellate Division that, on the record presented, "the pursuit of a discrimination claim against the State by a convicted felon who is disqualified from public employment is so unusual a circumstance that the denial of any relief to such a plaintiff does not create a realistic danger of undermining the effective enforcement of the LAD or CEPA." Cedeno, supra, 319 N.J. Super. at 162. We leave open the possibility that a person absolutely disqualified from public employment may be able to allege facts that would constitute aggravated harm or egregious discriminatory conduct sufficient to survive a motion for summary judgment. Because plaintiff has not done so here, we affirm the judgment below.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN, and VERNIERO join in this opinion. JUSTICE O'HERN filed a separate dissenting opinion in which JUSTICE LONG joins.
I would reverse on the basis of the dissenting opinion in the Appellate Division. 319 N.J. Super. 148, 163-173 (1999). I appreciate that the Court has circumscribed its ruling to this limited context of a previously convicted person's statutory disqualification from office under N.J.S.A. 2C:51-2, but I believe that the Court has set the bar too high in requiring "aggravated [physical or emotional] harm [to plaintiff] or egregious ...