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Ballinger v. Delaware River Port Authority

June 25, 2002

RALPH S. BALLINGER, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
DELAWARE RIVER PORT AUTHORITY, PAUL DRAYTON, VINCENT BORRELLI, RICHARD SULLIVAN, ALVIN WOODHOUSE, DAVID J. MCCLINTOCK AND ALAN DANIELS, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 311 N.J. Super. 317 (1998).

SYLLABUS BY THE COURT

This appeal resolves two issues of first impression: first, whether the Delaware River Port Authority (DRPA) and its employees are subject to the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA); second, if they are not, whether they are subject to the New Jersey common law principle that protects employees from being discharged in violation of a clear mandate of public policy.

The DRPA is a bi-state agency that was created by a Congressionally-approved compact (compact) between New Jersey and Pennsylvania to develop and maintain bridges and port facilities between the two states. From April 1984 until February 1995, defendant DRPA employed the plaintiff as a non-union police officer. In November 1994, plaintiff noticed that pieces of furniture began appearing at the DRPA building where he was assigned to work. Apparently an agreement had been reached between the Camden Redevelopment Agency and DRPA that purportedly allowed certain DRPA employees to take items from the abandoned RCA building in Camden, but plaintiff was not aware of this agreement. Plaintiff overheard, however, a conversation between another officer and one of plaintiff's supervisors concerning the furniture. Plaintiff claimed that the officer said there was an old, abandoned RCA building in Camden where a security guard would let him go in and take whatever he wanted. Plaintiff knew that a few days prior to this conversation DRPA and Camden Police had been called to investigate burglaries and vandalism in the RCA building. Because plaintiff did not know how far up the ranks this situation went, he sought advice from a captain of the New Jersey State Police who was a long-time friend. Acting on his advice, plaintiff took pictures of the furniture and sent them with a letter to the captain. By communicating information about perceived illegal activities, plaintiff went outside of his chain of command as a DRPA police officer and thereby violated DRPA policies and procedures. The DRPA learned about plaintiff's independent investigation and correspondence with the State Police captain and, by letter dated February 8, 1995, terminated plaintiff for disregarding his chain of command and disclosing information about the DRPA to an outside agency.

Plaintiff filed a complaint alleging that DRPA terminated his employment in violation of CEPA, and later amended the complaint to add CEPA claims against DRPA employees individually. The trial court granted the defendants' motion to dismiss on the ground that CEPA does not apply to DRPA or its employees because DRPA cannot be subjected to the unilateral action of any one of its member states' legislatures. The Appellate Division affirmed, finding that CEPA was not "substantially similar" to Pennsylvania's Whistleblower Law such that the claim could proceed. Ballinger v. Del. River Port Auth., 311 N.J. Super. 317, 327-29 (App. Div. 1998)(Ballinger I). The trial court also denied plaintiff's cross-motion to file another amended complaint to include common law retaliatory discharge claims. The Appellate Division reversed and remanded, instructing the trial court to compare the laws of New Jersey and Pennsylvania. On remand, the trial court dismissed the amended complaint finding no similarity in the common law of the two states that applied to this cause of action. The Appellate Division reversed in an unpublished decision (Ballinger II). The court subsequently amended its decision, on motion by the DRPA, to allow the claims against individual employees to proceed (Ballinger III).

HELD: A bi-state agency is subject to the law of one of the member states, statutory or common law, if that law is substantially similar to the law of the other member state. Applying that test, the Delaware River Port Authority, a bi-state agency, is not liable to plaintiff under the New Jersey Conscientious Employee Protection Act, but is subject to plaintiff's common law claim for wrongful discharge.

1. When Congress approves an interstate compact, the agreement becomes the law of the Union. A bi-state entity created by such a compact is not subject to the unilateral control of any one of the states. A state's unilateral imposition of additional duties on the bi-state entity is impermissible absent express authorization in the compact or joint legislation by the creator states. (Pp. 6-8).

2. The corollary of the proposition that neither state may individually impose its will on the bi-state agency is that the agency may be made subject to complementary or parallel state legislation. Under that principle, one compact state's statute can be applied to the bi-state agency if it is substantially similar to an enactment of the other state. The principle applies even where the statutes at issue do not expressly refer to the bi-state agency. State courts in both New Jersey and Pennsylvania have recognized that complementary state legislation may be applied to DRPA and other bi-state agencies. Moreover, a recent decision of the United States Court of Appeals for the Third Circuit found a duty by DRPA to bargain collectively because the New Jersey statutes and Pennsylvania statutes are complementary and parallel. Here, the Court applies the Third Circuit's holding and reaffirms its prior conclusion that the complementary or parallel legislation test is to be applied in determining whether the laws of one compacting state will apply to a bi-state agency. (Pp. 8 to 11).

3. Under the compact, DRPA has the express power to "sue and be sued." This provision is considered a waiver of sovereign immunity. If DRPA's authority to institute common law suits against others is derived from this power to sue, then logically the power to be sued infers the corollary proposition: a plaintiff can sue DRPA to enforce a common law claim. As the agent of each state, a bi-state agency is subject to all of its laws, statutory or common law, except insofar as the states agreed expressly or by fair implication to place it beyond them. As such, the common law can be applied to the extent it fills a void in the compact. However, to impose duties on DRPA, the common law of the two states involved in the compact, like the statutory law, must be substantially similar so that its application cannot be deemed a unilateral imposition. The Court holds that the substantial similarity test applies to common law claims as well as statutory law claims and affirms the decision in Ballinger I on that issue. (Pp. 11 to 16).

4. To be deemed substantially similar, CEPA and Pennsylvania's Whistleblower Law must have adopted a substantially similar policy. These two laws, however, differ in scope, filing period, damages and the right to trial by jury and those difference reflect that the goals of the overriding legislative schemes are different. A fair reading of the two statutes indicates that they are not complementary or parallel so as to subject DRPA to CEPA. The Court agrees further with the court in Ballinger I that plaintiff's ineffective attempt to bring a CEPA claim does not constitute a waiver of common law causes of action. (Pp. 16 to 21).

5. In comparing the common law of the two states, it is clear that each permits a common law claim for wrongful discharge in violation of a clear mandate of public policy. Under the compact, DRPA police officers are required and are expected to function as would other police officers in either New Jersey or Pennsylvania. In those states, a fundamental duty of police officers is to use due diligence in discovering and reporting infractions of the law. Because plaintiff alleges that he was fired for investigating and reporting suspected criminal activity, he has stated a claim for wrongful discharge under the laws of both New Jersey and Pennsylvania. As such, the Court affirms Ballinger II. (Pp. 21 to 30).

6. Finally, in both New Jersey and Pennsylvania, a claim for wrongful retaliatory discharge may be considered a tort action and, in both states, an individual who personally participates in the tort may be held individually liable. For this reason, the Court affirms the judgment in Ballinger III denying immunity to the individual defendants for their own tortious conduct.

The judgments of the Appellate Division in Ballinger I, II, and III are AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, VERNIERO, LaVECCHIA and ZAZZALI join in JUSTICE COLEMAN's opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Coleman, J.

Argued April 29, 2002

This appeal presents two issues of first impression: first, whether the Delaware River Port Authority (DRPA) and its employees are subject to the New Jersey Conscientious Employee Protection Act (CEPA); second, if they are not, whether they are subject to the New Jersey common law principle that protects employees from being discharged in violation of a clear mandate of public policy. Because DRPA is a bi-state agency, a unique creature of a federally approved compact between two states, this Court must determine as a threshold matter the proper methodology to apply in resolving when one state can impose obligations on a bi-state agency.

I.

Plaintiff Ballinger appeals from grants of summary judgment in favor of defendant DRPA and its individual employees. Accordingly, in reviewing those motions for summary judgment, we must accord plaintiff the benefit of all reasonable inferences that may be drawn from the evidence submitted by the parties. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

From April 1984 until February 8, 1995, defendant DRPA employed plaintiff Ralph S. Ballinger as a non-union police officer. In November 1994, Ballinger noticed that pieces of furniture began appearing at the DRPA building where he was assigned to work. He also overheard a conversation between another officer and Captain Alvin Woodhouse, one of Ballinger's supervisors, concerning the furniture. According to Ballinger, the officer was laughing and said that there was an old, abandoned RCA building in Camden where a security guard would let him in and "you could just go down and take whatever you wanted." Ballinger knew that just a few days prior to that discussion DRPA and Camden Police had been called to investigate burglaries and vandalism in the very same building.

Ballinger did not know "how far [up the ranks] this went as far as hearing Captain Woodhouse ask for furniture." So, when he happened to see a long-time personal and family friend, Captain Bernard Gallagher of the New Jersey State Police, he sought advice from the Captain concerning what if anything he should do. Acting on Captain Gallagher's suggestion, Ballinger took photographs of the furniture and sent them along with a letter to Captain Gallagher. By communicating information about the perceived illegal activities *fn1 in that manner, Ballinger went outside his chain of command as a DRPA police officer and thereby violated DRPA policies and procedures. The DRPA learned about Ballinger's independent investigation and correspondence with Captain Gallagher. By letter dated February 8, 1995, the DRPA terminated Ballinger for disregarding his chain of command and disclosing information about the DRPA to an outside agency.

In December 1995, Ballinger filed a one-count complaint alleging that the DRPA terminated his employment in violation of CEPA, N.J.S.A. 34:19-1 to -8. Ballinger later amended that complaint to include CEPA claims against DRPA employees Paul Drayton, Vincent Borrelli, Richard Sullivan, Alvin Woodhouse, David McClintock and Alan Daniels, individually. The DRPA and the individual employees filed motions to dismiss for failure to state a claim. The trial court granted the motions on the ground that CEPA does not apply to DRPA or its employees because DRPA cannot be subjected to the unilateral action of any one of its member states' legislatures. The Appellate Division affirmed, finding that CEPA was not "substantially similar" to Pennsylvania's Whistleblower Law such that the claim could proceed. Ballinger v. Del. River Port Auth., 311 N.J. Super. 317, 327-29 (App. Div. 1998) (Ballinger I).

The trial court also denied Ballinger's cross-motion to file another amended complaint to include common law retaliatory discharge claims. The Appellate Division reversed and remanded, instructing the trial court to make "a painstaking comparison of the common laws of New Jersey and Pennsylvania, like the one we engaged in as to CEPA and the Whistleblower Law." Id. at 332. On remand, the trial court dismissed the amended complaint, finding "no similarity in the common law of New Jersey and Pennsylvania that applies to this cause of action by this plaintiff." The Appellate Division reversed in an unpublished decision. Ballinger v. Del. River Port Auth. (Ballinger II). The court subsequently amended its decision, on motion by DRPA, to allow the claims against the individual employees to proceed. Ballinger v. Del. River Port Auth. (Ballinger III).

We granted DRPA's petition for certification concerning the holding in Ballinger II that a common law claim for wrongful discharge can be asserted against DRPA. 170 N.J. 207 (2001). That petition also requested review of Ballinger III, which we also granted, regarding the liability of the individual employees. In addition, we granted Ballinger's cross-petition for certification to decide whether the Appellate Division was correct in Ballinger I in ...


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