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Stomel v. City of Camden

March 10, 2006

ELLIOT S. STOMEL, ESQUIRE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
THE CITY OF CAMDEN, GWENDOLYN FAISON, THE CAMDEN CITY COUNCIL, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS
MAYOR MILTON MILAN, RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-9164-99.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 1, 2006

Before Judges Conley, Weissbard and Winkelstein.

Plaintiff Elliot Stomel was the public defender for the City of Camden (the City) from 1982 until 2000, when defendant Milton Milan, the mayor of Camden, terminated his employment. Plaintiff claims he was dismissed in retaliation for reporting an extortion attempt, and for providing testimony that implicated Mayor Milan in unlawful activity. He appeals from a summary judgment that dismissed his claims alleging violations of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and his claim against the City for a violation of 42 U.S.C. § 1983.*fn1 His § 1983 claim against Mayor Milan proceeded to trial and a jury awarded plaintiff over $300,000 in damages.

On appeal, plaintiff seeks reinstatement of his CEPA claims and his § 1983 claim against the City. He also asserts that the City should be held responsible for his judgment against Mayor Milan under "principles of agency and vicarious liability." The City has filed a cross-appeal from the Law Division's denial of its motion for counsel fees.

We have carefully considered the arguments of all parties in light of the facts and existing law. We affirm the dismissal of plaintiff's § 1983 claim against the City; the denial of defendants' request for counsel fees; and the Law Division's September 17, 2004 order that limited the judgment following the jury trial to Mayor Milan and denied plaintiff's application for judgment against the City. We reverse the summary judgment dismissing plaintiff's CEPA claim against the City.

I. THE FACTS

Plaintiff, an attorney, served as the City's municipal public defender from 1982 until he received a letter dated December 17, 1999, from Mayor Milan that said: "I have decided to appoint another lawyer as the Public Defender for the City of Camden, effective January 3, 2000, pending final City Council action. Therefore, please submit a final report and case status to [the City's business administrator] on or before Wednesday, December 29, 1999." Plaintiff had been employed under one-year contracts for seven of his years as the City's public defender, with the most recent contract covering the period November 1, 1997 to October 31, 1998.

The City paid plaintiff monthly; as of January 8, 1998, he was compensated at a rate of $30,000 per year. He negotiated his compensation with the court administrator or director and submitted a request for approval.

The parties stipulated that for the years 1996 through 2001, the City issued plaintiff 1099 tax forms, which stated that payment represented either "non-employee compensation" or "other income." From 1995 through 2001, plaintiff reported the compensation he received from the City to the federal and State government as client fees, not wages.

Plaintiff maintained his own law practice in Westmont; he had three employees. His business had its own federal tax identification number. Plaintiff, either individually or through his law firm, was responsible for payment of his secretarial and support staff salaries with no reimbursement from the City.

Plaintiff met with public defender clients at his own office on an average of twice a week. His office staff worked with the municipal court staff to coordinate the scheduling of appointments; the court staff informed the clients of their appointment times. Plaintiff appeared in court on behalf of public defender clients approximately once a week and made special appearances in conflict cases or when requested by the court director. Other than designated court sessions, plaintiff did not have a regular schedule with the City. While not required to account for his hours spent on each case, the City did require him to submit a letter each month documenting the number of public defender clients he represented, the dates he met with clients, and the dates of his court appearances.

As public defender, plaintiff "answered to" the court director, who scheduled plaintiff's court days. He did not, however, have a supervisor who reviewed his casework or dictated trial strategy, nor did he recall being given guidelines for managing his cases. He represented and advised his clients as he thought best without interference from anyone in City government.

Although plaintiff had access to the municipal court's telephone system, he was never issued an employee identification card and was not given an identification number to access the City's computer system. He received no reimbursement from the City for office or travel expenses, and the City did not provide him with health or pension benefits. The City did not assign plaintiff a secretary or court clerk, or afford him office space. The municipal court staff did, however, provide plaintiff with the discovery necessary for his cases.

According to plaintiff, the facts leading to his removal from his position began in the fall of 1997, when he was solicited for a campaign contribution by Joseph Caruso, the Camden municipal prosecutor, on behalf of newly elected Mayor Milan. Plaintiff said Caruso told him he needed to pay $5,000 as a "contribution" to "guarantee" the public defender position in 1998. Plaintiff reported the solicitation to both local and federal authorities. At the direction of the Camden County Prosecutor's Office and with the assistance of the FBI, plaintiff made the $5,000 payment. In February 1998, plaintiff was reappointed as public defender.

The federal investigation resulted in Caruso's indictment. Plaintiff testified at Caruso's trial on December 7, 1999, directly implicating Milan. On December 17, 1999, three days after a mistrial was declared because the jury was unable to reach a verdict, plaintiff received the dismissal letter from Milan. Before receiving the letter, plaintiff had not received any complaints of poor job performance, and Milan did not recall any problems or concerns with plaintiff's performance as public defender. After plaintiff received the letter, the municipal court judge assigned public defender cases to other lawyers.

Faison became mayor in December 2000; she appointed a new municipal public defender in March 2001.

In granting defendants' summary judgment motion on plaintiff's CEPA claim, the court found that plaintiff was not an "employee" of the City; consequently, the judge did not reach the issue of whether plaintiff had established a prima facie case under CEPA. The court further found that, although plaintiff's § 1983 claim could proceed against Milan, the City could not be held liable for Milan's actions in dismissing plaintiff as public defender.

A jury awarded plaintiff $316,464.89 for his ยง 1983 claim against Milan, who is currently incarcerated in federal prison; ...


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