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Maimone v. City of Atlantic City

July 20, 2006

ANGELO J. MAIMONE, PLAINTIFF-RESPONDENT,
v.
THE CITY OF ATLANTIC CITY, THE ATLANTIC CITY POLICE DEPARTMENT AND ARTHUR C. SNELLBAKER, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether a claim can be maintained under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by a police officer who alleges he was transferred in retaliation for objecting to the chief of police's decision to terminate enforcement of criminal laws prohibiting prostitution.

Angelo Maimone has been a member of the Atlantic City police department since 1988. He was transferred in 1991 to detective in the Special Investigations Unit. As a result, Maimone became contractually entitled after one year to receive an additional 3% of his base salary. Beginning in 1993, Maimone was assigned to conduct investigations of prostitution and other sexually-related offenses.

According to Maimone, around eight months after Arthur C. Snellbaker was appointed chief of police, Captain Glass told Maimone at a staff meeting that he could not initiate any new prostitution investigations unless they "directly impacted the citizens of Atlantic City." Shortly thereafter, Maimone's immediate supervisor, Sergeant Abrams, directed him to terminate all pending investigations of prostitution and to conduct only narcotics investigations. Around this time, the files Maimone maintained regarding persons involved in the promotion of prostitution were removed from a filing cabinet under his control, and Maimone's access to those files was restricted. Maimone sent a memorandum to Abrams regarding his inability to gain access to those files. According to Maimone, after Abrams read this memorandum, he said to Maimone: "You're asking for it."

Maimone also complained about Atlantic City's failure to enforce N.J.S.A. 2C:34-7, which makes it a fourth-degree offense for a sexually-oriented business to operate within 1,000 feet of a church or a school. He sent letters to the municipal solicitor requesting action. When the solicitor failed to take any action, Maimone sent a letter to Abrams. Within days after he sent this, Captain Glass said to Maimone: "You're out of here, you're going to patrol." Shortly thereafter, Maimone was transferred from his detective position in the Special Investigations Unit to patrol officer.

Maimone brought this CEPA action against Atlantic City and Chief Snellbaker. Defendants moved for summary judgment. The trial court ruled that Maimone's complaint about the municipality's failure to enforce these laws was simply a disagreement with a discretionary decision of supervisory police officials regarding the allocation of police personnel and resources. Consequently, the trial court concluded that Maimone could not be found to have reasonably believed those discretionary policy decisions violated a clear mandate of public policy. Accordingly, the trial court granted defendants' motion for summary judgment. The Appellate Division reversed in an unreported opinion.

HELD: A police officer can maintain a CEPA claim for retaliatory action taken against him for objecting to the police department's termination of the enforcement of criminal prostitution laws based on the officer's objectively reasonable belief that the department's policy decision was incompatible with a clear mandate of public policy concerning public health, safety and welfare.

1. Maimone's CEPA claim rests solely on subsection (3) of N.J.S.A. 34:19-3c, which prohibits retaliatory action against an employee because the employee objected to a policy that is "incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment." The provisions of the Code of Criminal Justice that prohibit prostitution constitute "a clear mandate of public policy concerning the public health, safety or welfare[.]" (pp. 8-13)

2. To prevail on a CEPA claim under 3c(3), Maimone is not required to show that defendants' alleged policy decision to cease enforcement of the provisions of the Code prohibiting prostitution actually violated or was incompatible with a statute, rule or other clear mandate of public policy. Maimone only has to show that he had an "objectively reasonable belief" in the existence of such violation or incompatibility. Maimone may carry this burden by demonstrating that "there is a substantial nexus between the complained-of-conduct" -- the cessation of investigations of promotion of prostitution and failure to enforce laws relating to the location of sexually-oriented businesses -- and "[the] law or public policy identified" by Maimone -- in this case the provisions of the Code prescribing such criminal conduct. This Court concludes that Maimone's proofs met this burden. (pp. 13-17)

3. CEPA prohibits an employer from taking "retaliatory action" against an employee for protected conduct.

N.J.S.A. 34:19-3. Under the definition of retaliatory action, any reduction in an employee's compensation is considered to be "an adverse . action in terms and conditions of employment." The resulting reduction in Maimone's compensation and loss of other benefits could support a finding that Maimone suffered an "adverse employment action." (pp. 17-19)

4. An employee who brings a CEPA claim must show a causal connection between the whistle-blowing activity and the adverse employment action. Maimone made a series of complaints to his superiors in the Atlantic City police department concerning their alleged failure to enforce the laws prohibiting prostitution, following which he was transferred to patrol duty. The proximity of Maimone's complaints regarding the City's alleged failure could support an inference that those complaints were the reason for his transfer. (pp. 19-23)

5. Maimone only seeks to avail himself of the judicial remedies provided by CEPA for the adverse employment action taken against him for objecting to the police department's alleged policy decision. Maimone's claim does not rest simply on his personal disagreement with this policy decision, but on an objectively reasonable belief that it is "incompatible with a clear mandate of public policy concerning the public health, safety or welfare[.]" Therefore, this Court's recognition of Maimone's right to pursue this claim before a jury is mandated by the State legislative policy expressed in CEPA to protect employee whistle-blowing activity. (pp. 23-24)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, concluding that the trial court's judgment was well-reasoned, and the majority's opinion appears to graft a new limitation on the discretionary governance prerogatives of an employer.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, and ALBIN join in JUDGE SKILLMAN's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion. JUSTICE WALLACE did not participate.

The opinion of the court was delivered by: Judge Skillman (temporarily assigned)

Argued March 6, 2006

This appeal involves a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by a police officer who alleges he was transferred from detective to patrolman in retaliation for his objections to the Chief of Police's decision to terminate enforcement of provisions of the Code of Criminal Justice prohibiting promotion of prostitution and restricting the location of sexually-oriented businesses.

I.

Plaintiff Angelo Maimone has been a member of the Atlantic City Police Department since 1988. He was transferred in 1991 from a patrolman position to detective in the Special Investigations Unit. As a result, plaintiff became contractually entitled after one year to receive an additional 3% of his base salary. Beginning in 1993, plaintiff was assigned to conduct investigations of prostitution and other sexually-related offenses, which he continued to do until early 2001.

In May 2000, defendant Arthur C. Snellbaker was appointed Chief of the Atlantic City Police Department. According to plaintiff, around eight months after Snellbaker's appointment, Captain William Glass told him at a staff meeting that he could not initiate any new promotion of prostitution investigations unless they "directly impacted the citizens of Atlantic City." Shortly thereafter, plaintiff's immediate supervisor, Sergeant Glenn Abrams, directed him to terminate all pending investigations into the promotion of prostitution and to conduct only narcotics investigations. Plaintiff alleges that Abrams told him that "they," referring to prostitution investigations, "don't exist." Plaintiff, who at that point was the only detective still actively involved in promotion of prostitution investigations, understood this directive to apply not only to him but also to all other officers in the Special Investigations Unit.

Around the same time Abrams gave plaintiff this directive, the files plaintiff had maintained regarding persons involved in the promotion of prostitution were removed from a filing cabinet under his control, and thereafter, plaintiff's access to those files was restricted. When plaintiff complained to Abrams about his loss of access to these files, Abrams allegedly told him: "You're never going to see the files again."

On April 6, 2001, plaintiff sent a memorandum to Sergeant Abrams regarding his inability to gain access to those files, which stated in part:

Late this past year I was advised that Sgt. Coholan of the Chiefs of Police Office seized a filing cabinet from the Special Investigations Office. This filing cabinet contained numerical prostitute background files in two drawers. The other two drawers contained Escort Service/Massage Service as well as pimp intelligence files. (Many of these files contain sensitive material.)

I was advised that if I needed to see these files, the new procedure was that I was to report during the day to the Chiefs Office. I was to log in and out of a secure file room, which I complied with. I was then advised that the files were moved again and only told the lawyers had them.

As part of my duties I routinely update files on Escort and Massage services working in Atlantic City. I noted at least seven new services operating this month alone. I have no file space for these new files nor do I have any means of ...


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