The opinion of the court was delivered by: Hillman, District Judge
This case involves a long-running dispute between the defendant mayor and the plaintiff chief of police of the Borough of Woodlynne ultimately resulting in the elimination of the position of chief of police by the defendants followed by plaintiff's resignation. Plaintiff brought claims for violation of his first and fourteenth amendment rights pursuant to 42 U.S.C. § 1983, and for vition of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq. Defendants moved for summary judgment seeking dismissal of plaintiff's complaint in its entirety. For reasons explained below, defendants' motion is granted in part and denied in part.
Plaintiff John Ragan was hired in 1979 by the Borough of Woodlynne as a police officer. He was promoted to chief of police in 1986 and served in that position until June 1, 2004. Defendant Geraldo Fuentes*fn1 served on Council for the Borough of Woodlynne for ten years before being elected Mayor in November 2003. While on Council, Fuentes served as chairman of public safety and worked closely with Ragan. In that capacity, Ragan alleges that Fuentes instructed that a certain Hispanic candidate be placed in the next special police academy class. Ragan refused to follow the instruction. Also discussed while Fuentes served on Council was the idea to eliminate the Woodlynne chief of police position and merge the Woodlynne police department with the Collingswood police department.
Mayor Fuentes took office on January 1, 2004. Ragan alleges that on January 14, 2004, the Mayor requested that a specific Hispanic police officer be assigned two special functions. Ragan refused to make the assignment on the ground that it would raise issues of scheduling, seniority and overtime. On January 23, 2004, Ragan alleges that the Mayor met with a prosecutor and a lieutenant over a parking ticket issued to a Hispanic female. Ragan maintains that the Mayor instructed the lieutenant to dismiss the ticket. Ragan later approached the Mayor and told him he should not have instructed that the ticket be dismissed. The Mayor and Ragan also had a difference of opinion over the scheduling of officers. Ragan asserts that the Mayor sent memos on January 27, 2004, directly to the officers instructing them on when they could and could not leave town. Ragan addressed Council and the Mayor stating that such memos should not be distributed directly to the officers but should be brought to the attention of Ragan as chief of police. Mayor Fuentes disagreed and stated that he wanted Ragan to work two to three hours on street patrol. Ragan declined to do so on the ground that his administrative duties took up too much of his time to patrol the streets.
While disputes between the Mayor and Ragan were ongoing, the Borough solicitor was asked to review "certain issues relative to the demarcation of lines of authority between the Police Chief and the Borough." In response, the solicitor sent a twelve page letter dated February 6, 2004, to the Mayor and to members of Council regarding the duties of the police chief. The solicitor concluded: (1) that the Borough cannot order the chief of police to patrol since it would likely be a demotion in violation of the Tenure Act and the "Police Chiefs Responsibility Law"; (2) that the Borough can require periodic/monthly reports from the chief; and (3) that the Borough can curtail volunteer activities of the chief if they are interfering with official duties.
On March 11, 2004, a motion was passed by Borough Council, later passed as an ordinance on May 11, 2004, abolishing the position of chief of police, and creating the position of director of public safety/chief law enforcement officer. Under the ordinance the director/chief became responsible for the administrative duties of the police department. The effect of the ordinance was to retain Ragan as the highest ranking member of the police department without a decrease in compensation. However, his title changed from chief of police to lieutenant.
Following passage of the ordinance abolishing his position, Ragan submitted his resignation on May 14, 2004, effective June 1, 2004, and retired with full pension and benefits. Ragan maintains that he was not advised of his right to a hearing regarding his employment. Ragan denies that Mayor Fuentes was concerned about safety due to too few police patrolling the Borough, or that residents had complained to the Mayor about lack of police presence. Ragan also denies that the reason the Mayor presented the ordinance to Council creating the position of public safety director and eliminating the position of chief of police was in response to Ragan's being unable to patrol the streets due to his administrative duties.
Almost two years later on July 3, 2006, the entire Woodlynne Police Department was dissolved and taken over by the Collingswood Police Department. It is defendants' position that the decision to dissolve the department was made based on their concern for safety and financial responsibilities and the recognition that Collingswood had a bigger police force and could provide greater security.
Ragan filed a complaint alleging that defendants violated his right to free speech protected by the first amendment and violated his due process rights protected by the fourteenth amendment. Ragan also asserts that defendants violated CEPA and requests punitive damages. Defendants filed for summary judgment seeking to dismiss Ragan's complaint. Defendants' summary judgment motion is presently before the Court.
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
B. § 1983 Claim Against the Borough of Woodlynne
A municipality can be liable for claims brought pursuant to § 1983 if it is shown that a municipal policy or custom caused a constitutional injury. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993); Watson v. Abington Tp., 478 F.3d 144, 155 (3d Cir. 2007) (stating that liability for § 1983 must be founded upon evidence that the government supported a violation of constitutional rights) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691-95 (1978)). To state a claim under 42 U.S.C. § 1983, the plaintiff must show that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived him of his rights, privileges, or immunities secured by the Constitution or laws of the United States. See, e.g., Shuman ex rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005)(citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)).
There is no dispute that the ordinance passed by Council was an official policy of the Borough or that the Borough was acting under color of state law. Ragan alleges that in passing the ordinance the Borough denied him his right to free speech and due process in violation of the first and fourteenth amendments, respectively.
1. Protected Speech under First Amendment
In his opposition, Ragan "concedes that due to recent Supreme Court rulings he no longer has a viable claim under the First Amendment." Although Ragan does not cite to a case, defendants rely on Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006) for the proposition that if a public employee's speech is made pursuant to his official duties, such speech is not protected by the First Amendment. Defendants argue that Ragan's criticisms of the Mayor involving himself in the daily operations of the department and involving himself in investigations concerning Hispanic citizens were made pursuant to his official duties as chief of police. Ragan provides no opposition to defendants' argument on this issue. We find that Ragan's speech is not protected under the Constitution and grant defendants' motion to dismiss his § 1983 claim with regard to his First Amendment rights.
2. Due Process Claim Under Fourteenth Amendment
The parties do not dispute that Ragan as chief of police had a property interest in his continued employment protected by procedural due process considerations pursuant to the fourteenth amendment. See Perez v. Cucci, 725 F.Supp. 209, 241 (D.N.J. 1989)(stating that the Third Circuit recognizes that police officers have a property interest in their employment that implicates the procedural due process protections of the fourteenth amendment) (citing Gnioteck v. City of Phila., 808 F.2d 241, 244-46 (3d Cir. 1986), cert. denied, 481 U.S. 1050 (1987); Copeland v. Phila. Police Dept., 840 F.2d 1139, 1145 (3d Cir. 1988), cert. denied, 490 U.S. 1004 (1989)). The parties also do not dispute that Ragan retired on June 1, 2004. The presumption is that resignations and retirements are voluntary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). "If an employee retires of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights." Id. (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir. 1995)(stating "[i]f he resigned of his own free will even though prompted to do so by events set in motion by his employer, he relinquished his property interest voluntarily and thus cannot establish that the state 'deprived' him of it within the meaning of the due process clause.")(quoting Stone v. University of Md. Medical Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988)).*fn2
Although Ragan does not dispute that his retirement was voluntary, he argues that when Council passed the ordinance abolishing the position of chief of police, that act was a demotion and done in violation of his due process rights under the fourteenth amendment. Therefore, the issue before the Court is whether Ragan has a property right attendant to his position as chief of police sufficient to implicate due process protections under the fourteenth amendment.
Property rights are created by state law. See Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997) (citing Clark v. Township of Falls, 890 F.2d 611, 617 (3d Cir. 1989)). The state law implicated here is N.J.S.A. 40A:14-147, which states in part:
Except as otherwise provided by law, no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer. The complaint shall be filed in the office of the body, officer or officers having charge of the department or force wherein the complaint is made and a copy shall be served upon the member or officer so charged, with notice of a designated hearing thereon by the proper authorities, which shall be not less than 10 nor more than 30 days from date of service of the complaint.
The Superior Court of New Jersey interpreted the above statute in Quaglietta v. Borough of Haledon, 440 A.2d 82, 84 (N.J. Super. 1981). In Quaglietta, the governing body of the Borough of Haledon adopted an ordinance eliminating the position of chief of police and establishing the position of director of police. Prior to the enactment of that ordinance, Vincent Quaglietta was the chief of police of Haledon and exercised sole and complete control over the police department, subject only to the governing body and its police committee. Id.
The court in Quaglietta determined that N.J.S.A. 40A:14-147 was violated because the police chief was demoted. Id. (finding that portions of the ordinance pertaining to the director of police to be legally invalid). The court found that the ordinance took control of the police department from the chief of police and gave it to a police director. Id. Particularly, the court found that Chief Quaglietta, who had formerly headed up the department, would now be subject to "... the over-all control and direction of the proposed police director."
The facts in this case are similar to those in Quaglietta. Like Quaglietta, Ragan was the chief of police and by ordinance was stripped of that title and some of his former duties reassigned. Here, the Borough of Woodlynne passed an ordinance eliminating the position of chief of police and creating the position of "Director of Public Safety/Chief Law Enforcement Officer." The director/chief would be the head of the police department and would be "... responsible with the Appropriate Authority for the day-to-day operations of the police department generally." See Borough of Woodlynne Ordinance #7-2004. The language used in the ordinance suggests that control of the department would have been taken from Ragan and vested in the director/chief. Although defendants argue that the position of director/chief was "merely a civilian position created to work in concert with the police department, not to run the police department," the language of the ordinance clearly states that sections of the Borough's police department ordinance would be amended to "[d]elete all reference to the Chief of Police as the head of the police department" and to amend those sections to "... provide for a Director of Public Safety/Chief Law Enforcement Officer as the head of the police department... ." Also, Ragan's new title would have been lieutenant which suggests a demotion in rank as well. In addition, if it was intended that control of the ...