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Marzarella v. Ocean County Board of Chosen Freeholders


March 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5216-06.

Per curiam.


Argued January 28, 2008

Before Judges Lintner and Sabatino.

This negligence case, brought against several public entities and a public employee, arises out of a delay in the rehiring of plaintiff as an assistant county prosecutor. As a result of the delay, plaintiff missed the opportunity to be eligible for certain enhanced pension benefits. The Law Division granted defendants summary judgment pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Plaintiff appeals, and we affirm.

Plaintiff, Samuel J. Marzarella, was admitted to the New Jersey bar in 1985. From September 1985 through December 1991, plaintiff served as an assistant prosecutor in the Ocean County Prosecutor's Office ("the Prosecutor's Office"). Following those six years as a prosecutor, plaintiff engaged in the private practice of law, initially as a solo practitioner and then with a small law firm that he joined in 2000. Plaintiff also has taught for several years at Ocean County College.

In 2001 plaintiff became interested in rejoining the Prosecutor's Office. Toward that end, plaintiff was interviewed on June 27, 2001 by E. David Millard, who was then the Ocean County Prosecutor.*fn1 At the end of the interview, Millard told plaintiff that he wanted to rehire him as an assistant prosecutor. Plaintiff told Millard on the spot that he would accept that position.

According to plaintiff's complaint, he was not specifically advised during his job interview that his rehiring was subject to a vacancy arising in the Prosecutor's Office, or, alternatively, subject to the Ocean County Board of Chosen Freeholders ("the Freeholders") approving the creation of a new Drug Court program in Ocean County and funding additional prosecutor slots for that program. Although defendants have not admitted these contentions, we accept them as true for purposes of the appeal of summary judgment dismissing plaintiff's claims. See R. 4:46-2.

The following week, plaintiff resigned from his law firm, in anticipation of resuming his career as a prosecutor. Plaintiff also submitted to background checks required for his reappointment. Plaintiff met with Millard again on July 31, 2001, and they discussed a swearing-in ceremony tentatively contemplated for August or September 2001.

As part of the paperwork needed to rehire plaintiff, Millard signed and transmitted a personnel action request form to the County's employee relations office. The form, which is undated, reflects that plaintiff was to be rehired as a supervising assistant prosecutor, at a requested salary of $68,582. The form specified a requested effective date of appointment of October 15, 2001.*fn2 The section of the form calling for a specification of whether the appointment was to replace a departing employee, or to fill a new position approved in the budget, was left blank.

For reasons that are not entirely clear from the record, plaintiff's rehiring stalled for several months.*fn3 Meanwhile, in early January 2002, Millard resigned as County Prosecutor to assume his judicial duties. Millard's successor, Prosecutor Thomas Kelaher, signed and submitted a new personnel action form for plaintiff on January 28, 2002. This form, unlike the preceding form signed by Millard, specified that plaintiff would be a new hire resulting from the creation of the Drug Court. The form listed a salary of $70,500, slightly higher than the salary reflected on the original personnel form. The form requested an effective hire date of March 25, 2002. Plaintiff accordingly was sworn in as an assistant prosecutor on March 25, 2002.

In the meantime, the Legislature coincidentally enacted a statutory amendment on January 7, 2002, L. 2001, c. 366, creating a new Prosecutors Part within the Public Employees' Retirement System ("PERS"). See N.J.S.A. 43:15A-155 to -161. The amended statute, which became effective on the same date it was enacted, enhances the pension benefits of certain law enforcement personnel statewide, including prosecutors and assistant prosecutors, above the regular benefits provided to PERS retirees.

Plaintiff has sought to take advantage of the amended statute by attempting to transfer his accrued thirteen-and-a-half years in the PERS system, arising from his prior government service as an assistant prosecutor and college instructor, to the new Prosecutors Part program. To date, however, plaintiff has been unsuccessful in doing so, by virtue of regulations adopted by the State Division of Pensions on June 21, 2004, N.J.A.C. 17:2-8.1 to -8.16 (amended in part 2007). The regulations limit eligibility for the transfer of accrued time in the PERS system to the Prosecutors Part to persons who were employed in prosecutor's offices or other specified law enforcement titles as of January 7, 2002, the date that the legislation was enacted. Because plaintiff was not employed as an assistant prosecutor on that date, the Division of Pensions has denied his request to transfer his prior time.*fn4

On September 13, 2004, plaintiff served a tort claims notice on Millard, the Prosecutor's Office, the Freeholders and the State of New Jersey, alleging that the delay in his rehiring caused him to lose the opportunity to transfer his years of prior PERS service and thereby receive an enhanced pension in the Prosecutors Part. Thereafter, on July 3, 2006, plaintiff filed a complaint in the Law Division against the Freeholders, the Prosecutors' Office, Millard (collectively, "the County defendants"), the PERS Board of Trustees, and unspecified fictitious defendants. The complaint, as amended, alleges that the County defendants unreasonably delayed in effectuating his appointment and swearing-in ceremony, causing him to sustain compensatory damages consisting of "retroactive lost []wages and future enhanced pension benefits." The complaint also alleged detrimental reliance and estoppel.

After being served with the complaint, the County defendants moved for dismissal under R. 4:6-2(e) for failure to assert a cause of action. In particular, the County defendants argued that the delay in plaintiff's rehiring was immunized under the Tort Claims Act, and also that plaintiff's tort claims notice was untimely. At the ensuing motion argument, the Law Division judge treated the County defendants' applications as motions for summary judgment because they involved certain matters outside the pleadings. Meanwhile, plaintiff entered into a Consent Order with the PERS Board of Trustees. The Consent Order dismissed plaintiff's claims against that defendant in the Law Division, while permitting him to "pursue all administrative remedies available before the Board of Trustees," including an appeal in accordance with N.J.A.C. 17:1-1.3.

The motion judge granted the County defendants summary judgment, on both procedural and substantive grounds, pursuant to the Tort Claims Act. Plaintiff has appealed that determination. He argues that his tort claims notice in September 2004 was indeed timely because it was filed within ninety days of the June 2004 adoption of the PERS regulation disallowing his transfer of prior service time to the Prosecutors Part pension. He also contends that the failure of the County defendants to effectuate his rehiring was palpably unreasonable and not insulated from liability under the Tort Claims Act.

As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under R. 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill

v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Although the nine-month delay in accomplishing plaintiff's rehiring was not inconsequential, and we can surely appreciate his disappointment in apparently losing a chance to transfer his prior service credits to an enhanced pension program and the resulting financial impact upon him and his family, we agree with the motion judge that his claims for money damages against the County defendants simply are not cognizable as a matter of substantive law. While it is not necessary to our analysis, we also concur with the motion judge that plaintiff's tort claims notice was not timely served.

The appointment of an assistant county prosecutor involves two decision-making units within County government. The County's governing body, here the Board of Freeholders, decides whether or not to fund the position, and the Prosecutor selects the lawyer to fill the position. Both decisions necessarily involve considerable discretion, whether it be fiscal or managerial in nature. The Tort Claims Act insulates those discretionary decisions from being second-guessed by jurors or judges in a negligence action.*fn5

With respect to defendant Millard in his former role as Prosecutor, N.J.S.A. 59:3-2(a) instructs that "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him." More specifically, subsection (c) of that same provision declares that:

A public employee is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services. [N.J.S.A. 59:3-2(c) (emphasis added).]

As reflected in the Comments to the 1972 Task Force of the Attorney General concerning the proposed Tort Claims Act, Section 3-2 was "intended to codify the existing law in the State of New Jersey which immunizes a public employee for the exercise of discretion within the scope of his [or her] duties." Margolis and Novack, Claims Against Public Entities (Gann, 2007), 1972 Task Force Comment on N.J.S.A. 59:3-2. Here, the manner and timing by which Millard chose to rehire plaintiff as one of his assistants, and to have plaintiff added to his department's payroll, clearly implicated matters of discretion in the hiring of personnel. Such actions and inactions have been insulated from suit by the Legislature under both N.J.S.A. 59:3-2(a) and (c).*fn6 Consequently, Millard was entitled to summary judgment as a matter of law.*fn7

With respect to the Board of Freeholders and the Prosecutor's Office, those public entities are likewise protected under the Tort Claims Act for their role in plaintiff's appointment process. N.J.S.A. 59:2-3(a), which mirrors N.J.S.A. 59:3-2(a), provides that "[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." N.J.S.A. 59:2-3(a). Further, N.J.S.A. 59:2-3(c), which mirrors N.J.S.A. 59:3-2(c), immunizes a public entity "for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for . . . the hiring of personnel." N.J.S.A. 59:2-3(c). The 1972 Task Force describes such decisions on whether to provide appropriations for personnel as "another example of high-level decision[-]making reserved to . . . the legislative branch of the public entity." Margolis and Novack, Claims Against Public Entities (Gann, 2007), 1972 Task Force Comment on N.J.S.A. 59:2-3. Whether the Freeholders failed to act on plaintiff's reappointment because they hesitated on funding the Drug Court, or for some other fiscal or administrative reason, their discretionary prerogatives have been placed by the Legislature beyond the purview of tort liability. See Massaker v. Petraitis, 173 N.J. Super. 459, 465 (App. Div. 1980) (immunizing the State for a failure to hire additional case docketing personnel).

As with defendant Millard, the public entity defendants are not exposed to suit under an "allocation of resources" theory, as they have not presented facts triggering that defense and its partial exception for palpably unreasonable conduct. See N.J.S.A. 59:2-3(d). As we observed in Lopez v. City of Elizabeth, 245 N.J. Super. 153, 158 (App. Div. 1991):

There is a real difference between the public entity immunities of N.J.S.A. 59:2-3c and 2-3d. The former typically involves decisions whether or not to hire people or procure material or equipment. Such decisions are made at a relatively high level of government and have traditionally been free of tort liability. The latter are lower level operational decisions how to deploy resources that are on hand. [Ibid.]

Hence, the public entities in this case have no tort liability for the delay in hiring plaintiff.*fn8

Even if the County defendants were not immunized under the Act, we concur with the motion judge that plaintiff's Tort Claims Act notice, which he served in September 2004, was untimely in complaining about the defendants' failure to hire him before January 2002. See N.J.S.A. 59:8-8. Although plaintiff may not have known until June 2004 that the State would not let him transfer his prior PERS time to the Prosecutors Part pension, he surely knew in late 2001 and early 2002 that he was losing income while he was awaiting his appointment and was unemployed. See Beauchamp v. Amedio, 164 N.J. 111, 118-19 (2000). The fact that plaintiff voluntarily dismissed his back pay claims at the motion argument does not cure his untimely failure to serve a notice within ninety days of the conduct at issue.


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