On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0342-03.
The opinion of the court was delivered by: Lyons, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Lyons.
Plaintiffs Grant Spinks, Robert Kovacs, and Michael Exley appeal from two orders entered on March 27, 2006, granting summary judgment to defendant The Township of Clinton (Clinton) and defendant Stephen Clancy (Clancy) dismissing plaintiffs' complaint in its entirety. Plaintiffs' complaint alleged retaliation by defendants in violation of plaintiffs' civil rights pursuant to 42 U.S.C.A. § 1983 and unlawful termination based upon age in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12. After a careful review of the contentions raised by plaintiffs, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Plaintiffs were police officers in Clinton. In 2001, the police department conducted an internal investigation based on complaints of malingering by some officers. The investigation revealed that several officers, including the three plaintiffs, had filed false time reports and had been idle when they claimed to be working. Clinton submitted that information to the county prosecutor, who filed criminal charges. In November 2001, plaintiffs pled guilty to falsifying documents, were admitted into a pre-trial intervention program, resigned their positions as police officers, and stipulated they would not work again in law enforcement in New Jersey.
In January 2000, plaintiffs and other PBA members had filed an unfair practice charge with the Public Employment Relations Commission (PERC) challenging the new promotional procedure adopted by Clancy in September 1999, which had resulted in some officers being promoted over plaintiffs, despite plaintiffs' greater seniority. Plaintiffs and three other officers also challenged the new procedure in a February 2000 Law Division complaint. The complaint contained three counts. In count one, the complaint alleged that the new promotional process allowed some less senior officers to be promoted over plaintiffs and contained inadequate standards to guide the selection process. Plaintiffs claimed that they were denied rights under the First, Fifth, and Fourteenth Amendments, and sought relief pursuant to 42 U.S.C.A. § 1983.
In count two, plaintiffs asserted that the new promotional process "was totally devoid of appropriate norms and standards," allowed defendants "unfettered discretion," and was so vague as to be "unintelligible and unenforceable." Plaintiffs again claimed violations of the First, Fifth, and Fourteenth Amendments, and sought relief pursuant to 42 U.S.C.A. § 1983.
In the third count of the complaint, plaintiffs complained that in a personnel order of September 16, 1999, the police department restricted all officers from posting or distributing any "unauthorized or unnecessary" documents on any "PBA maintained bulletin board" or in any mail slot used by the officers or PBA. That order, alleged plaintiffs, denied them their First Amendment freedom of speech, as well as their rights under 42 U.S.C.A. § 1983 and the First, Fourth, Fifth, and Fourteenth Amendments. In March 2000, the Law Division action was transferred to New Jersey Federal District Court.
In July 2000, the parties executed an Agreement and Release, by which plaintiffs agreed to dismiss with prejudice the pending PERC and District Court actions, and Clinton agreed to promote four of the complaining officers (including the plaintiffs here, Spinks, Kovacs, and Exley). In addition, the Agreement bound the parties to agree to accept the new collective bargaining agreement, covering 1999-2001, that had been negotiated and was awaiting approval.
In November 2000, as a result of complaints about the onthe-job conduct of patrol officers, Clancy ordered Sergeant Kuczynski (Kuczynski) of Internal Affairs to conduct a covert investigation. The complaints included "workplace harassment, stalking of an officer's wife, sexual liaisons by on-duty police officers, discontinued radio contact with officers, and idling of officers during certain shifts."
In preparation for the investigation, Kuczynski and Clancy met with the county prosecutor, Stephen Rubin (Rubin), to ask for permission to secretly install a global positioning device (GPS) in each patrol car. Rubin gave his permission. Kucyznski stated in his deposition that it was "[u]pon [Rubin's] order [that] the investigation commenced." Rubin ordered that all officers be monitored, not just the two against whom specific complaints had been made. The GPS unit was put in all cars, in random order, between May and August 2001. According to Kuczynski's investigation report, the prosecutor "was informed and assisted with support." In his deposition, Kuczynski explained that he gave all the data to Rubin, who decided on the criteria to be used to determine if criminal charges should be brought. Kuczynski elaborated as follows:
Immediately upon commencing with this investigation, Prosecutor Rubin, and every time I went to him with a report, indicated to me that the criteria if an officer was on location at any time during the entire eight-hour shift, it would not constitute in his mind falsification.
In other words, he was not going to prosecute an officer for sloppy record keeping, only on falsifications. So based upon that recommendation given to me numerous times, this officer, every officer was held to that standard and checked. And simply if there was any falsification or indication of falsification that was found on any officer, it was presented to Prosecutor Rubin. Prosecutor Rubin decided if he was going to exercise [sic] to prosecute this or refer to administrative issues.
He added: "All the prosecution decisions were made by the prosecutor and prosecutor's office."
Kuczynski presented all investigative reports to Rubin; Clancy never saw them. In his deposition, Clancy confirmed that he had no personal role in the investigation aside from his initial meeting with Rubin, and that he never reviewed the results obtained by Kuczynski. Clancy and Kuczynski were the only Township employees aware of the investigation.
The GPS generated reports of the location of each officer at a given time. The GPS device was placed in each car at least twice. Whenever "serious discrepancies" were found in an officer's reports and the GPS data, the GPS unit was put in that car again, in order to determine if there were a "pattern of conduct." The trial judge accepted, for the purposes of the summary judgment motion, that the reports showed "that all or many officers, not just plaintiffs, were engaged in idling behavior, and failed to report it, and that it had been condoned in the past by the Township."
In August 2001, Detective Tavener (Tavener) of the prosecutor's office was assigned to "oversee" the investigation, and he met with Kucyznski "many times" to discuss the case. His task was to review the data and prepare the case for the prosecutor. Tavener felt that the investigation had been done "correctly and fairly."
As a result of the investigation, plaintiffs and Officer Brown were charged with falsification of documents in September 2001. In October 2001, Officer Krejdovski (Krejdovski) was arrested and charged. Plaintiffs did not and do not deny the falsification, arguing instead that other officers did the same, but were not similarly charged.
Some of the officers implicated in the investigation, other than plaintiffs, retired or resigned, and one went to trial and was convicted by a jury of falsifying documents. Plaintiffs each pled guilty to one count of falsifying documents and, as required by the plea agreement, resigned from the police department, entered the Pretrial Intervention Program, and agreed not to work again in law enforcement in New Jersey. All three had resigned by November 9, 2001.
In 2004, plaintiffs filed a Law Division action contending that the 2001 investigation had been commenced in retaliation for plaintiffs' 2000 challenges. In plaintiffs' second amended complaint of January 2004, they alleged that they had been forced to resign as police officers in 2001 because of defendants' 1) allegations of misconduct by plaintiffs, which were in retaliation for plaintiffs' successful 2000 legal actions; and 2) discrimination against plaintiffs because of their age, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Named as defendants were Clinton, Clancy, who was the police chief, and two lieutenants (Wayne Weiss and Dwight Runyon). Both Weiss and Runyon were dismissed by stipulation before summary judgment was entered and take no part in this appeal.
Clinton and Clancy filed separate answers, denying the allegations and asserting affirmative defenses. In February 2006, after the completion of discovery, each defendant moved for summary judgment, and plaintiffs opposed the motions.
The motions were argued before Judge Peter A. Buchsbaum on March 17, 2006. In a written opinion on March 27, 2006, Judge Buchsbaum granted summary judgment to both defendants, ruling that Clancy was protected by virtue of qualified immunity and that Clinton was not liable under either cause of action. The trial judge entered orders on the same date. Plaintiffs filed a timely notice of appeal.
On appeal, plaintiffs present the following arguments for our consideration:
THE JUDGE ERRED IN FINDING THAT THE PROSECUTOR WAS RESPONSIBLE FOR THE ADVERSE EMPLOYMENT ACTION.
PLAINTIFFS' 42 U.S.C. SECTION ...