On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2040-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
Plaintiffs appeal from trial court orders dismissing their complaint and granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm, but for reasons other than those stated by the trial court.
Plaintiff Leonard Cipriano was a police officer with the Trenton Police Department from 1973 until his retirement in 2005. Defendant Joseph Santiago became the civilian director of the police department in 2003. In August 2005, Leonard Cipriano and his wife Kathleen filed a two-count complaint naming the City of Trenton, the Trenton Police Department and Joseph Santiago as defendants. In the first count, Leonard Cipriano alleged that defendants' actions had violated his rights under the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. In the second count, both Ciprianos sought damages for civil harassment.
In May 2006, the trial court granted partial summary judgment to defendants, dismissing portions of the first count as untimely. It denied defendants' motion to dismiss the second count for failure to file a notice of claim under the Tort Claims Act, N.J.S.A. 59:8-1 to -11. Thereafter, plaintiffs filed an amended complaint in September 2006 that alleged a constructive discharge, in violation of CEPA, and civil harassment. In December 2007, the trial court granted summary judgment to defendants, and this appeal followed.
During his career with the Trenton Police Department, plaintiff Leonard Cipriano was active with the Policemen's Benevolent Association ("PBA"); he became executive vice-president in 1994 and president a few years later.*fn1 Plaintiff and defendant Santiago had an acrimonious relationship from the outset. Plaintiff testified in his deposition that prior to Santiago's appointment as director of the police department, he had received one minor discipline, and that was early in his career. Plaintiff said that changed after Santiago became director.
Plaintiff had publicly opposed Santiago's appointment as the civilian director, as well as policies that Santiago sought to implement following his appointment. Plaintiff also publicly clashed with Santiago on issues regarding staffing and equipment.
There was also an issue with respect to Santiago's pension. Santiago had previously been on the police force in Newark. He had retired from that position and was collecting a pension based upon that prior service. Plaintiff contended that it was improper for Santiago to collect that pension at the same time that he was serving as the director of the Trenton Police Department.
Plaintiff, together with members of the PBA's executive board and officers of the Superior Officers' Association, also took these concerns to the county prosecutor and the Attorney General's office.*fn2 Santiago was aware of plaintiff's activities in this regard.
In addition, during the time that plaintiff served as president of the PBA, the union filed several unfair practice charges with respect to Santiago's efforts to re-structure and re-organize the police department. Santiago, by way of example, eliminated the position of deputy chief. He removed the three men who had previously held that title and assumed some of their duties himself.
Prior to Santiago becoming director of the department, the practice had been that the PBA president was permitted to spend one hundred percent of his time on union duties and was not required to perform regular police duties unless there was a particular staffing need. Santiago changed that policy after becoming director.
In December 2003, plaintiff received a disciplinary charge when he did not respond to the scene of a car accident when he was ordered to do so. There is evidence in the record that there was a significant snowfall on the date in question and some officers were delayed in reporting for work. The department was thus shorthanded when plaintiff was ordered to respond to the accident, which had occurred on a busy road and was affecting traffic. Plaintiff was in the PBA office at the time and did not promptly respond to the order but, rather, said he was ...