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Peck v. County of Ocean


July 19, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4128-09.

Per curiam.


Argued June 7, 2010

Before Judges R. B. Coleman and Alvarez.

Plaintiff Robert Peck appeals the October 14, 2009 grant of summary judgment to defendant Ocean County. For the reasons that follow, we affirm.

Plaintiff filed a complaint on January 14, 2008, alleging breach of contract and promissory estoppel. After defendant filed its answer, the parties engaged in discovery, including the depositions of plaintiff, of Ocean County Prosecutor Marlene Lynch-Ford (Ford), and of Chief of Investigators Charles Kuyl (Kuyl). Defendant's motion for summary judgment was decided on October 9, 2009.

Plaintiff was employed by the Ocean County Prosecutor's Office for approximately twenty-four years. He was promoted to the position of Captain in the late 1990's or early in 2000, and was made a Deputy Chief Investigator in 2005 or 2006. Ford was sworn in as defendant's County Prosecutor on June 27, 2007, and Kuyl was subsequently sworn in as defendant's Chief of Investigators on August 1, 2007.

Once in office, Ford reviewed positions within the Prosecutor's Office and determined that plaintiff would be replaced. She specifically discussed plaintiff's status with Kuyl, including whether to demote him from Deputy Chief Investigator to the rank of Captain.

On August 6, 2007, Kuyl met with plaintiff and reviewed the options of retirement or demotion. Plaintiff, who was desirous of attaining thirty years of continuous employment because of the enhanced financial benefits that would result, told Kuyl he wanted some time to consider his choices. According to plaintiff, Kuyl offered him the demotion while leaving open the possibility that plaintiff could retain his significantly higher salary as a Deputy Chief Investigator. The two men discussed a past circumstance in which a Deputy Chief Investigator had been allowed to retain her higher salary even though she was demoted to Captain by an incoming Prosecutor. When deposed, Kuyl said that he recalled telling plaintiff that if in the past people had been allowed to retain their salaries after demotion, the same benefit might be extended to him. Kuyl also acknowledged it was a mistake for him to have discussed salary with plaintiff, because Ford had not authorized him to do so.

On August 8, 2007, Kuyl approached plaintiff and asked if he had reached a decision. Plaintiff said he wanted to stay and would provide Kuyl with a written response. Plaintiff on August 10, 2007, composed a letter to Kuyl accepting the demotion subject to the retention of his salary as a Deputy Chief Investigator. He and Ford discussed his job status that same day.

According to Ford, when she explained to plaintiff that he could not retain his salary if demoted, and that Kuyl did not have the authority to make such an offer to him, he became "upset" and asked her, "[w]hat have I ever done to you?" As a result, she decided to terminate plaintiff's employment effective November 1, 2007. Plaintiff had actually previously filed retirement papers effective May 2008. After the meeting with Ford, he amended his retirement paperwork to make October 31 his last day of work.

The motion court granted summary judgment based on N.J.S.A. 2A:157-10.1, which provides that although other County Prosecutor investigators enjoy unclassified civil service protection, the Chief Investigator and Deputy Chief Investigator may be removed or demoted by the Prosecutor at will. The judge further noted that questions regarding "the hiring and firing prerogatives of a county prosecutor have uniformly been resolved in favor of the prosecutor." Golden v. County of Union, 163 N.J. 420, 427 (2000). Because Ford had the statutory authority to make decisions regarding plaintiff's employment status and the Prosecutor had merely exercised her statutory prerogative in terminating plaintiff, there was no genuine issue as to any material fact and, as a matter of law, defendant was entitled to judgment.

We review the grant of summary judgment employing the same analysis engaged in the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted when the moving party can prove "that... no genuine issue" exists "as to any material fact challenged and that the moving party is entitled to a judgment... as a matter of law." R. 4:46-2(c). So long as no genuine issue of material fact exists and the trial court properly applied the law, the decision will be affirmed. Prudential Prop. & Cas. Ins. Co., supra, 307 N.J. Super. at 167.

Plaintiff asserts in his brief that the trial court erroneously concluded that N.J.S.A. 2A:157-10.1 gave Ford the authority to decide plaintiff's employment status. In oral argument before us, however, plaintiff expressly acknowledged that the statute gives the Prosecutor carte blanche to dismiss Deputy Chief Investigators. The terms and conditions of public employment are created by statute; therefore, the language contained in the statute "take[s] precedence over any side agreement in contravention of the statute." Merlino v. Borough of Midland Park, 172 N.J. 1, 8 (2002).

It is undisputed that at the time of the termination, Ford was the County Prosecutor and plaintiff was a Deputy Chief Investigator included within the purview of N.J.S.A. 2A:157-10.1. Ford unquestionably had the power to terminate plaintiff and the trial court's grant of summary judgment was correct under this theory.

Plaintiff contends nonetheless that Kuyl's offer created a binding oral contract because Kuyl was acting under the apparent authority to make the promise. Furthermore, plaintiff contends, once the offer was accepted, he enjoyed civil service protection and could not be terminated at will. Alternatively, plaintiff asserts that the doctrine of promissory estoppel barred Ford from terminating him.

We find no merit, however, to plaintiff's argument that Kuyl was acting under actual or apparent authority as Ford's agent. A person's actions cannot bind another unless he or she is acting as the other's agent. See Restatement (Second) of Agency § 1 comment a (1957). Although Kuyl was authorized to talk to plaintiff about a demotion to Captain, he never had the authority to make a commitment to plaintiff about his salary. Both Ford's and Kuyl's deposition testimony makes that clear.

Plaintiff asserts that since Kuyl was acting as the apparent agent of Ford, Kuyl effectively entered into a binding oral employment contract with him. He maintains that Kuyl held himself out as having this authority but provides no actual evidence that defendant or Ford held Kuyl out as Ford's agent. Even viewing his description of his meeting with Kuyl in the most favorable light, Kuyl did not sound like a person doing other than engaging in a preliminary discussion regarding a change in plaintiff's position. Plaintiff is really asserting that he was justified in presuming that Kuyl had the authority to speak for Ford, but he points to no circumstance establishing that the presumption was warranted.

Plaintiff also asserts that once he told Kuyl he wished to accept the demotion to the position of Captain at the salary of a Deputy Chief Investigator, he acquired the civil service protection of an unclassified civil servant pursuant to N.J.S.A. 2A:157-10. This argument makes no sense. If, as we find, Kuyl had no authority to enter into an employment contract with plaintiff, no civil service protection was created because no contract was created. It would not be logical for us to enforce protection for plaintiff that Kuyl never had the authority to grant.

Plaintiff's contention that the grant of summary judgment to defendant was barred by the doctrine of promissory estoppel lacks merit. That doctrine "requires that plaintiff prove that

(1) there was 'a clear and definite promise'; (2) the promise was 'made with the expectation that the promisee will rely on it' (3) 'the promisee must reasonably rely on the promise,' and (4) 'the promisee must incur a detriment in reliance thereon.'" Peck v. Imedia, Inc. 293 N.J. Super. 151, 165 (App. Div.), certif. denied, 147 N.J. 262 (1996) (citations omitted). The detriment must be "definite and substantial" in nature. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 499 (App. Div. 2003) (citing Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App. Div. 1978)).

Plaintiff claims that he detrimentally relied upon the offer of continued employment by virtue of his acceptance of a lower rank. That in no way constitutes detrimental reliance as envisioned by the doctrine. Plaintiff suffered no change in position as a result of his discussion with Kuyl. If anything, plaintiff seems to be alleging that a future loss will occur as a result of not being extended future employment at his prior salary. Non-receipt of future benefits cannot be considered a detriment incurred in reliance upon an offer. See Peck, supra, 293 N.J. Super. at 165-67 (allowing plaintiff to proceed under a theory of promissory estoppel upon remand because she "gave up her business and clients in Boston and sustained losses in moving to New Jersey in reliance on" a job offer). Because plaintiff has not identified a detriment suffered as a result of Kuyl's offer, the doctrine of promissory estoppel is inapplicable and does not bar the award of summary judgment.

In the final analysis, at the time of the termination, plaintiff was a Deputy Chief Investigator subject to the nearly absolute at-will statutory authority of the County Prosecutor. As the motion judge phrased it, the grant of summary judgment was appropriate because the Prosecutor had the legal authority to terminate plaintiff, and plaintiff's purported reliance upon his conversations with Kuyl could not prevent Ford's exercise of that authority.



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