On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4128-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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] ...