On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3814-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Plaintiff Antonio Rivera appeals from a May 28, 2010 Law Division order that denied his motion to enforce litigant's rights. In the motion, he sought to compel defendants, Pablo Munoz and Rafael J. Fajardo, to indemnify the Elizabeth Board of Education (Board) for legal expenses the Board incurred in improperly instituting a defamation lawsuit on behalf of the Board, Munoz and Fajardo. We agree with plaintiff's contention that the judge erred in deferring to the primary jurisdiction of defendant, the Commissioner of the New Jersey Department of Education (DOE). We therefore reverse the order of May 28, 2010, and remand to the Law Division for a determination of whether defendants Munoz and Fajardo should be ordered to provide the indemnification that plaintiff seeks.
In the spring of 2006, defendant Munoz was the Acting Superintendent of Schools for the Elizabeth public school system, and defendant Fajardo was the President of the Elizabeth Board of Education. Fajardo also owned and operated a construction company. During the days leading up to the June 6, 2006 primary election for City Council, three documents were mailed to City residents. The first was a letter, purportedly written and signed by defendant Munoz. The letter directed Fajardo to "inspire parents to commit to putting up political signs in support of our Hispanic candidates" so that the "Hispanics [will] come out and vote for our candidate and . . . ensure a low turnout of the [I]talian vote." The letter was not, in fact, approved, authored or signed by Munoz.
The second was a two-page flier containing pictures of defendants Fajardo and Munoz, and labeling them the "Army of the Undercover Republicans." The flier stated, "The Army of the Undercover Republicans are getting richer at the expense of taxpayers and the youth of our City"; and "[w]hy does an owner of a construction company want more construction of schools when the proficiency level in math and science are not focused on?"
The third document was a flier accusing defendant Fajardo of providing money and support to Lester Dominguez, a candidate for City Council, by improperly and illegally diverting money and resources from the Board to contribute to the candidacy of Dominguez.
On June 30, 2006, the Board, Munoz and Fajardo jointly filed an action against unnamed John and Jane Doe defendants alleging defamation, malicious misrepresentation, invasion of privacy, intentional infliction of emotional distress and violation of campaign advertising laws (the defamation action).*fn1
As part of the Board's investigation of the unidentified, fictitious defendants, the Board, Munoz and Fajardo issued subpoenas to individuals known to have provided campaign assistance to their political opponents. Among those political opponents was plaintiff Rivera.
On September 18, 2006, defendant, Lucille E. Davy, Acting Commissioner of DOE, requested information from the Board, Munoz and Fajardo to determine whether the Board was entitled to spend school funds on the pursuit of the defamation lawsuit. Shortly thereafter, on October 26, 2006, plaintiff filed the within action seeking, among other measures, injunctive relief prohibiting the Board, Munoz and Fajardo from continuing with the defamation lawsuit. As a preliminary measure, on November 3, 2006, the court granted plaintiff's motion to quash the subpoena issued by defendants. Nearly four months later, on February 26, 2007, the judge issued a temporary injunction, enjoining the Board from continuing to use school funds to pursue the defamation lawsuit.
Through an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request, plaintiff learned that the Board had never adopted a resolution authorizing the filing of the defamation lawsuit, or approving the expenditure of school district funds to maintain the lawsuit. Through his OPRA request, plaintiff also learned that the Board had expended $64,369 in legal fees paid to McCarter & English in connection with the lawsuit.
On July 19, 2007, DOE released an audit prepared by its Office of Fiscal Accountability and Compliance (OFAC), notifying the Board of its conclusion that the expenditure of public funds for the lawsuit was improper and "inappropriate." OFAC calculated that approximately eighty percent of the legal fee paid to McCarter & English had come from grants provided by DOE. DOE notified the Board it was therefore deducting that amount, $52,049, from the State aid to be provided to the Board in ...