On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-990-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Messano, Yannotti and Espinosa.
Plaintiff Peter F. Ryerson (Ryerson) appeals from an order entered by the Law Division on September 10, 2010, granting summary judgment in favor of defendant State of New Jersey. For the reasons that follow, we vacate the September 10, 2010, order and remand the matter to the trial court for entry of a judgment dismissing the complaint with prejudice.
This matter arises from the following facts. In 1998, Governor Christine Todd Whitman appointed Ryerson as Superintendent of Elections and Commissioner of Registration for the County of Passaic (County). In 2001, Laurence Russo (Russo), the former Deputy Superintendent of Elections and Deputy Commissioner of Registration for Passaic County, and William Villari (Villari), a former investigator in the Office of the Commissioner of Elections for Passaic County, each brought suit in the United States District Court for the District of New Jersey, asserting claims against Ryerson, the County, certain State personnel, departments and agencies.
In their federal lawsuits, Russo and Villari alleged that Ryerson had engaged in certain acts of sexual harassment, created a hostile work environment and took various retaliatory acts in violation of federal and state law. The District Court consolidated the actions, and Ryerson retained his own attorney to defend himself in those matters. In February 2006, the District Court granted a motion for summary judgment by the State defendants, granted in part and denied in part a motion for summary judgment by the County, and denied Ryerson's motion for summary judgment.
On May 31, 2006, the County and the County's Board of Chosen Freeholders filed an action in the Law Division against the State seeking contribution and indemnification for any amounts, including attorneys' fees and costs, they would be required to pay as a result of the Russo/Villari lawsuits. In August 2006, Ryerson intervened in the Law Division action and filed a complaint against the State seeking contribution and indemnification for any amounts, including attorneys' fees and costs, he would be required to pay as a result of the Russell/Villari lawsuits.
On January 26, 2007, Ryerson's attorney submitted to the Attorney General of New Jersey a request for reimbursement for the attorneys' fees and costs he had incurred in the federal actions. By letter dated March 13, 2007, Assistant Attorney General Stephanie A. Brand (Brand) advised Ryerson's attorney that his request was denied. Brand stated that the request was untimely; Ryerson was not an employee of the State for purposes of the Russo/Villani litigation; and his alleged conduct may amount to willful misconduct for which a defense and indemnification was not appropriate. Brand's letter stated that this was the Attorney General's final determination and any review of the decision must be by appeal to this court.
On May 4, 2007, Ryerson filed a notice of appeal seeking review of the Attorney General's March 13, 2007, determination. On June 13, 2007, the Attorney General filed a motion to dismiss the appeal because it had been brought beyond the time prescribed by Rule 2:4-1(b). Ryerson filed a cross-motion pursuant to Rule 2:4-4 seeking an extension of time within which an appeal may be taken.
By orders dated July 17, 2007, we denied Ryerson's cross-motion and granted the State's motion to dismiss the appeal. Ryerson sought review of our orders by filing a petition for certification with the Supreme Court of New Jersey. The Supreme Court entered an order on October 31, 2007, denying the petition. Cnty. of Passaic v. State of New Jersey, 192 N.J. 599 (2007).
In July 2008, the County, State and Ryerson executed and filed a voluntary stipulation dismissing the Law Division action without prejudice in light of the pending litigation in the Federal District Court. On March 9, 2009, a consent order and judgment was filed in the District Court resolving the Russo/Villani lawsuits. The judgment provided for payment of $760,000 to Russo and Villani in settlement of their claims, including the claims for counsel fees and costs, with the County responsible for paying $740,000 and Ryerson responsible for the balance.
Thereafter, on March 3, 2009, Ryerson commenced this action against the State in the Law Division. In his complaint, Ryerson alleged that he was a State employee acting in his official capacity with regard to the actions at issue in the Russo/Villani litigation. He alleged that he was entitled to indemnification and the cost of legal representation in those lawsuits. The State filed an answer denying liability. In June 2010, the State moved for summary judgment, and Ryerson filed a cross-motion seeking the same relief.
The trial court considered the motions on September 10, 2010. After hearing the arguments of counsel, the court placed its decision on the record. The court determined that, like a County prosecutor, a County Superintendent of Elections enjoys a "hybrid status" as a employee of both the County and the State. The court found that Ryerson was not entitled to defense and indemnification from the State pursuant to N.J.S.A. 59:10A-1 because the ...