January 13, 2012
D. TIMOTHY ROBERTS, PLAINTIFF-APPELLANT,
THE BOROUGH OF NORTH ARLINGTON; PETER MASSA, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; STEVE TANELLI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JAMES FERRIERO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; MARK YAMPAGLIA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; ALBERT GRANELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; PHILIP SPANOLA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND SAL DIBLASI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOINTLY, SEVERELY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11050-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2011
Before Judges Espinosa and Kennedy.
D. Timothy Roberts (Roberts) appeals from an order entered on January 21, 2011, granting a motion for summary judgment dismissing plaintiff's complaint against the Borough of North Arlington, its Mayor and several present and former council members [hereinafter collectively referred to as "The Borough"]. We affirm essentially for the reasons set forth by Judge Robert
C. Wilson in his cogent and well-reasoned written opinion and we add only the following brief comments.
On June 1, 2005, Roberts was appointed as Borough Administrator, Chief Financial Officer (CFO) and Purchasing Agent of North Arlington. On January 1, 2007, plaintiff was appointed as the Acting Borough Clerk in North Arlington, as well.
On July 7, 2007, Roberts was stopped by Montgomery Township police and charged with driving while intoxicated, contrary to N.J.S.A. 39:4-50. A search of his vehicle revealed a marijuana cigarette in plain view and two cigarette boxes containing fifty-nine marijuana cigarettes in one box and six in the other. Consequently, in addition to being charged with driving while intoxicated, Roberts was charged with having a controlled dangerous substance in a motor vehicle, contrary to N.J.S.A. 39:4-49.1, possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(4), and a traffic offense.
On July 13, 2007, the Mayor of North Arlington and the borough attorney met with Roberts and the Mayor at that time requested Roberts to retire. Thereafter, on July 17, 2007, the Borough forwarded a notice to plaintiff pursuant to Rice v. Union Cnty. Reg'l. High Sch. Bd. of Educ., 155 N.J. Super. 64 (App. Div. 1977), certif. den., 76 N.J. 238 (1978), advising him with respect to a meeting with the Mayor and Council scheduled for July 18, 2007. The notice stated that the Mayor and Council "may have a discussion which would negatively impact the terms and conditions of [Roberts'] employment with the Borough based upon [Roberts'] recent incident . . . ." Plaintiff engaged counsel and appeared before the Mayor and Council where he was given an opportunity to address the concerns raised in the Rice notice. The Mayor and Council then unanimously voted to terminate plaintiff from all of his positions effective immediately.
On July 16, 2009, Roberts filed a complaint against North Arlington, its Mayor and several present and former council-persons alleging that he was wrongfully terminated; that his termination was done without "reasonable notice"; and that his termination was undertaken "strictly for political and personal reasons" constituting "willful, wanton and malicious conduct."
The Borough subsequently moved for summary judgment contending that because Roberts was not tenured in any of his positions, he was an "at will" employee and could not demonstrate that his discharge was contrary to a "clear mandate of public policy" as required by Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). Moreover, the Borough maintained that Roberts was afforded proper notice pursuant to the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, and Rice, supra, and that there was no evidence that the Borough acted with any evil motive or intent.
Roberts contended that he was tenured in his position of CFO and was entitled to statutory protections; that the Rice notice he received violated his "due process rights"; and that the termination was undertaken for political reasons.
In addressing Roberts' initial contention that he was tenured in his position as CFO, Judge Wilson reasoned as follows:
Pursuant to New Jersey law, when employment is for an indefinite term, the prevailing rule is "employment at will." See Tripoldi v. Johnson & Johnson, 877 F. Supp. 233, 237 (D.N.J. 1995). Plaintiff's positions as Borough Administrator, Purchasing Agent and Acting Borough Clerk were at will. In this instant motion, the parties only disputed whether the position of CFO was at will or whether plaintiff was tenured.
The position of CFO is governed by N.J.S.A. 40A:9-140.2 to N.J.S.A. 40A:9-140.16 and is a four year appointment. See N.J.S.A. 40A:9-140.10. Plaintiff asserts that N.J.S.A. 40A:-140.8 provides for removal only for just cause. However, that provision is only applicable to those individuals who have tenure, that is, it is only applicable to those individuals who have served for four consecutive years and are subsequently reappointed as CFO.
Judge Wilson was correct in so finding. N.J.S.A. 40A:9-140.8, provides in pertinent part that "any person who has served as the chief financial officer of a municipality for four consecutive years and who is reappointed as that municipality's chief financial officer shall be granted tenure of office . . . ." (emphasis added). Here, plaintiff was appointed CFO on June 1, 2005, and was removed on July 18, 2007. Consequently, he did not serve four consecutive years and he was not reappointed. Therefore, he was an "at will" employee in his position of CFO.
As an "at will" employee, Roberts must show that his discharge was contrary to a clear mandate of public policy to sustain a wrongful termination claim. Pierce, supra, 84 N.J. at 72 ("unless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause"). Roberts does not articulate any clear mandate of public policy which, as a matter of law, would support his cause of action for wrongful termination.
With respect to the claim that the notice deprived him of due process, Judge Wilson explained:
Prior to a public body's discussion of any "matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any . . . employee," a Rice notice is required to allow the employee to request a public discussion of the same. See N.J.S.A. 10:4-12(b) and Rice, 155 N.J. at 73. Here, plaintiff was provided notice and had an opportunity to respond. Neither plaintiff nor his attorney objected to the notice provided by the Borough.
Citing N.J.S.A. 10:4-15(a), which provides that any action taken by a public body not conforming with provisions of the OPMA, shall be voidable in an action in lieu of prerogative writ which may be brought by any person within forty-five days after the non-conforming action, Judge Wilson noted that "plaintiff did not act within the requisite forty-five days in a proceeding in lieu of prerogative writ, and therefore is precluded from asserting lack of reasonable notice." We concur and add that Roberts never asked for more time to address the issue raised in the Rice notice and points to no particularized prejudice because of the time of the notice.
Finally, Roberts asserts that the Borough acted out of fear of political repercussions from the public if it did not discharge him. However, Roberts offered no support for this argument and we find it to lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).
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