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D. Timothy Roberts v. the Borough of North Arlington

January 13, 2012

D. TIMOTHY ROBERTS, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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