On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0201-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
Plaintiff Allyn C. Seel appeals from an order dated November 5, 2010, granting partial summary judgment in favor of defendants dismissing the second count of his complaint, which alleged that defendants violated his "civil rights as defined and protected by N.J.S.A. 10:6-2" by removing him as Emergency Management Coordinator for Atlantic City. We affirm.
On January 1, 2007, the Mayor of Atlantic City appointed plaintiff as the municipal Emergency Management Coordinator (EMC) pursuant to N.J.S.A. App. A:9-40.1, which is part of the Civilian Defense Act and Disaster Control Act (the Act). The Act provides that a duly appointed EMC shall serve a three-year term of office.
On December 8, 2008, defendant Lorenzo Langford, who began serving as Mayor of Atlantic City in November 2008, removed plaintiff as EMC and appointed him as deputy EMC at a lower salary. Langford then appointed another person as EMC eleven days later.
On January 14, 2009, plaintiff filed a two-count complaint against Langford and the City of Atlantic City. The first count alleged that by statute, only the New Jersey Governor may remove an EMC during the appointee's term of office, and that such removal must be for "cause." Plaintiff sought an order declaring that his termination by Langford was "null and void" and demanded various forms of relief. The second count asserted that plaintiff's 2007 appointment as EMC gave him a "property interest in the position" and that, by removing him from the position, the "[d]efendants did . . . intentionally and recklessly violate plaintiff's civil rights as defined and protected by N.J.S.A. 10:6-2(c)." Plaintiff sought an award of reasonable counsel fees pursuant to N.J.S.A. 10:6-2(f).
Plaintiff thereafter moved for summary judgment as to count one of the complaint. Defendants admitted that plaintiff was appointed as EMC in 2007 and removed by Langford in 2008, but argued that Langford, as the mayor of Atlantic City, was not precluded from replacing an EMC under the statute. Judge Valerie H. Armstrong, in a comprehensive and well-reasoned written opinion, concluded that
The object of the Civilian Defense Act is coordination and uniformity of response to a disaster. A municipal EMC's statutorily based "right to continue for the full term of his appointment" if the requisite coursework requirement is met, N.J.S.A. App. A:9-40.1, furthers this object by insulating the position from frequent political changes in a municipality. Nothing in the language and scheme of the Civilian Defense Act manifests an intent by the legislature to vest a mayor with removal power over the position. The Faulkner Act does not change this result. A municipality's ability to govern itself is not harmed by denying a mayor such power. The same cannot be said for the State's disaster response mechanism if this [c]court were to hold otherwise.
On August 12, 2009, the judge entered an order granting summary judgment in favor of plaintiff declaring that the "Mayor in a mayor-council form of government has no authority to remove a municipal Emergency Management Coordinator" prior to the expiration of his or her three year term and that such authority "is vested only with the Governor" under the statute.
Subsequently, defendants moved for summary judgment seeking to dismiss the second count of the complaint, including a claim for attorneys fees. By this time, both plaintiff and Langford had been deposed. Langford conceded that he could recall no consultations with municipal counsel or his staff about removing plaintiff, but had "always been of [the] opinion" that he had the "ability and the right" to appoint "[his] own" EMC. Langford added that his decision to replace plaintiff had nothing to do with plaintiff's training or competence.
Plaintiff testified at his deposition that he had been active in Atlantic City politics and that he had supported candidates that opposed Langford in the past. Plaintiff stated that the city's assistant business administrator ...