December 10, 2012
FELIX P. GONZALEZ, PLAINTIFF-APPELLANT,
CITY OF CAMDEN, CHRISTINE JONES TUCKER AND HOWARD J. MCCOACH, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4769-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2012
Before Judges Fisher and St. John.
Plaintiff is an attorney who was employed as litigation supervisor of defendant City of Camden's tort department until March 15, 2010, when, after approximately nine years of employment,*fn1 he was terminated for reasons he claims support a viable action for damages pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
In opposing defendants' summary judgment motion, plaintiff argued he was unlawfully terminated because he informed defendant Howard McCoach, the City attorney at the time, and defendant Christine J. Tucker, that he would file a complaint against them with the Office of Attorney Ethics. Specifically, plaintiff asserted that the individual defendants had taken the unethical view that the City was not obligated to hire outside counsel for employees in tort and civil rights cases where the City was also a defendant but had not agreed to indemnify the employee. In fact, many years before, the Supreme Court held that this per se rule, which plaintiff urged to his employer and allegedly led to his termination, was not ethically required. See In re Petition for Review of Opinion 552 of the Advisory Committee on Professional Ethics, 102 N.J. 194, 205-07 (1986). Relying on Opinion 552, defendants successfully argued that plaintiff had no viable CEPA claim. We agree.
To succeed, plaintiff was required to demonstrate, among other things, that he "reasonably believed" the City's conduct was violating "either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see also Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000). Opinion 552 demonstrates that the basis for plaintiff's claim to his superiors about the ethics of the City's policy was mistaken. In defining the reasonableness of a plaintiff's mistaken belief about an employer's conduct, the Supreme Court has observed that CEPA's goal is "not to make lawyers out of conscientious employees." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193 (1998); see also Dzwonar, supra, 177 N.J. at 464. Plaintiff, however, is an attorney and the reasonableness of his assertion about the ethics of the City's policy regarding joint representation must be viewed in that context. In that light, the motion judge held -- and we agree -- that Opinion 552 eviscerated plaintiff's claim that it was reasonable for him to believe the City's policy regarding joint representation was unethical. As a result, summary judgment was appropriately entered in favor of defendants.