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Salkin v. Labrosse

United States District Court, D. New Jersey

June 13, 2019



          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Richard Salkin, the former attorney for the Board of Education of Hackensack, New Jersey, brings this Section 1983 action against Hackensack Mayor John Labrosse (“Labrosse”); Hackensack School Board Members Frances Cogelja (“Cogelja”), Lance Powell (“Powell”), and Carlos Velez (“Velez”); campaign manager Wendy Martinez (“Martinez”); Vision Media Marketing (“Vision”) and its principal Philip Swibiniski (“Swibiniski”); the Hackensack Public School District (“HPSD”); and the City of Hackensack (“the City”). Plaintiff alleges that during the 2018 campaign for three open positions on the HPSD school board, Defendants defamed Plaintiff and made statements about his performance and political affiliations that resulted in his constructive discharge from his position in violation of the First Amendment.

         This matter comes before the Court upon two motions to dismiss pursuant to Federal Rule of Civil Procedure12(b)(6) filed by the City, HPSD, Cogelia, Powell, and Velez (“Moving Defendants”), ECF Nos. [34] and [35] (“Motions”). There was no oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, the Motions are GRANTED.

         1. BACKGROUND

         A. Factual Background

         The following facts are derived from the Amended Complaint, ECF No. [28], and are accepted as true for purposes of the Motions.

         Plaintiff served as attorney for the Board of Education of HPSD (“BOE Attorney”) from 2005 to 2018. ECF No. [28] ¶ 15. During his tenure, the Board of Education re-appointed Plaintiff annually through a non-political process. Id. ¶¶ 16-17. According to Plaintiff, the position of BOE Attorney is non-partisan, and Plaintiff did not “serve any significant role in policy making.” Id. ¶¶ 17-18. Instead, his role focused on “handling labor matters; representing HPSD with regard to grievances; advising staff members; handling personnel issues; representing HPSD in contractual issues and tuition issues; the bidding processes for vendors, and; the enforcement of HPSD policies.” Id. ¶¶ 19-20. For this work, Plaintiff was compensated $150 per hour from 2005 to 2017 and $160 per hour from 2017 to 2018. He billed HPSD between $130, 000 to $153, 000 each year. Id. ¶¶ 22-23. During his last year of service, Plaintiff alleges he was paid approximately $13, 000 each month. Id. ¶ 59.

         While Plaintiff held the BOE attorney position, he expressed political support for certain mayors, including former Hackensack Mayor Jack Zisa and local Hackensack council members that supported Zisa. Id. ¶¶ 29-30. In 2013, Defendant Labrosse was elected mayor of Hackensack, defeating those for whom Plaintiff had previously expressed support. Id. ¶¶ 31-32. While Plaintiff alleges that he did not support Defendant Labrosse or the other council members that were elected with him, Plaintiff continued to serve in his role as BOE Attorney. Id. ¶ 32.

         Five years later in 2018, HPSD held an election for three positions on its school board that precipitated the claims in this lawsuit. Plaintiff alleges that while the school board positions are “non-partisan” and “non-political, ” id. ¶ 34, Defendants Cogelja, Powell, and Velez (together, the “Individual Defendants”) were “affiliated with a ‘Labrosse Team' ” supported by the current Hackensack mayor. Id. ¶ 38. During their campaigns, Plaintiff's legal fees, his responsibilities as BOE Attorney, and his relationship with former mayors became the subject of campaign flyers and social media posts. Specifically Defendant Martinez, the Individual Defendants' campaign manager, requested information from the City regarding Plaintiff's billable hours and purchase orders for his legal services. Id. ¶ 39. Plaintiff alleges that the Individual Defendants, either acting individually or through Defendants Vision and Swibinski, issued several public statements in the two weeks leading up to the April 17, 2018 elections that were “false, malicious, and defamatory.” Id. ¶ 40. These statements are detailed below.

         On April 5, 2018, the Individual Defendants issued a press release “demanding that Plaintiff reimburse [the Hackensack Public Schools] for a portion of his fees” and stating that “Plaintiff raised his compensation by 50%, overbilled taxpayers by thousands of dollars, [] broke the state law . . . by working without a contract, ” “increased [his compensation] from $95, 000 to $144, 000, ” and “believes he is above the law because he actually controls the Board of Education through his relationship with the Zisa family.” Id. ¶¶ 43-44 (the “Press Release”). In the Press Release, Defendant Cogelja stated that Plaintiff had “overbilled taxpayers by $13, 000” and “was charging a higher rate than allowed.” Id. ¶ 45. Although Plaintiff received a letter the following day from HPSD clarifying that the school district had not overpaid him, id. ¶ 48, the information found in the Press Release was reprinted on April 7, 2018 by Id. ¶ 49.

         The next day, on April 8, 2018, the Individual Defendants published the following statement on Facebook:

Did you know that School Attorney Richard Salkin (a longtime Zisa family lawyer) and School Board President (and Zisa candidate) Jason Nunnermacker have a blatant conflict of interest involving hundreds of thousands of dollars?
Did you know that School Attorney Salkin has ruled that there is ‘nothing wrong' with school employees doing political work for Zisa candidates - on school time and on school property?
Did you know that Salkin overbills the school district by tens of thousands of tax dollars . . . ?

Id. ¶ 50 (the “Facebook Post”). The complaint alleges that the substantive content of the Facebook Post was “contemporaneously” reprinted in a campaign advertisement by “Labrosse and the Labrosse Team.” Id. ¶ 52. Finally, on election day the Individual Defendants, Vision, or Swibinski distributed a campaign flyer which stated:

Kick the Zisas Out of Our Schools!
The Board of Education has long been controlled by Jack and Ken Zisa through School Attorney Richard Salkin and Board President Jason Nunnermacker - two longtime Zisa family cronies. Last year they allowed school employees to do political work for Zisa city council candidates - on taxpayer time and on school property. Nunnermacker's law firm collected hundreds of thousands of dollars representing Salkin's wife. At the same time, ...

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