KEVIN HARVARD, Plaintiff-Appellant.
STATE OF NEW JERSEY, JUDICIARY, ATLANTIC-CAPE MAY VICINAGE, Defendant-Respondent.
November 14, 2017
appeal from Superior Court of New Jersey, Law Division,
Cumberland County, Docket No. L-0850-13.
L. Corrado argued the cause for appellant (Barry, Corrado
& Grassi, PC, attorneys; Frank L. Corrado, on the
Kimberly A. Eaton, Deputy Attorney General, argued the cause
for respondent (Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney General, of
counsel; Gregory J. Sullivan, Deputy Attorney General, on the
Judges Hoffman, Gilson and Mayer.
2000, the Assignment Judge for the Atlantic-Cape May Vicinage
(the Vicinage) appointed plaintiff Kevin Harvard as a Special
Civil Part Officer (SCPO). In 2010, the Vicinage began
investigating plaintiff's financial records and
eventually found over a dozen violations of various
directives of the Administrative Office of the Courts (AOC).
As a result, in July 2012, the Assignment Judge for the
Vicinage terminated plaintiff's appointment in accordance
with AOC Directive # 2-07, which states a SCPO's
"appointment may be terminated at any time in the
discretion of the Assignment Judge."
year later, in July 2013, plaintiff filed a complaint in the
Law Division alleging violations of the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, the
New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and
his constitutional substantive and procedural due process
rights. After the parties completed discovery, the Vicinage
successfully moved for summary judgment, resulting in the
dismissal of plaintiff's complaint with prejudice.
Plaintiff then filed this appeal, seeking reversal of the
June 29, 2016 order granting summary judgment. For the
following reasons, we affirm.
review an order granting summary judgment de novo, applying
the same standard used by the trial court, L.A. v. N.J.
Div. of Youth & Family Servs., 217 N.J. 311, 323
(2014), which requires denial of summary judgment if
"the competent evidential materials presented, when
viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving
party." Townsend v. Pierre, 221 N.J. 36, 59
(2015) (quoting Davis v. Brickman Landscaping, Ltd.,
219 N.J. 395, 406 (2014)); see also R. 4:46-2(c).
Similarly, our review of legal issues is de novo.
Waskevich v. Herold Law, P.A., 431 N.J.Super. 293,
297 (App. Div. 2013).
most favorably to plaintiff, the summary judgment record
established the following relevant facts. In 2000, following
his appointment as a SCPO, plaintiff established an office in
his home. Around 2004, plaintiff hired three employees to
help run his office; the Vicinage was not involved in his
decision to hire these employees.
written opinion, the trial court succinctly described the
relationship between SCPOs and their respective vicinages:
Judiciary Human Resources is not involved in the recruitment
or employment process for SCPOs. Instead, the appointment of
SCPOs is by court order signed by the Assignment Judge. The
court order expressly states "that this appointment may
be discontinued at the discretion of the court." The
consent paragraph of the appointment order expressly states
that "I understand that a [SCPO] is not an employee of
the New Jersey Judiciary."
SCPOs are categorized as independent contractors under AOC
directives, considered to be independent contractors by
Judiciary Human Resources, and their legal status is that of
an independent contractor for tax and labor law purposes.
SCPOs are not paid a salary. They are compensated by
commissions and fees set by statute. They do not receive any
of the perquisites and emoluments enjoyed by judiciary
employees. By way of example, SCPOs are not members of the
Public Employee Retirement System ("PERS"), are not
eligible for pension benefits, do not receive health or life
insurance coverage benefits, and are not subject to minimum
wage and hour requirements. SCPOs do not receive any paid
vacation or sick leave. The judiciary does not make any
employer-based social security contributions on behalf of
SCPOs. SCPOs receive a Form 1099, not a W-2 form . . . .
SCPOs are purely at-will appointees that serve at the
pleasure of the [V]icinage Assignment Judge. They are not
appointed for a statutory term of office or a defined
contractual period, and have no tenure rights or civil
service rights. SCPOs are not appointed annually or for any
other time period. They serve until their appointment is
SCPOs work independently, at their own pace, and provide
their own equipment, offices, vehicles and insurance. SCPOs
can hire their own employees without vicinage approval unless
the employee would assist in serving process. Bank accounts