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Harvard v. State

Superior Court of New Jersey, Appellate Division

August 12, 2019

KEVIN HARVARD, Plaintiff-Appellant.

          Argued November 14, 2017

          On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0850-13.

          Frank L. Corrado argued the cause for appellant (Barry, Corrado & Grassi, PC, attorneys; Frank L. Corrado, on the briefs).

          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 brief).

          Before Judges Hoffman, Gilson and Mayer.


          HOFFMAN, J.A.D.

         In 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."

         One 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.

         We 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).

         Viewed 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.

         In its 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 discontinued.
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 utilized ...

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