Dyke v. Otlowski

• Decision Date: 07 December 1977
• Parties: John DYKE, Irwin Friedman and Ann N. Winnicki, Plaintiffs, v. George J. OTLOWSKI, Individually and as Mayor of City of Perth Amboy; City of Perth Amboy; James Goumas; Stephen Golec and Lillian Handerhan, Defendants.
• Court: New Jersey Superior Court

Page 377

154 N.J.Super. 377

381 A.2d 413

John DYKE, Irwin Friedman and Ann N. Winnicki, Plaintiffs, v. George J. OTLOWSKI, Individually and as Mayor of City of

Perth Amboy; City of Perth Amboy; James Goumas;

Stephen Golec and Lillian Handerhan, Defendants.

Superior Court of New Jersey, Chancery Division.

Dec. 7, 1977.

Jack Wysoker, Perth Amboy, for plaintiffs Irwin Friedman and Ann W. Winnicki (Mandel, Wysoker, Sherman, Glassner & Weingartner, Perth Amboy, attorneys).

Oliver R. Kovacs, Perth Amboy, for George J. Otlowski, individually (Kovacs, Anderson, Horowitz & Rader, Perth Amboy, attorneys).

Saul Wolfe, Newark, for George J. Otlowski, as mayor of Perth Amboy and all other defendants (Skoloff & Wolfe, Newark, attorneys).

FURMAN, J. S. C.

Plaintiffs Friedman and Winnicki contend their discharges from employment with the City of Perth Amboy were in violation of their rights to their own political beliefs and associations under the First and Fourteenth Amendments to the United States Constitution. After a change in the city administration as the result of a nonpartisan election in May 1976 (N.J.S.A. 40:69A-1 et seq.), Friedman was ousted by defendant Otlowski, the new mayor, from his job as Senior Housing Inspector and Winnicki from hers as Supervisor of Senior Citizens Activities. Both were without Civil Service or other tenure.

Their action is in the Chancery Division for a declaratory judgment that their discharges from employment were invalid and for an injunction to compel reinstatement, remedies indistinguishable from prerogative writ relief (R. 4:69) against a municipality in the Law Division to vacate a wrongful discharge from employment. See, e. g., Perrapato v. Rose, 83 N.J.Super. 245, 199 A.2d 385 (App.Div.1964). Plaintiffs also seek damages for violation of their civil rights under 42 U.S.C.A. § 1983.

Whether venue should have been transferred to the Law Division (R. 4:3-1(a) (2)) is without practical significance. The Chancery Division, having retained the action, may provide full legal as well as equitable relief. N.J.Const. (1947), Art. VI, § III, par. 4; Asbestos Fibres, Inc. v. Martin Laboratories, Inc., 12 N.J. 233, 239, 96 A.2d 395 (1953).

Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), is the controlling constitutional authority. According to the concurring opinion of two justices (at 375, 96 S.Ct. at 2690) a nonpolicymaking, nonconfidential governmental employee cannot be discharged from a job "that he is satisfactorily performing upon the sole ground of his political beliefs." The binding stare decisis effect of Elrod is limited to the concurring opinion; a plurality of three justices only joined in the opinion of the court. Cf. Baker v. State, 15 Md.App. 73, 289 A.2d 348 (Ct.Spec.App.1972), cert. den. 410 U.S. 969, 93 S.Ct. 1449, 35 L.Ed.2d 705 (1973); People v. Martin, 192 Misc. 192, 83 N.Y.S.2d 201 (Cty.Ct.1948).

Factual issues must therefore be resolved whether Friedman and Winnicki were nonpolicymaking and nonconfidential employees of the City of Perth Amboy who were discharged solely for political reasons. See Rosenthal v. Rizzo, 555 F.2d 390 (3 Cir. 1977), sustaining a denial of summary judgment because of a factual issue whether an administrative assistant in the Industrial Relocation Department of the Philadelphia Redevelopment Authority was a nonpolicymaking and nonconfidential employee. The circumstance that the City of Perth Amboy municipal election was nonpartisan does not diminish or alter the constitutional protection against infringement of plaintiffs' political beliefs and associations.

The plurality opinion in Elrod alludes to the difficulty of factual determinations between what are policymaking and nonpolicymaking governmental employments:

No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number or responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. (427 U.S. at 367-368, 96 S.Ct. at 2687)

Plaintiffs in Elrod were employees of the sheriff's office. In Illinois State Employees Union v. Lewis, 473 F.2d 561 (7 Cir. 1972), cert. den. 410 U.S. 943, 93 S.Ct. 1370, 35 L.Ed.2d 609 (1973) a forerunner of Elrod, license examiners and building and clerical employees were held to be nonpolicymakers and thus shielded from political firing. Parallel holdings applied to the field coordinator for the training of adult educators under a federal program in Morales v. Benitez, 541 F.2d 882 (1 Cir. 1976), and to deputy sheriffs in Ramey v. Harber, 431 F.Supp. 657 (W.D.Va.1977).

Lower federal courts, in denying constitutional relief upon political discharges, have categorized as policymakers: an Assistant Secretary of Education in Morales, supra ; consultants and coordinators in the Federal Projects Division of a state government (Indiana State Employees Ass'n v. Negley, 365 F.Supp. 225 (S.D.Ind.1973), aff'd 501 F.2d 1239 (7 Cir. 1974)); the chairman of a State Liquor Control Commission (Adams v. Walker, 492 F.2d 1003 (7 Cir. 1974)); the assistant to the Director and Special Coordinator of a Governor's Office of Human Resources (Gould v. Walker, 356 F.Supp. 421 (N.D.Ill.1973)); and a regent of a State Museum (Mitchell v. King, 537 F.2d 385 (10 Cir. 1976)).

In a two-day trial evidence was introduced concerning the political activities, the duties and responsibilities and the grounds of discharge of plaintiffs Friedman and Winnicki. Friedman was active in the political campaign to reelect the incumbent mayor, who was defeated by defendant Otlowski. He assisted in setting up headquarters and rallies. He manned headquarters. After work hours he drove his car equipped with a loudspeaker. Winnicki attended rallies for the incumbent mayor, urged acquaintances to vote for him but was not otherwise politically active.

Winnicki had administrative responsibility for an ambitious senior citizens program in Perth Amboy. Broad objectives and guidelines were set by the Federal Government, which provided funding (42 U.S.C.A. § 3001 et seq.). Adhering to these she consulted from time to time with her superiors within the municipal government: the Director of Community Development, the Business Administrator and the Mayor. She was in charge of a senior citizens center where she supervised preparation of nutritional meals. She planned and directed social, recreational and cultural activities, as well as lectures and discussions on problems and concerns of the aged.

Within the federal guidelines Winnicki exercised discretion as to which programs and activities to promote and stress. Several witnesses testified to her resourcefulness and innovativeness. Her responsibilities were of broad scope and she formulated and carried out plans for the implementation of broad objectives.

The conclusion must be reached that Winnicki was a policymaking...