Fromosky v. Twp. of Little Egg Harbor
| Decision Date | 14 November 2019 |
| Docket Number | DOCKET NO. A-5028-17T2 |
| Parties | MICHAEL FROMOSKY, Plaintiff-Respondent, v. TOWNSHIP OF LITTLE EGG HARBOR, EUGENE KOBRYN, and DAVE SCHLICK, Defendants, and RICHARD BUZBY and GARRETT LOESCH, Defendants/Third-Party Plaintiffs-Appellants, v. LITTLE EGG HARBOR TOWNSHIP, MICHAEL FROMOSKY, JOHN KEHM, and RAYMOND GORMLEY, Third-Party Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0723-17.
John J. Novak argued the cause for appellants (John J. Novak, attorney; John J. Novak and Deborah A. Plaia, on the briefs).
Jennifer M. Carlson argued the cause for respondent Michael Fromosky (Richard M. Pescatore, PC, attorneys; Jennifer M. Carlson, on the brief).
Erin Thompson argued the cause for respondents Little Egg Harbor Township, John Kehm, and Raymond Gormley (Birchmeier & Powell LLC, attorneys; James Robert Birchmeier, on the brief).
This appeal arises out of a series of complaints made by employees of the Township of Little Egg Harbor (Township). The named plaintiff, Michael Fromosky, is the Township's Code Enforcement Officer. Ultimately, he settled his claims. As a consequence, the claims at issue on this appeal are counterclaims and third-party claims filed by Richard Buzby and Garrett Loesch.
Buzby is the Township Chief of Police and Loesch was the Township Business Administrator and Chief Financial Officer. They asserted claims against Fromosky, the Township, John Kehm, and Raymond Gormley. The latter two individuals are members of the Township committee. Buzby and Loesch appeal from five orders entered on February 2, 2018, and March 29, 2018. Those orders (1) granted summary judgment to Fromosky; (2) denied reconsideration of that summary judgment order; (3) dismissed the third-party complaint as to all third-party defendants for failure to state a claim; (4) denied Buzby and Loesch's motion for leave to file an amended third-party complaint against Fromosky; and (5) denied Buzby and Loesch's motion for leave to amend the third-party complaint against all third-party defendants. Having reviewed the arguments of the parties in light of the record and law, we affirm.
We take the facts from the record developed on the motions and view them in a light most favorable to Buzby and Loesch, the non-moving parties. Loesch and Buzby alleged that they were retaliated against by Fromosky, Gormley, and Kehm as a result of reporting alleged wrongful conduct engaged in by Kehm. The initial report of the wrongful conduct occurred in 2014, when Loesch reported that conduct to Buzby. Buzby, in turn, sent a letter to the Ocean County Prosecutor's Office. Buzby and Loesch then alleged that they were subjected to retaliatory acts, which occurred between September 2015 and September 2016. They also contend that during that same period of time they were slandered. Accordingly, we will summarize the relevant letters sent by, and communications made by, Buzby and Loesch between March 2015 and September 2016, as well as the alleged resulting retaliation and slander.
The initial report of alleged misconduct was made by Buzby in a letter he sent to the Ocean County Prosecutor, dated March 10, 2015. Buzby asserted that Kehm was retaliating against him and causing "an adverse effect on [the Township's] police operations." Buzby reported that in May 2014, Loesch had advised him that "he believed Kehm may have been improperly collecting FEMA rental assistance while remaining in the same home he claimed to be displaced from." Buzby explained he was unable to investigate Loesch's claim against Kehm because Kehm was Buzby's "appropriate authority." Accordingly, to address Loesch's concern, Buzby contacted his "other appropriate authority," Committeeman Gormley, who confronted Kehm. Buzby went on to report that Kehm had denied any wrongdoing when confronted by Gormley.
Buzby informed the prosecutor that Loesch had also reported that "Kehm had applied for, and received, a property tax abatement on his damaged home." Buzby explained that, according to Loesch, "Kehm . . . received a 90% tax reduction on the value of his damaged home[,]" which he was not entitled to under the law. Buzby noted that he believed Kehm was aware that Loesch had reported the improper property tax abatement.
Buzby then wrote that "[s]ince these facts have become known to Kehm, every request for anything I have made ha[s] been greeted by scorn and ridicule by Kehm and, to a lesser extent, Gormley." Buzby concluded his letter by stating that he was seeking protection under the whistleblower act and he requested that Kehm be removed "as an appropriate authority for the police department . . . ." A copy of Buzby's letter was sent to the Township's Mayor and Counsel.
About one week later, Loesch sent an email to the Mayor requesting protection from retaliation and insisting that "you as the Mayor must . . . act to protect your staff and prevent possible litigation against the [T]ownship." A few hours later, the Mayor sent a response and explained he had contacted legal counsel for assistance.
On March 23, 2015, Township Counsel sent a letter to Loesch addressing his earlier email. Counsel requested that Loesch "advise as to any adverse employment actions . . . suffered since the disclosure so that the Township may address any issue immediately." Counsel also requested that Loesch describe the "form of protection [he was] requesting and the nature of the threats/harassment [he had] experienced." Counsel then advised Loesch to call the police if he felt threatened. Counsel also advised that Loesch's complaints had been forwarded to the Ocean County Prosecutor's Office.
A few weeks later, Loesch sent another email to Township Counsel, requesting advice concerning his ability as Township Business Administrator "to set the duties and expectations for the code enforcement [officer] . . . position." In that email, Loesch stated, "everything has calmed down with respect to the other [Kehm]/[Gormley] issues." Nonetheless, he stated that he suspected Fromosky, as a Code Enforcement Officer, would likely attempt to "defend[] himself from retaliation by me" and, thus, Loesch feared his actions would be examined "through a magnifying glass." He explained he was concerned about future conflicts between himself, Fromosky, Gormley, and Kehm, but stated that he was "not looking [to] do anything at all, no actions or anything." Instead, he explained he was only seeking advice regarding how to proceed if something should happen in the future.
Township Counsel responded that day, advising Loesch that, as the Township Business Administrator, he was tasked with supervising Fromosky and had "the authority to discipline" him if he refused to perform his assigned duties.
Several months later, in early-August 2015, Buzby again contacted the Ocean County Prosecutor and copied the Mayor and Loesch on that communication. He explained he was writing to provide additional information concerning "possible retaliation" against himself and a third Township employee for reporting Kehm's "possible misconduct." Buzby stated he had been informed that "'they' had somehow gotten the letter of referral and now were 'quote, looking to get even.'" In making that claim, Buzby did not state who "they" were.
Buzby also reported an incident that had occurred that past weekend between Fromosky and William Allen, another Township employee (the Allen-Fromosky incident). According to Buzby, Allen and Fromosky were attending a wedding reception when Fromosky approached Allen and claimed that Buzby "had, 'thrown him (Bill Allen) under the bus' by including information from him in [the] letter to [the prosecutor] about John Kehm." Fromosky then informed Allen that he was a former state trooper who "had many contacts in [the Ocean County Prosecutor's Office], one of whom allegedly provided the letter" in which Buzby had reported Kehm's misconduct.
Buzby informed the prosecutor that he found the Allen-Fromosky incident troubling for two reasons. First, he believed it was inappropriate for Fromosky to know that Buzby had reported Kehm for potential misconduct since Kehm had "fought so hard" to safeguard Fromosky's employment with the Township. Second, he maintained the incident showed that Fromosky had threatened a Township employee whom he incorrectly believed was involved in reporting Kehm's misconduct. Accordingly, Buzby feared Fromosky's "threats" would "get[] even worse."
After Buzby reported the Allen-Fromosky incident, Allen, himself, submitted a complaint and letter to the Township, which detailed the incident. In response, the Township had outside counsel, Robert Greitz, investigate the incident. As part of his investigation, Greitz interviewed several Township employees, including Allen, Fromosky, and Buzby. Greitz prepared a final report, dated September 20, 2015, in which he concluded,
During the Allen-Fromosky investigation, Buzby made a complaint directly to Greitz, alleging that Fromosky had lied about Buzby during his interview with Greitz. Thereafter, on December 28, 2015, Buzby sent an email to the Mayor and Loesch, stating the Township had never addressed his charge against Fromosky for lying. He also wrote that Kehm and Fromosky were engaged in a conspiracy "that involve[d] Fromosky reporting [Buzby] falsely to the attorney general[,]"...
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