Kelly v. Bollwage
| Decision Date | 02 August 2021 |
| Docket Number | A-2083-19 |
| Parties | TODD KELLY, Plaintiff-Appellant, v. J. CHRISTIAN BOLLWAGE, JAMES COSGROVE, CITY OF ELIZABETH, ELIZABETH POLICE DEPARTMENT, PATRICK SHANNON, and TYRONE TORNER, Defendants-Respondents. ROBERT BRENNAN, JAMES KEARNS, and GERALD MCDONALD, Plaintiffs-Appellants, v. J. CHRISTIAN BOLLWAGE, JAMES COSGROVE, CITY OF ELIZABETH, ELIZABETH POLICE DEPARTMENT, PATRICK SHANNON, and TYRONE TORNER, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 26, 2021
On appeal from the Superior Court of New Jersey, Law Division Union County, Docket Nos. L-2647-16 and L-3562-16.
Joshua F. McMahon argued the cause for appellants.
Robert F. Varady argued the cause for respondents City of Elizabeth and J. Christian Bollwage (La Corte, Bundy, Varady &Kinsella, attorneys; Robert F. Varady, of counsel Christina M. DiPalo, on the brief).
Michael S. Simitz argued the cause for respondent James Cosgrove (Kologi Simitz, attorneys; Edward J. Kologi and Michael S. Simitz, of counsel and on the brief).
Robert F. Renaud argued the cause for respondent Patrick Shannon (Renaud DeAppolonio, LLC, attorneys; Robert F. Renaud and Catherine M. DeAppolonio, on the brief).
Before Judges Geiger and Mitterhoff.
Plaintiffs Todd Kelly, Robert Brennan, James Kearns, and Gerard McDonald appeal the order granting summary judgment to defendants J Christian Bollwage, James Cosgrove, the City of Elizabeth (Elizabeth), the Elizabeth Police Department (EPD), and Patrick Shannon. They also appeal the denial of their motions for reconsideration and recusal of the trial court judge. We affirm in part, reverse in part, and remand.
The record reflects the following pertinent facts when the evidence is viewed "in the light most favorable to the non-moving" plaintiffs. W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (citing Brill v. Guardian Life Ins Co. of Am., 142 N.J. 520, 523 (1995)). At all times relevant to this matter, Bollwage was the mayor of Elizabeth, Cosgrove was the director of the EPD, Shannon was the Chief of Police, and Tyrone Torner was Deputy Chief.
Plaintiffs were sergeants in the EPD. In September 2013, plaintiffs took the Civil Service Police Lieutenant Examination in hopes of being promoted to lieutenant. Kelly, Kearns, Brennan, and McDonald, in that order, had the four highest examination scores. The corresponding eligible list was active for three years from February 6, 2014 through February 5, 2017.
In March 2014, plaintiffs learned that on January 13, 2014, Cosgrove submitted a request for certification of three sergeants for lieutenant positions from the prior eligible list set to expire on February 2, 2014. The certification request indicated there were three vacancies for lieutenant and identified the three highest ranking sergeants as Jose A. Rodriguez, Michael B. Niewinski, and Lawrence Gioconda, in that order.
Plaintiffs believed there was only one vacancy, and that Cosgrove was prospectively hiring candidates for not-yet-vacant positions, in violation of N.J.A.C. 4A:4-4.8(b). Although a second vacancy occurred on March 1, 2014, due to a retirement, plaintiffs argued that under N.J.A.C. 4A:4-4.8(b), the vacancy did not extend or toll the February 2, 2014 expiration of the eligible list. Plaintiffs claimed that the appointing authority's reliance on the expired list "obstructed" their "lawful opportunity to participate in the selection and appointment process" in violation of N.J.A.C. 4A:10-1.1(c). Finally, plaintiffs claimed Cosgrove made a false and inaccurate certification request, in violation of N.J.A.C. 4A:10-1.1(d).
Kelly and Kearns met with Lieutenant Richard Shaughnessy, then President of the Superior Officers Association (SOA), to inform him that Cosgrove was violating N.J.A.C. 4A:4-4.8(b). Around March 18, 2014, Shaughnessy met with Cosgrove and explained Kelly and Kearns would appeal two of the promotions from the inactive list. Cosgrove stated he still intended to promote the three sergeants from the expiring list. On March 21, 2014, Shaughnessy met with Kelly and Kearns to inform them that Bollwage "wanted him to let us know that if we filed an appeal and if anybody got demoted because of it, he would freeze our list, never promote us, and, if need be, demote captains in order to fill the open lieutenants list."
On April 1, 2014, Rodriguez, Niewinski, and Gioconda were promoted to Lieutenant. Kelly, Kearns, and McDonald appealed the promotions to Civil Service Commission (Commission). Plaintiffs requested that two of the three promotions be voided, and that the appointing authority be ordered to appoint one of the top three eligible candidates from the current eligible list. On May 6, 2015, the Commission issued a final administrative decision granting the appeal in part. The Commission determined that two appointments from the certification request were valid but rescinded the invalid third appointment. The Commission explained:
The disposition due date may be extended beyond the expiration date of the eligible list to fill current vacancies. Under no circumstances shall a disposition due date be extended beyond the expiration date of the eligible list when vacancies do not exist. An anticipated vacancy shall not be considered the same as an existing vacancy.
On May 9, 2014, Kelly, Kearns, and McDonald filed a declaratory judgment action seeking injunctive relief, naming Elizabeth and Cosgrove as defendants. On May 22, 2014, less than twenty-four hours after being served with the complaint, Cosgrove advised Shaughnessy to tell Kelly that Kelly was being transferred from the Narcotics Unit to the Patrol Division, a less desirable assignment, effective June 2, 2014. On May 27, 2014, Shannon issued an order that transferred both Kelly and McDonald from investigative assignments to patrol. Shannon later testified that the transfer was requested by Cosgrove. Internal Affairs (IA) Sergeant Stephen Negrey testified that Shannon "could be disciplined" if he did not comply with Cosgrove's request. Kelly, Kearns and McDonald dismissed the declaratory judgment action with prejudice by stipulation around the same time that the Commission issued its final decision in May 2015.
In September 2014, Kelly became aware that he was being investigated by IA for violating the department's Extra Duty Assignment Rules by allegedly "leaving an assigned extra duty post early." On September 29, 2014, Negrey informed Kelly that the investigation revealed Kelly was "at his designated assignment for the entire shift and that [Kelly] did not show up late nor . . . leave early." Negrey advised Kelly that Cosgrove played an active role in investigating the matter, which was highly unusual for a police director, especially since Cosgrove served as the EPD's Hearing Officer for disciplinary proceedings.
On November 22, 2014, Kelly and four other officers received commendations for their role in an April 2014 incident involving the exchange of gunfire. The other four officers received the prestigious Valor Award, while Kelly received a lesser Merit Award with no explanation.
On February 3, 2015, Shannon issued Special Order No. 2019, which denied Kelly and forty-seven other officers work permits after "a careful review of the attendance records." Kelly thereafter learned that forty-three officers were granted a work permit despite having worse attendance records than he had. Kelly learned from then SOA President Julian Hilongos that Cosgrove mistakenly placed Kelly on the denial list. Cosgrove later informed Kelly that Shannon was responsible for the work permit denial.
Later in February 2015, Kelly requested to attend, at no cost to the EPD, the four-day FBI's Leadership &Ethics for Law Enforcement Supervisors School to be held at the Bergen County Police Academy in May 2015. By then, Kelly had been a sergeant for ten years yet had not attended that school. Kelly received no official response to his request.
Plaintiffs also alleged that beginning in February 2014, they were subjected to harassment by co-workers and superiors. At one point, Cosgrove told officers to blame Kelly and Kearns for the lack of promotions. In March 2015, Kelly learned that Gioconda referred to Kelly on Facebook posts as "an enemy within our walls," called Kelly and two other sergeants "cutthroats," "motherf**kers," and "b*tches," and said he "trust[ed] people in the streets with drugs, guns" and who are "anti[-]police [more than] these Mother F**kers." That same month, when Kelly "walked into the roll-call room at the beginning of his shift, "Torner stated, "[h]ere comes the troublemaker" and told Kelly that Giaconda "did nothing wrong" regarding his Facebook posts. Giaconda was Kelly's direct superior after he made the Facebook posts.
In addition, four lieutenant positions became vacant from February 2014 to August 2016, none of which were filled due to Bollwage's hiring "freeze." On April 16, 2015, Kelly learned six patrolmen were being promoted to sergeant later that month. Kelly asked Cosgrove to consider promoting him to lieutenant during the promotion ceremony. Cosgrove informed Kelly he could not promote him because he took Kelly's complaint "personally." By email dated April 20, 2015, Elizabeth's municipal solicitor advised Kelly's attorney "that the City would only consider the promotion to the [lieutenant] position if both the [Civil Service] and Superior [Court] matters were ended." Kelly did not do so.
On May 6, 2015, another lieutenant vacancy emerged when the Civil Service Commission rescinded Gioconda's appointment. Two days later, Bollwage informed Kelly's mother, who was a committee member at that point, that he would ...
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