Siss v. County of Passaic
| Decision Date | 19 May 1999 |
| Docket Number | No. Civ.A. 98-2500 JWB.,Civ.A. 98-2500 JWB. |
| Citation | 75 F.Supp.2d 325 |
| Parties | Darryl W. SISS, Plaintiff, v. COUNTY OF PASSAIC; Passaic County Board of Freeholders; Peter Eagler, Individually and in his capacity as Freeholder; James Gallagher, Individually and in his capacity as Freeholder; Georgia Scott, Individually and in her capacity as Freeholder; Lois Cuccinello, Individually and in his capacity as Freeholder; and 10 John and/or Jane Does, as yet unknown, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Segreto & Segreto by James V. Segreto, Haledon, New Jersey, for plaintiff.
Gerber & Samson by Mary Pat Gallagher, Wayne, New Jersey, for defendants.
This matter comes before the Court on a motion for summary judgment by all defendants: County of Passaic, Passaic County Board of Freeholders ("the Board of Freeholders" or "the Board"), Peter Eagler, James Gallagher, Georgia Scott and Lois Cuccinello. Plaintiff Darryl W. Siss filed the Complaint ("Compl.") in this action on April 27, 1998 in the Superior Court, Law Division, Passaic County. On May 29, 1998, defendants removed the action to this Court.
Plaintiff claims in this action that defendants terminated him from his position as Assistant County Counsel in violation of various state and federal rights. Count II of plaintiff's Complaint alleges that defendants discharged him in contravention of the New Jersey Open Public Meetings Act, N.J.S.A. 10:4-1 et seq. (Count II). Count I is predicated on numerous theories of recovery. It alleges that defendants "were required as a matter of law and due process ... to serve him with charges and provide a hearing none of which occurred." (Compl., ¶ 4). In addition, it alleges that defendants' termination of plaintiff because he is a Republican "constitutes an impermissible infringement upon his Federal First Amendment as well as State Constitutional Rights and Common Law rights to be free of retaliatory termination of his public employment by reason of his political affiliations." (Id., ¶ 5). Count I further alleges: "The action of Defendants in addition to being a violation of the Federal and State constitution is a violation of the Federal Civil Rights Act as well as the Laws against discrimination of the State of New Jersey." (Id., ¶ 11). Finally, Count I alleges: "The Plaintiff's right to associate with others for the advancement of his political beliefs and ideas is a form of constitutionally protected activity under the First and Fourteenth Amendments of the Constitution of the United States and the Constitution of the State of New Jersey." (Id., ¶ 18).
Thus, plaintiff's Complaint apparently asserts claims for: violations of New Jersey's Open Public Meetings Act; violations of due process, presumably under the fourteenth amendment to the United States Constitution; infringement of plaintiff's rights of freedom of speech and association under the first and fourteenth amendments to the United States Constitution and under an unidentified provision of the New Jersey Constitution, presumably article I, paragraph 5; unlawful retaliation in violation of the "Federal Civil Rights Act," 42 U.S.C. § 1983, and the "Laws against discrimination of the State of New Jersey," N.J.S.A. 10:5-1 et seq. (id., ¶ 11); and finally, violation of his "Common Law right to be free of retaliatory termination," (id., ¶ 5).1
The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367.
This action arises out of the Passaic County Board of Freeholders' termination of plaintiff as Assistant County Counsel after an election transferred control of the Board of Freeholders to a Democratic majority. Individual defendants Eagler, Gallagher, Scott and Cuccinello are the Democrats on the seven-member Board of Freeholders. They voted to discharge plaintiff over the opposition of the three Republican Freeholders.
Plaintiff asserts many loosely articulated claims, as discussed above. Defendants seek summary judgment as to the entire Complaint. Defendants deny that they violated the Open Public Meetings Act, the New Jersey Law Against Discrimination ("NJLAD"), and the New Jersey Constitution. Although they deny terminating plaintiff because of his party affiliation, they argue for purposes of this motion that doing so would not have violated his federal first and fourteenth amendment rights to freedom of speech and association. With respect to those claims, they argue, moreover, that the individual defendants are shielded from suit by qualified immunity. In addition, defendants deny that plaintiff had any protected property interest in continued employment that could give rise to a due process claim. They accordingly deny violating 42 U.S.C. § 1983. They do not specifically address plaintiff's claim that they retaliated against him in violation of his rights under the common law. (Id., ¶¶, 11, 5).
On December 3, 1997, the Republican-controlled Board of Freeholders reappointed Mr. Siss, a Republican, to a three-year term as Assistant County Counsel. . Control of the Board of Freeholders passed to the Democratic party on January 1, 1998 because of the November 1997 election of defendants Gallagher and Cuccinello. (Siss Aff., Mar. 16, 1999, ¶ 3).
On March 24, 1998, the Board of Freeholders passed resolutions to rescind Mr. Siss' three-year appointment as Assistant County Counsel and to terminate his employment. (Id., ¶ 4; Eagler Aff., ¶ 7; Pascrell Aff., Exhs. E, F). Mr. Siss was provided written notice of the March 24, 1998 Board of Freeholders meeting and advised that the Board was scheduled to vote on the two resolutions. (Eagler Aff., ¶ 8). His attorney submitted a letter objecting to the proposed resolutions and addressed the Board of Freeholders at the meeting. (Id., ¶¶ 9-10; Plaintiff's Br., Exh. C).
Plaintiff's Open Public Meetings Act claim focuses on an earlier meeting among at least some of the Freeholders and Mr. William Pascrell, the newly-appointed County Counsel. On March 6, 1998, Mr. Pascrell asked for Mr. Siss' resignation, telling plaintiff that he had met with the Freeholders and they had no confidence in Mr. Siss' ability to represent them. (Siss Aff., Mar. 16, 1999, ¶ 12). Mr. Siss claims that any such meeting violated the Open Public Meetings Act since Mr. Siss was not given prior notice of it.
Evidence has been submitted, mostly by plaintiff, as to whether plaintiff was terminated because he is a Republican or for other reasons. The Court will not address that issue here, since defendants seek summary judgment based on the argument that they could lawfully terminate plaintiff because of his party affiliation. In support of defendants' argument on that score, Freeholder Eagler explains that the Democratic-controlled Board of Freeholders charged County Counsel Pascrell with assembling a legal team that would assist the Board in achievement of the Board's policy goals, which he describes as, "in particular, the restructuring and modernization of County government." (Eagler Aff., ¶ 11). According to him, the Board terminated Mr. Siss because of "a lack of confidence in Siss' ability to dedicate himself to the achievement of the Board's policy agenda." (Id., ¶ 12).
According to Mr. Siss, the position of Assistant County Counsel is not a policy-making position in which political party affiliation is relevant. As Assistant County Counsel part-time for approximately five years, plaintiff primarily handled Sheriff's Department matters. He maintains, "I did not establish procedures and policies for the Sheriff," but states instead, that after procedures and policies were formulated by the Sheriff and his staff, plaintiff performed the "ministerial function of drafting ... documents" that incorporated them. (Siss Aff., Mar. 12, 1999, ¶ 17). More specifically, plaintiff states:
My work involved Disciplinary Actions; preparation of contracts where required; representing the Sheriff's Office in any disputes with any contractors; ... preparing competitive bid documents where required[; and] handl[ing] Department of Personnel appeals and hearings which had been referred to the Office of Administrative Law in Newark.
(Id.) He insists: "At no time in all the years that I served as Assistant County Counsel was I called upon to make any policy decisions or policy recommendations." (Id.) He states: "As Assistant County Counsel, I had no contact with the Freeholders nor was any policy agenda brought to my attention." (Siss Aff., Response to Eagler Aff., Mar. 16, 1999, ¶ 4).
Sheriff Edwin Englehardt, for whom plaintiff worked, states, similarly, that Mr. Siss did not "exercise any policy making functions, nor was he consulted on matters of policy." (Englehardt Aff., ¶ 7). Rather, according to Sheriff Englehardt, Mr. Siss' work "was related to matters such as reviewing contracts, prosecuting disciplinary charges, representing us in Department of Personnel referrals to the Office of Administrative Law and other routine legal matters that arose from time to time." (Id., ¶ 6).
Similarly, Republican Freeholder Walter W. Porter, Jr. states that "Mr. Siss's work did not involve him in politics or policy" and that "[p]arty political affiliation is not relevant to the performance of an Assistant County Counsel's responsibilities." (Porter Aff., ¶¶ 3-4). He notes that when Republicans took control of the Board of Freeholders 12 years ago, they retained the Assistant County Counsels who had been appointed by the preceding Democratic-controlled Board. (Id., ¶ 3).
Defendants contend that the position of Assistant County Counsel is a confidential, policy-making...
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