Chasin v. Montclair State University

A.2d 457 CHASIN, AND CROSS-RE PLAINTIFF-APPELLANT BARBARA UNIVERSITY, SPONDENT, THE STATE v. MONTCLAIR STATE VERNIERO, GEN ATTORNEY AND PETER JERSEY OF NEW ERAL, AND CROSS-APPEL DEFENDANTS-RESPONDENTS LANTS. June 1999.

Argued 1998—Decided October Dwyer, argued appellant for cross- Andrew W. cause and Schachter, respondent attorneys). {Reinhardt & Miller, General, Jeffrey argued cause J. Assistant Vemiero, respondents cross-appellants {Peter Yannotti, Jersey, Joseph attorney; General State of L. of the New General, counsel; Egar, L. Deputy Assistant Valerie brief). General, on the opinion of the Court was delivered GARIBALDI, J. interpretation provisions of the appeal

This involves the (“TCA”), -14-4, govern Tort Claims Act N.J.S.A. 59:1-1 to obligations indemnify to defend and its the State’s against Specifically, oblige does brought lawsuits them. the TCA Chasin, indemnify plaintiff, the State to defend and Barbara University, underlying in an suit that professor at Montclair State damages consider did not seek for tortious conduct? We also to follow whether Professor Chasm’s refusal advice justifies refusal to her. State’s Finally, requires we determine whether N.J.S.A. 18A:60-4 indemnify plaintiff. State to defend and

I. sociology teaches at Montclair State Professor Barbara Chasin University. Lloyd In the fall of James enrolled Chasin’s “Sociology Lloyd Rich and Poor Nations.” was a course on the Marine Reserves. Thirteen weeks into the semes- member of the ter, duty part Operation he was called to active Desert time, “A” average, At that had achieved an Storm/Shield. leaving quiz on a and the mid-term examination. Prior to based campus, Lloyd signed “Incomplete an Con- met with Chasin agreed make-up to take a final examination or tract” which he paper complete write a the course. Lloyd duty, Legislature the enacted L. 1991

While was on active (“Desert Law”), provides for ch. Storm which academic relief military in the Gulf The Act students called to service War. provides: New National or of the 1. A student who is a member of the Guard Jersey Forces of the and who is unable to States,

Reserve Armed United component higher at a institution of education a course or courses New Jersey complete in of the current United student is called to-active duty consequence because the or “Desert Gulf known as “Desert Shield” Nations action the Persian operation grade in course for which the student entitled to receive a each Storm,” shall be and all other academic require- a minimum of 8 weeks’ attendance has completed grade during to shall be based on the work up ments that completed period. time when the student was called to active service. return, grade award him a Lloyd requested that Chasin On his copy of the Desert Storm work and mailed Chasin a for his course gave Lloyd “Incomplete.” an On Octo- refused and Law. Chasin 14, 1991, University Provost sent Chasin a memorandum ber deny Lloyd grade: to urging that she reconsider her decision terms of I have asked that Mr. fulfill the incomplete believe you give will him an F. I or, contract entered into in December 1990 alternatively, you law____ change urge Our efforts to to read the attached you carefully copy signed legislation 19,1991. and the bill was into law on June were unsuccessful taken. as But, I concerns and understand the have you appreciate your position obligation of New we have an to the laws obey of the State Jersey legislature. agree. I will enacted hope you position expressed sympathy was clear. He The Provost’s obliged “obey” the Law. position, but felt that she was Chasm’s fact, give Lloyd grade. In Chasin Chasin still refused 25,1991, President, to Montclair State’s wrote a letter on October Reid, Irving attempt support. Although solicit his she D. an statute, position was consistent with the Chasin asserted her comply on her own belief that to with the premised that conclusion would be: Law as written assigning grade. This

to take and standardless action would arbitrary College an undermine the and of Montclair State academic validity credibility legislature I not believe that the New state intended such a Jersey institution. . do writing in the Persian result in this law. its attempt participants ‘protect’ legislature this insufficient attention to the distinct character law, Gulf by paid higher education. “I letter, language in Chasm’s do not believe New intended____” legislature paid legislature “the Jersey state ...,” position insufficient attention indicates that Chasin knew her law, contradicted the Desert Storm Law. Chasin understood the disagreed simply with it. 1991, Lloyd unsuccessfully sought Early in the fall of adminis- University Committee. trative relief Grade Grievance from Grey at the Deputy appeared DiMenna Commit- and, counsel, meeting, according organization tee’s to Chasin’s college imprint “tried to administration and Gener- [the light ... view on the Committee of a narrow view of the al’s] that, legislation.” ‘Desert Storm’ Chasm’s counsel also maintained injecting legal early stage proceeding “... a issue at this of the Committee, In prejudicial.” her statement to the Chasin did position claim that her was consistent with the statute. The however, Committee, expressed its its reluctance substitute judgment University upheld and' the Provost Chasin’s ruling. heavily on

The dissent relies the Provost’s failure to award grade supported interpretation as evidence that he of the Chasin’s (Stein, J., dissenting). statute. Post at 732 A.2d at 479 Procedure, however, Under Montclair State’s Grade Grievance changing grade ordering prohibited Provost is from a Profes- Instead, change grade. may only sor to the Provost recommend grade with that the be altered. Faced Chasin’s adamant refusal statute, acknowledge plain language may the Provost Lloyd’s upheld grade well have in an effort to influence position dispute and avoid further with Chasin. 1992, Lloyd Chancery July against filed suit in the Division

Chasin, University, University and the Provost of the compel comply Specifically, them to with the Desert Storm Law. sought equitable grade pursuant he relief —the award of a sought exemplary damages Law. from the Desert Storm He also “intentional, University Provost of the and Chasin for their wan- duly ton and malicious failure to abide enacted law of the Jersey.” receipt complaint, sent a State of New On Chasin request formal for defense and indemnification to the General, rejected request. who Chasin’s upon decision was “based the actions of Professor Chasin with regard pursu- to this matter General’s discretion representation.” ant to N.J.S.A. 59:10A-2 to refuse such Lloyd failed Chancery was dismissed because Division suit remedies, was sent to and the matter his administrative to exhaust hearing hearing. Before a Law for a the Office of Administrative held, the Administra- The initial decision of the case settled. was (“ALJ”) approving the settlement characterizes Judge Law tive compliance with L.1991 “seeking compel Lloyd’s petition as stipulation of settlement the decision nor the c.167.” Neither Lloyd grade, his damages. received but mentions a claim for grade that the was adminis- transcript annotated to indicate was pending exchange, dropped In the tratively awarded. Chasin, Provost, University. University and the against the claims TCA, pursuant Immediately after the settlement and for Indemnification. Attorney General a Demand Chasin sent July Attorney respond. In Chasin filed The General did General, Jersey, Attorney and against the of New suit State $12,216 in University seeking for Montclair State reimbursement Chancery defending incurred and Administra- fees she alleged Lloyd’s admin- complaint, Chasin tive actions. her damages. and petition sought compliance with the statute istrative petition Attorney expressly answer denied that The General’s summary sought any damages. granted The Law Division Chasin function of the judgment. specifically court found that the The employee a state was Attorney provide was to advice that General further concluded that disregard. free to follow or The court $12,216 her good had acted in faith and awarded Chasin attorney’s for reconsideration of the fees. The State moved an additional award of fees to cover ruling, and Chasin moved for action. The court denied the the cost of the indemnification $10,000 motion, in attor- granted but Chasin an additional State’s ney’s fees. plenary for a Division reversed and remanded

hearing to determine the circumstances under which rejected provided advice to Chasin. The court both employee is free to disre- Division’s conclusion that a state Law conten- gard legal position, and State’s General’s tion that Chasin was not entitled to indemnification under Lloyd’s compensatory damages TCA because suit did not seek tortious behavior. The court found that the General’s legal position binding on state the TCA applied framework, equitable to actions for relief. Within that court knowingly disregarded focused on whether Chasin the At torney advice, therefore, General’s scope acted outside the employment. opinion her suggests willfully that if Chasin disregarded advice, her actions would fall scope employment outside the of her and the State would not be required her. The court deemed the record insuffi cient on this issue and ordered a remand. Both Chasin’s and the granted. General’s Petitions for Certification were (1998). N.J. 707 A.2d 152

II. A. Legislature The intended the TCA to reestablish “the general immunity public rule of the liability entities from injuries Odom, 395, 402, to others.” Brooks v. 696 N.J. A.2d 619. The supersede patchwork TCA was also intended to statutory provisions providing for the defense and indemnification employees. (repealing of state See N.J.S.A 59:12-2 all statutes TCA). TCA, therefore, provides “inconsistent” with the The Attorney duty unified scheme under which the to defend indemnify employees must be evaluated. duty N.J.S.A. 59:10A-1 establishes the General’s basic employees: to defend state [in 59:10A-2], shall, N.J.S.A General Except provided upon of an or State, former of the for the defense of

request employee employee provide brought against action such State or former State on employee employee account of an act or omission of his scope employment. provides may N.J.S.A 59:10A-2 that General provide employee refuse to for a defense state under N.J.S.A. 59:10A-1 if he determines that: within the or act or omission was not scope employment;

a. willful misconduct or fraud, to act was because of actual b. the act or failure actual or malice; proceeding create a General would of the action or c. defense or former the State and the employee employee. conflict of interest between pro- any other action or provides “[i]n 59:10A-3 that may including proceedings, the ceeding, criminal employee or of a State former State provide for the defense in the representation that such best employee, if he concludes added.)1 (emphasis interest State.” duty duty indemnify employee parallels an State’s requires indemnify employ- 59:10-1 the State to defend. N.J.S.A. provided. specifically That section for whom a defense is ees “punitive exemplary damages or exempts paying from the State of a crime.” Ibid. If the damages resulting from the commission employee, a state the State is Attorney General refuses defend if only employee “the act or omission required to judgement claim or was based occurred within the upon which the ... fails to ... scope employment of his State establish fraud, 59:10— actual actual malice or willful misconduct.” N.J.S.A employee qualifies provision, If under that the State is 2. an costs, including obliged employee for all reason- to reimburse Thus, employee provided if attorneys’ even an is not able fees.2 TCA, employee may attor- with a defense under the recover neys’ fees in limited circumstances.

B. language according must construed of a statute meaning, long meaning comports as that with the plain to its so Maglaki, v. 434- legislative statute’s intent. Merin N.J. (1992). Additionally, 599 A .2d 1256 “whatever the rule construction, [statutory] goal it is subordinate to the of effectuat- 1 designated 59:10A-1, 2 and 3 will be as TCA defense N.J.S.A. provisions. 2 designated and 2 will be as TCA indemnification N.J.S.A. 59:10-1 provisions.

427 plan may gathered it from the enactment ing legislative and context.” State v. light history, purpose, in full of its read Gill, (1995) v. 1, 9, 140 N.J. State (quoting 656 A.2d 1246 Haliski (1966)). 441, 444, 221 The limits of the TCA N.J. 47 A.2d 521 to defense and indemnification are derived provisions that relate language history plain consideration of both their and the from they and context within which were enacted. action,”

N.J.S.A. 59:10A-1 mandates “any a in unless defense N.J.S.A. exceptions applies. excep- of of 59:10A-2 Those one when the tions authorize the General to refuse defense employment, complained scope act of falls outside the consti- fraud, misconduct, malice,” willful or actual or cre- tutes “actual ates a conflict of interest. N.J.S.A. 59:10A-2. provision The third defend, 59:10A-3, N.J.S.A governing duty vests the Attor- “in ney employee, with the to defend a state General discretion including proceedings.” any proceeding, other action or criminal of N.J.S.A. Appellate plain language Division read the action,” “any require regardless 59:10A-1 to a defense in of the N.J.S.A. remedy sought. The court reasoned that 59:10A-3 mere ly right to defend an preserves General under N.J.S.A. exception employee specific cases where a however, applies. right, preserved by That the use of 59:10A-2 discretionary “may” “shall” in rather than the directive may provide N.J.S.A. 59:10A-2: “[t]he refuse added). (emphasis ...” Under the for the defense TCA, superflu 59:10A-3 is Division’s construction of construction that ous. It is a well-established canon legislative or in a which sacrifices should not be read isolation way provision as a a statute is to be Rather, what to be the scheme the statute whole. appeal's integrated in an without undue on word interpreted way emphasis particular if harmonizes all of its so as to do and, manner which parts phrase possible, justice meaning. to its overall 368, [Zimmerman v. Clerk Municipal of Tp. Berkeley, N.J.Super. Light (App.Div.1985) (citing v. Power Co.,

A.2d 62 Alexander New & Jersey (1956)).] 122 A.2d339 N.J. reference 59:10A-1 therefore must be understood with N.J.S.A. statutory and -3. scheme to N.J.S.A. 59:10A-2 Given Act, Attorney 10A-1 mandates that title of the N.J.S.A tort; “any brought in 59:10A-2 defend action” N.J.S.A General representation of tort cases specifies three instances when such General; Attorney 59:10A-3 may refused and N.J.S.A. to defend cases vests the General with the discretion Because N.J.S.A. 59:10A-3 not covered N.J.S.A 59:10A-1. action, including proceed- “in criminal grants discretion other added), to ings” (emphasis that discretion cannot be limited civil actions. proceedings, criminal but must include some requires to state N.J.S.A 59:10A-1 General defend against liability, civil claims left to N.J.S.A. employees tort so the remedy damages. other than tort 59:10A-3 must seek history of the TCA demonstrates that it was intended only seeking damages apply to civil actions for tortious conduct. Report Sovereign General’s Task Force on (Task (1972) Immunity Report) was to the Force submitted Legislature pre-cursor Report The Task Force TCA. sovereign on “the ‘selective abolition’ of the immu focused State’s Kimmelman, nity ‘in contract and tort.’” Helduser v. 493, 508-09, N.J.Super. (App.Div.1983). 467 A.2d 1094 The Task Report Force recommended that the General defend employees against liability arising “civil within the state scope employment.” Report at 15. The Task of their Task Force however, Report, Force focused on the recommendation ... all provide should for the defense of “[t]he negligence.” major “A State sued for Id. 16. premise” proposed provide recovery for TCA was limited a claimant’s “economic loss.” Ibid. Numerous references to suits loss, negligence, liability, liability for civil economic and limited Report only sought require establish that the Task Force indemnity seeking damages defense and in civil actions for tor language proposed accomplish goal tious conduct. The adopted by Legislature By 59:10-1 to -10A-6. sections, Legislature manifested its adopting proposed only compensatory claims for apply that the TCA to civil intent Limiting duty to to civil damages tortious conduct. defend underlying damages for tort is also consistent with the claims “chary interpretation of a legislative intent that courts make entity’s liability” that is called for under the public exposure to Brooks, 402, legisla supra, at 696 A.2d 619. The TCA. 150 N.J. seeking damages that civil actions tort are tive intent establishes provisions mandatory defense and indemnification covered meaning lan interpretation gives an to the of the TCA. Such including guage proceedings” other action ... criminal “[i]n in A 59:10A-3.3 contained N.J.S. prior comports

This construction with defense and indemnifica distinguished tion eases that tort actions from other suits. See 630, 633-34, (App.Div. Napoleon, N.J.Super. re 303 697 A.2d 574 Kimmelman, 503, 1997); supra, N.J.Super. 191 at 467 Helduser v. 632, supra, N.J.Super. at 697 Napoleon, 1094. In In re 303 A.2d 574, prison, sought a Napoleon, A.2d the Medical Director at state Attorney in and indemnification from the General defense hearing Jersey suspension or revocation before the New license Attorney rejected Examiners. The General Board of Medical indemnification, stating that it Napoleon’s request for defense and provide General to inappropriate would be for the professional in that she had initiated before the defense a ease 633, Moreover, at 697 A.2d 574. General board. Id. allegations proceedings and did not that the nature of the stated provide a defense under N.J.S.A. obligate General to indemnify Napoleon 59:10-1. or -3 and to under N.J.S.A. 59:10A-1 Ibid. denial, observing that upheld “[t]he Division of actions filed accordance

duty to defend arises the context 3 officers to mandate indemnification for state In 1989 the TCAwas amended directly act or omission arose out of and was in criminal actions when the duties, the action is dismissed exercise of official and when related to the lawful disposition 59:10-2.1. favorable to the officer. or results in a final Act, 13-10; Jersey

with the New Tort Claims N.J.S.A 59:1-1 to is, duty present General has a to defend 633-34, employees only tortious acts.” Id. at former State for added). (emphasis proceeding A.2d 574 The court noted that the Napoleon damages for against was not a civil action but rather “disciplinary hearing” appropriate licensing authority. before the 697 A.2d 574. The court also observed that indemnifi- Id. properly provisions the indemnification cation was denied because only triggered damages are “for awarded a civil action for conduct,” Napoleon tortious and because was not entitled to a defense, necessarily eligible then he was not for indemnification. Ibid. Kimmelman, supra, N.J.Super.

Helduser v. 467 A.2d appeal brought suspended 1094 was a consolidated two mem- police charged bers the state who were with crimes. Both men acquitted requests were thereafter submitted requests reimbursement their fees. Their appeal, argued were denied. On Helduser that N.J.S.A. 59:10A-1 requires provide for a defense of state employee any brought against employee action unless a specific exception applies. under N.J.S.A. 59:10A-2 Id. at 59:10-2, asserting A.2d 1094. Helduser also relied on N.J.S.A. it mandated for his counsel reimbursement fees when the defense, provide General refused to because the State failed to show that his conduct was motivated actual fraud or malice. Ibid. officers, affirming

In the denial of indemnification for the history Division relied on the of the TCA: language As stated the -2, N.J.S.A 59:10-1 and and the statement previously accompanying seg. the bill that became 59:10A-1 et as N.J.S.A well as other legislative about which more will be said all indicate that history, shortly, indemnification 59:10-1 and -2 N.J.S.A to civil actions provisions apply only for damages based ari tortious conduct. N.J.S.A 59:10A-1 upon employee’s Similarly, govern -2 were intended to General’s to defend state duty in civil actions. The reference in 59:10A-3 to N.J.S.A other action “any proceeding, including proceedings,” criminal was the Attor- simply preserve or furnish a and inherent authority represent General’s prior statutory ney defense for state employees. added) (emphasis ] [ Id. 467 A.2d 1094 at 59:10A-3, court further observed: discussing In proceeding” a catch- other action or was simply the reference to “any More likely, including arising civil actions not Act, under the Tort Claims all to cover actions seeking damages, in which the General should actions, as well as criminal when the to furnish a defense for a state employee have discretionary authority state interest would be served. 1094] [ Id. 508, 467 A.2d proposition Thus, stand for the Napoleon and Helduser both obligation to defend that the seeking damages for civil actions only in the context of arises mandatory defense and agree conduct. We tortious only civil actions. The provisions apply to those indemnification Attorney General’s any other action is left to the defense of discretion.

III. case, sought primarily in Lloyd’s underlying suit In this encompassed by type are not junctive relief. Claims of this unaf This conclusion is mandatory provision defense of the TCA. damages request exemplary which by Lloyd’s ancillary for fected sought relief after his suit dropped when he administrative he case, Lloyd’s request Chancery by the Division. dismissed nature of damages alter the fundamental exemplary does not 433, 450-51, Bancorp., 116 N.J. v. Horizon his claim. Shaner Cf. (1989) nature of the (observing that we consider the 561 A.2d 1130 remedy sought in determin controversy well as the underlying historically primarily of action has been ing whether the cause nature). on equitable claim into attempt to shoehorn Chasin’s indemnification

In an the-TCA, Lloyd’s against Chasin was a argues that suit the dissent (Stein, J., 456-57, dissent- 732 A.2d at 478-79 tort action. Post- Division, handles Chancery in which ing). Lloyd filed suit initial decision and the equitable claims. The ALJ’s primarily any damages. claim stipulation of settlement do not mention expressly answer in this case denies that petition sought damages. Implicitly acknowl- the administrative Lloyd’s edging equitable, claim was Division “any” coverage civil action. Chasin extended TCA Court; position on that in her submissions to this nowhere relied suggest Lloyd’s does she claim sounded tort. Neither the parties nor court involved this action ever considered Lloyd’s anything equitable; claim as other than the dissent is utterly taking unsupported position. alone in this

Because was not entitled to a defense under Chasin N.J.S.A 59:10A-1, remaining she also cannot receive indemnification. The provisions similarly inapplicable indemnification the TCA are indemnify requires this case. N.J.S.A. 59:10-2 the State to an employee when the refuses to defend action General an defense, employee where N.J.S.A. 59:10A-1 entitles the to a employee demonstrates the action taken was within the misconduct, scope employment, and not the result of willful however, provision, applies actual fraud or actual malice. That only underlying damages. when the claim a.civil action for proof required parallels excep- for indemnification two first provision, tions to the defense listed N.J.S.A. 59:10A-2. words, requires other the statute the State to an employee exceptions who demonstrates that the first two apply, N.J.S.A. 59:10A-2 do not and whom the General category employees refused to defend. That would include exception, those refused defense under the third a conflict of interest, mistakenly and those refused defense because the erroneously applied excep- General one of the first two tions. summarize, requires

To N.J.S.A 59:10-2 to in State demnify employee an in a N.J.S.A. 59:10A-1 action that TCA, therefore, fails defend. The indemni only underlying fies refused a defense when the claim damages seeking Lloyd’s is a civil action in tort. Because claim relief, scope injunctive the of sought it was outside against Chasin require the does not the Accordingly, 59:10-2. TCA thus, Chasin, require cannot the Attorney to defend and General indemnify State to her.

IV. employee that a Appellate Division concluded state is Attorney have defend her seeking to the General agree. Attorney the General’s advice. We disregard not free to Therefore, considered under the even if Chasin’s claims could be TCA, reject, disregard of the argument we her willful an right any forfeit to defense and legal position would General’s provided, is the TCA In cases where defense indemnification. control” the expressly grants the General “exclusive “cooperate fully requires employee to with representation and the 59:10A-4. The official the defense.” N.J.S.A General’s provision plain make it to the comment related indemnification advice to Legislature the the intended interest “In order insure that the State’s will employees: bind employee protected it that a State shall adequately provided fully cooperates ... he indemnification unless not be entitled to Attorney General.” Comment provided by with defense discretionary provision Similarly, the defense to N.J.S.A. 59:10-3. employees in state defend authorizes seeking damages when a defense or civil cases not criminal cases 59:10A-3. of the State.” N.J.SA is “in the best interest University provided Chasin with Provost Both urged the Law. Provost also copy Storm Desert carefully copy of law.” After attached to “read Professor expressing Law University opposed the that the had noting that “as position, the Provost stated sympathy for the Professor’s obligation have an Jersey we the State New you I legislature. hope will obey laws enacted University agree.” President dated October In a letter to position with the that her was “consistent” Chasin asserted 434' said,

Desert Storm Law. Her also do not letter “I believe Legislature require grade [to intended of a award without law____ testing] writing further specifically this The law grade requires upon that the be based the work which the student completed up had when time the student was called Lloyd provided active service. Mr. has not evidence as to how he completed has that work.”

Despite contrary, her to the arguments assertion Chasm’s own position demonstrate that her not was with Des “consistent” notes, sought ert Storm Law. As the dissent Chasin of “some form [the demonstration from student] he has learned the material a paper.” ... take-home final or Post at A.2d at (O’Hern, J., dissenting). Paradoxically, Chasin asserts com pleting requirement this not would constitute additional work. Lloyd if provided Even could have a sufficient “demonstration” studying, without substantial he would still have been forced to produce a paper required not logic of other student. It defies such paper to contend that a exam take-home would constitute additional work. sought Lloyd’s grade

Chasin to base produced on work after service, Lloyd was to called active because she did not “believe” Legislature that the it meant what said. In her Statement to the Committee, Grade Grievance Chasin contended “it would be a violation of accepted principles assign academic grade to a Mr. to Lloyd freedom, case, ...” and that “[a]cademic in this means that faculty has right, according member to long accepted procedures, deciding of how students shall in a evaluated Although again Lloyd course.” Chasin stated that produced had having no evidence of mastered information covered between departure, the midterm his she did not requir- re-assert that ing such evidence was with contrary, consistent On Law. Committee, willing Chasin informed “I am to excuse Mr. Lloyd from assignments after 4Dec. until the end of the semester flexible____” I my very ... proposal consider reasonable and apparently “excusing” Chasin assignments considered from of discretionary, part a “rea- undisputedly covered the Law aca- proposal. She relied on concerns for sonable and flexible” support to political objections to the Law her demic freedom and views, those grade. Although she is to refusal award a entitled contrary express position it that Chasin’s was was evident language Desert Storm Law. of the of the equally

It clear that Chasin aware required her award that the Desert Storm Law General’s belief alleges Grey that he grade. Dimenna Deputy informing him of Chasin’s counsel had several conversations with appeared Dimenna also her duties under statute. A

meeting University’s Grievance Committee. letter Grade Becker, Catherine from Chasin’s counsel Professor Professor Teachers, College President of the Montclair State Federation imprint appeared hearing at the and “tried noted that Dimenna Committee as what the administration’s] [sic] view on the [the light a narrow view the final determination should be in Cha-, admission, legislation.” ‘Desert In view such Storm’ an Attorney she unaware the General’s sin’s contention that was In a interpretation Law is to credit. of the Desert Storm difficult obviously at odds employee’s a state actions are situation where statute, Attorney language and the express the of a valid with duties, cannot be employee the of her that advice General informs advisory. considered suggestion that Chasin was no merit the dissent’s

We find Office, Attorney the another asser- somehow misled General’s (Stein, at A.2d at 482 tion that never made. Post Chasin J., objective reading that An of the record discloses dissenting). Lloyd give grade, she knew of from initial refusal to his Chasin’s Law, simply refused to requirements of the the Desert Storm 458-59, 433-35, 421-23; 732 A.2d at 465-66. follow them. Ante at Likewise, suit, early as as the that filed his it is clear before Attorney Grey Meeting, Deputy General Grievance Committee position inconsistent with Dimenna Chasin that her advised Although hindsight 459. it Law. at 732 A.2d at the Ante Deputy Attorney would have been better if Dimenna General had the position writing communicated State’s to Chasin and the Committee, Grievance all parties, including and her Chasin attorney, position. understood reading the State’s A fair of the Attorney record discloses Chasin was informed of the Gener- legal prior position Lloyd’s filing al’s his suit. She had suffi- change cient her position time to on the Desert Storn Law but Indeed, during refused. proceedings, time Chasin could have withdrawn from the suit. She chose not. knowing disregard

Chasin’s express failure to heed the language of a valid position Attorney statute and the right General forfeits her employee to indemnification. If a state disregard is legal position free to General and indemnified, still be then the exercise General’s severely discretion employee constrained. An could force the State to fund a rejected defense that the General adverse to goals state interests. That result would subvert the Legislature. advice of must binding considered on employees.4 state We affirm employee Division’s conclusion that an advice, must follow but because we con- clude that Professor Chasin was not entitled to indemnification TCA, under no necessary. remand is

V. Chasin asserts N.J.S.A 18A:60-4 also requires State her legal expenses. for her pro- That statute vides, part: in pertinent 4 right We observe, however, that we do not decide the to indemnification of disregarding legal who, an refused indemnification employee initially the General, of the in a position court action that finds prevails to be correct and employee's position to be position

wrong.

437 brought against be ... civil has been or shall any professor action any Whenever higher teaching institution of education ... other in a capacity by employed arising of of out of and the course the performance ... act or omission for any all costs of the state shall defray of such office, employment, duties position including ... defending fees and expenses reasonable counsel action, such TCA. The prior enacted N.J.S.A. 18A:60-4 was 1994, 1, July as a expressly repealed statute on Legislature 1994, of L. c. Higher Restructing Act 1994. part Education does not 48, § of 18A:60-4 express repeal N.J.S.A. 308. That However, because claim for indemnification. eliminate Chasin’s impliedly repealed by passage was N.J.S.A. 18A:60-4 1972, claim is eliminated. TCA in Chasin’s 294, 305-06, State, A.2d by 147 N.J. Kemp Wright v. are (1997), preexisting whether statutes we addressed by may impliedly expressly repealed repealed in TCA case, preexisting In that we held that enactment of the TCA 26:11-12, immunity statute, granted good faith which impliedly repealed agents, of health and their county boards further found that the in 1972 of the TCA We the enactment inconsistent 1976 was not express repeal of N.J.S.A 26:11-12 impliedly repealed holding statute had been with that that TCA in 1972. conclusions, “Legislature’s we

To those examined reach preexisting statutes.” regarding the effect on intention TCA’s 59:12-2 language of N.J.S.A began by examining Ibid. We that provides: Act] [the to the extent are, inconsistent with Tort Claims

All acts or acts parts including without limitation: such inconsistency, repealed, (C. 40A:12-26). c. s. 26 P.L.1971, N.J.S. 18A:20-35 38A:4-9

N.J.S. 38A:4-10

N.J.S.

R.S. 53:1-22 59:12-2]

[N.J.S.A. significant 59:12-2’s list “is that N.J.SA noted that it We Id. rather than exclusive.” expressly repealed statutes is inclusive limita- the words “without A.2d 715. We considered 438 language “implied

tion” and found that that repeal authorized the of all unenumerated statutes that are ‘inconsistent’ with the [Tort Claims That specifically Act.]” a statute was not enumerated repealer provision does possibility not foreclose the that it was 305-07, repealed. (citing Id. at 687 A.2d 715 numerous cases pre-existing where TCA statutes not enumerated N.J.S.A. TCA.) repealed by 59:12-2 were the enactment Although of repeals favored, implied subsequent not if are is “fatally act prior act, prior inconsistent” with the act yield. must Id. at 306-07, 687A.2d 715. legislative history supports of 59:12-2 N.J.S.A the State’s

position “fatally is N.J.S.A. 18A:60-4 inconsistent” with the legislative history TCA. That discloses that TCA was intended to patchwork provisions eliminate the of governing general liability employees. Report of state The Task Force cited statutes, N.J.S.A 18A:60-4 and number of pre-TCA other apparent pattern observed is immunity “[i]t that the established completely uniformity lacking statute to fails take into many subjected consideration other State type liability against which the above have statutes been directed.” Report Task Force 37-38. disagree

We with Chasin and the assertion the dissent that N.J.S.A. 18A:60-A is consistent with the General’s dis cretion under N.J.S.A. 59:10A-3. Post at 732 A.2d at 472 J., (O’Hern, dissenting). In particular, the dissent relies on previous precedent preserving pre-TCA obligating statutes local indemnify employees. authorities local See v. Bower Bd. of Educ., (1997) 423-31, 149 N.J. 694 A.2d 543 (affirming 18A:16-6.1); indemnification under N.J.S.A 18A:16-6 and Lamei Educ., ro v. N.J.Super. 585, 589-91, West New York Bd. (Law A.2d 377 Div.l975)(rejecting implied repeal of N.J.S.A. TCA). 59:10-4, 18A:16-6 Those eases addressed N.J.S.A. grants which power local indemnify authorities the local em ployees. requiring Statutes local authorities to local not officials do conflict with granting power statutes to indem- “not ... underlying 59:10-4 is nify. stated intent N.J.S.A. the State’s traditionally are considered indemnify persons who indemnifi- position Legislature it is the employees but encouraged.” Comment public employees should be cation of all Thus, mandatory local indemnification 59:10-4. TCA, the which by municipality does not conflict with level encourage indemnification sought responsibility for to transfer employees. municipal of hand, commends the

On other N.J.S.A. 59:10A-3 the seeking not employee in civil actions to defend a state General of in “the best interest the and criminal cases when damages requir- fundamentally inconsistent with That is State.” standard professors at universities ing state the General defend Legisla- statutory the mandates of knowingly disregard the who Chasin, cases cited statutes involved the ture. Unlike the TCA, “fatally with the because 18A:60-4 is inconsistent” N.J.S.A. professor at a state to defend a requires it the “in injunctive that not relief are university, even actions for in. interest the State.” best merely requires that N.J.S.A. 18A:60-4

The dissent maintains fees, “fatally inconsistent” and is not of counsel reimbursement (Stein, J., 462, dissenting). A.2d at 481 at with the TCA. Post misreading of statutes. a critical both position.represents That of counsel only reimbursement requires not 18A:60-4 N.J.S.A. professor fees, harmless” a requires the “save also State but inconsistency these between two “any loss.” The from financial Further, is the contention requirements self-evident. General’s law even involve

education “does 18A:60-4’s use on N.J.S.A. appears to be based office” 462, Post 732 A.2d defray costs ...” “the shall- all words State (Stein, provi- J., dissenting). Nearly every indemnification at 481 one would contend that language; similar no sion in the TCA uses office.” not “involve provisions those do (“the See, provide indemnifica- State shall e.g., N.J.S.A. 59:10-1 (“the reimburse tion____”); pay shall 59:10-2 State N.J.S.A (“the him____”); N.J.S.A 59:10-2.1 State shall reimburse the officer____”).

Further, Kemp, of N.J.S.A. express repeal as in the later 18A:60-4, Higher 1994, Restructuring Education Act N.J.S.A 18A:60-4 was holding consistent with our implicitly repealed legislative history Higher the TCA. The of the Edu ¶ 48, 307, L. Restructuring cation Act of c. effective 1, 1994, July 18A:60-4, N.J.S.A. repealed which illustrates this. The Senate accompanying Education Committee’s Statement Restructuring specifically Act addresses a number of statutes and remaining repealed then states “[t]he sections are those statutes longer operative.” which no Because no mention of N.J.S.A are appears 18A:60-4 prior passage, Legislature to that seems to N.J.S.A 18A:60-4 was “no have believed that longer operative.” legislative Chasin reads history differently, concluding N.J.S.A. 18A:60-4 was statute, repealed replaced by to be a new 18A:3B-6(h). provides That statute that each state university or college shall within elect act days it, effective date this whether and its shall be in all employees, such matters the represented General. If by Attorney the institution not to elects be the it represented by General, shall be considered and its considered of a sue and employees be sued for employees entity the “New the Tort Claims Act” The purposes institution shall Jersey only. in that circumstance to its

required with defense and indemnifi- provide employees cation consistent with the terms and conditions the Tort Claims in lieu of Act the defense and indemnification that such would seek otherwise and be employees entitled to from the General. 18A:3B-6(h) [N.J.S.A ] Legislature’s Chasin replace reasons decision to N.J.S.A. 18A:60-4 with a comparable provision against militates the conclusion repealed by that the statute was the TCA. The new not, however, Instead, replace statute does the old it one. binds University either the General or the to defend and TCA, indemnify employees required to and by the extent N.J.S.A. 18A:60-4. If correct, reasoning Professor Chasm’s were comparable provision duty would have indemnify defined the to with a reference to N.J.S.A. 18A:60-4 and not the TCA. Instead, Legislature suggests that believed statutory scheme this new required a inoperative to the extent it 18A:60-4 N.J.S.A. by TCA. The new statute was defense not countenanced autonomy into the defense and intended to introduce measure employees pre- state universities and their indemnification of not meant to right seek outside counsel. It was serving the to Thus, reference to duty indemnify employee. an alter the to 18A:3b-6(h) supports the conclusion that the TCA N.J.S.A. find inoperative. We Legislature 18A:60-4 viewed N.J.S.A 18A:60-4 duties under N.J.S.A. ample evidence that the State’s implicitly repealed TCA are inconsistent with the were indemnify Accordingly, obligated is not the State statute. pursuant to 18A:60-4. Chasin

VI. protect state Legislature intended TCA performed damages resulting negligent for from acts claims from Thus, duty to employment. during the course of their State’s employee is limited to civil actions an defend damages conduct. decision compensatory for tortious seeking is within the represent employee in other action an disregard An for employee’s General. discretion any duty to indem position obviates underlying was not a nify Chasm’s suit employee. Because to a defense under damages, she was not entitled civil claim obligation part on the 59:10A-3. There was no N.J.SA provide a defense. Once defense denied Attorney General to tort, right there is no does not arise in an action that Helduser, supra, 59:10-2; see also indemnification. N.J.S.A 506-07, A.2d 1094. N.J.Super. to indemnifi- Chasin is not entitled conclude that Professor

We judgment 18A:60-4. under either TCA N.J.S.A. cation in accordance affirmed and modified Appellate Division is of opinion. with this

O’HERN, J., dissenting. I deny find it unusual that the Court strain should so hard to legal representation professor to a of our at one State universities in connection with a against student’s claim her. I have a sense implicit that there is in the Court’s decision a determination it that an unpatriotic requested grade act to award the ato veteran of the 1991 Persian Gulf At glance, War. first the teach- position to appear er’s does conflict with the 1991 Desert Storm Law, 1991, L. c. analysis, 167. On closer Division found, given explain she be a hearing position. should to her record, read, fairly strongly suggests that Chasin Professor acted did, good faith. If she then for the Court to sustain the General’s denial indemnification her counsel fees protection Legislature undermines the intended to be provided to State sued because the faithful discharge public of their duties. say government

We often must “turn square corners.” Borough Plains, F.M.C. Stores Co. v. Morris 100 N.J. (1985) (citation omitted). 495 A.2d 1313 If metaphor may a mixed forgiven, corners; be more State did here than cut rather it moving kept goalposts prevent in order to this teacher from obtaining reimbursement for legal fees that she incurred in vindicating proper performance her public of her duties. First the represented State to Professor Chasin she would able to legal expenses recover her under N.J.S.A 59:10-2 of the Tort (TCA), 12-3, Claims Act 59:1-1 long so as she was not guilty of willful misconduct. Then she after had incurred legal expenses, the State her rights told that she had no under the TCA, entirely discretionary but that it was whether the provide General should Finally, her a defense. when Higher Act, N.J.S.A 18A:60-4 the Education N.J.S.A. 18A:60-i -15, appeared provide parallel indemnity form of to that TCA, argued under the the State that 18A:60-4 had been impli edly repealed. Except require hearing on the issue of willful misconduct, accept did not the State’s the Division judgment. arguments. I would affirm its

I that because to indemnification under N.J.S.A 59:10-2 Professor Chasin is entitled the to her before she incurred what the General’s office is Attorney represented expenses. employees suggests that regard rights public the of A fair renege on of such conse- employers promises should not public denying Attorney August 1992 letter quence. of on the actions stated: “This decision based representation Chasin____” addition, the that there In letter recited Professor Attorney a of interest if the question serious of conflict would be a the The letter represent to State. were both Chasin General determination, Professor light “In of this whether concluded: by the State will be to indemnification Chasin will entitled of N.J.S.A. 59:10-2.” provisions the governed if for tortious conduct N.J.S.A provides 59:10-2 indemnification complained or that the act omission employee establishes to scope employment and the State fails of the occurred within employee or failed act because that “acted establish fraud, willful misconduct.” actual malice or actual that in this case does not establish It is that the record certain fraud, actual malice the result the teacher’s actions were course, has public employee I a agree that misconduct. Of willful and, indeed, that duty cooperate with the General a General, public employee, agrees to defend once the representation. employee’s has exclusive control over General agree employ an I therefore S.A 59:10A-4. N.J. wrongfully disregard advice of may willfully or ee however, not, employ mean This Attorney General. does advice of an General must follow the incorrect ee right indemnification. expense forfeiture of her opposition its to Professor Chasm’s motion to be indemnified incurred, for the fees that she had General by Deputy Attorney an stating: furnished affidavit obliged grade I indicated Professor Chasin was that law to award on the he basis work the course the date he was called to completed grade]. active Gulf Persian Conflict his mid-term exam It duty [presumably that Professor could not that do my Chasin additional opinion require course____ grade work for a the Professor Chasin refused to conform to the law as the Office. interpreted by General’s appears General’s office to have misunderstood position. Professor Chasm’s sought What she was not additional work, stated, but as she of [the student] some form demonstration from that he has learned the material [from of the date his mid-term exam on November 1 until the he date that left for 4]. service on December I offered him military have the choice of a take-home final discussing or a material the covered between the midterm and paper Dec[ember]

4[ ]. professor may a appear to be to stickler have insisted on grading the student based on this work apparently but she and he agreeably had duty. discussed this before he for left active fact, both professor signed “Incomplete and student had an Con- 1990, agreeing tract” in December that the student would com- plete a make-up either final paper covering examination or a taught material from the of date the mid-term examination through day professor’s last position student’s of class. The does appear totally not to arbitrary, especially be unreasonable or that considering the Desert approved Storm Law was not until 19,1991. June settlement, to stipulation

Pursuant grade approved of by Higher of Chancellor Education to be awarded to the veteran course, Sociology for Nations, of Rich and Poor Fall Law, under the Desert upon Storm was based his attendance for 4,1990, the first thirteen of weeks the course until December completion his of during the examinations administered the first eight However, of University, weeks the course. it was the teacher, that grade” was to issue an “administrative with that least, transcript. very be, notation on his At the there should Division, required by hearing to determine wheth- understanding or not of the law was correct er Professor Chasm’s having penalized pursued be her or whether she should understanding different from that of the to a determination Attorney General. years, plaintiff attorneys’ incurred fees

For four and one-half position plaintiffs entitle reliance on governed would be ment reimbursement State permit gross 59:10-2. It would be breach trust to position. Pangborne its & renege now to on See W.V. State 561-62, Jersey Dep’t Transp., v. New 116 N.J. Inc. Co. (1989) department’s clearly (holding failure to deal A. 2d implied duty limitations statute of issue constituted breach of with ofBelmar, dealing); Borough 14 N.J. good Vogt faith and fair v. (1954) 195, 205-07, 101 (holding estoppel may invoked A.2d 849 compensation against municipality promised benefits workers’ wrong injustice). prevent volunteer manifest firemen II if the offer reimbursement Even permitted repudiate rights against akin to a claim TCA, the the claim Professor Chasin was civil under right. entitling her to a under the TCA as a matter of defense its appeal In its Civil Information for Case Statement Division, Attorney only one Appellate the office listed judgment plain- trial challenging basis for the court awarded attorneys’ fees: “A tiff indemnification and reimbursement attorneys’ fees employee not entitled to State is reimbursement 18A:60-4 when the pursuant 59:10-2 or N.J.S.A. legal comply is she did not with the advice employee sued because Midway through appeal, the four of the General.” requested years indemnification for one-half after Chasin lawsuit, incurred the State asserted costs as a result arising of her is sued in a civil action out employee when State employment, entirely it within General’s discretion is indemnified if the employee shall be to determine whether injunctive This only exemplary damages seeks relief. action true, contends, good employee in even if the acted is State 446 completely

faith and is position. vindicated in Appellate her correctly perceived Division the flaw in argument: the State’s [T]he Tort Claims Act was enacted in to the selective abolition of the response sovereign State’s in contract and tort. Helduser v. Kimmelman, 191 immunity (App.Div.1983). N.J.Super. 467 A.2d 1094 508-09, “[blecause Further, state although subject protecting were to civil employees the State liability was immune, against goal____” them civil was Id. liability considered an important logical distinguish A.2d 1094. There no basis to claims where compensatory damages sought damages sought. are and claims where are exemplary Employees need the same security both situations, Thus, Division read N.J.SA. 59:10A-1 as it is plainly written, and held that unless there is an exception under 59:10A-2, N.J.SA General provide must for the defense of action brought against employee a State on account anof act or scope omission of employment. Jersey

New construes obligation its indemnify employees under the TCA extending to the defense of rights civil actions brought pursuant § to 42 U.S.C.A 1983. In re Petition for Comm, Opinion Review Advisory Ethics, on l Prof 194, 197, (1986). N.J. addition, 507 A.2d 233 Jersey New is one jurisdictions of the few that will employees its for punitive damages. N.J.S.A 59:10-1. This was an seeking action damages rights guaranteed for under State law. Numerous State high-profile cases of rights civil violations have been defended General. Professor Chasin was entitled to a defense under N.J.SA 59:10A-1. If the her, refused to defend Professor Chasin was entitled to indemnifi 59:10-2, cation under N.J.S.A which provides that “[i]f State employee establishes that he [or she] entitled to a defense provisions under the of this chapter, pay State shall reimburse” employee action, “all costs of defending the including reasonable counsel fees expenses, and together with appeal, costs of any.” if

447 III was TCA. 18A:60-4 impliedly repealed move, passage it that the of goalpost In the final asserts State’s grant 18A:60-4’s of impliedly repealed TCA in 1972 N.J.S.A statute, college professor. The since re- indemnity for a State pealed, provided: brought against any professor, civil action has been or shall

Whenever any arising ... for or omission out [or] assistant act associate professor any professor, ... of the of the duties of such or position of and in the course performance defending including action, shall costs of such the state all employment, defray together of if and fees and with costs appeal, any, reasonable counsel expenses, resulting loss such from financial shall save harmless protect person arrange the state for and maintain insurance to may therefrom; appropriate damages, losses cover all such and expenses. 1992, in against At of the suit Chasin N.J.S.A. 18A:60-4 the time of complaint her effect. Plaintiff’s reimbursement In the answer to the specific fees made reference statute. complaint, never asserted statute Quite fact repealed. aside from the impliedly had been papers trial repealer argument was raised never the State’s Statement, Division Case Information defendant’s disheartening It is to this Court finds that issue is before us. abandon, its find an precedent me that the Court would so precedent. in the I would rather implied repeal face of our deny Chasin on the simply counsel fees Professor Court 18A:60-4 had suggest of conduct than to that N.J.S.A. basis her long repealed. has in a series of impliedly been This Court held cases that “strong against v. such an Camden City

there presumption” implied repeal, (1980), will be 154, 411 A.2d 462 and that 133, presumption 82 N.J. Byrne, [LJegislatwre doubt intended a reasonable that the beyond overcome only by proof negation 22 125 A.2d law. v. N.J. City Clifton, Swede prior (1956)____ [Legislature intent an [T]he repealer 865 effect implied not arise unless the statute'is statute “will by implication subsequent plainly prior designed repugnant to be a substitute for to the former and is complete (App.Div.1963). 191 A.2d 802 Drake, 458, 461-62, former.” State v. N.J.Super. give “repugnant” to be if it is the two Two statutes are said only “impossible [ ] 161] 580[, effect.” 67 N.J. [565,] concurrent State v. operative A.2d Gledhill [(1975)]. added).] (1986) (emphasis Milligan, [State 514 A.2d 1316 67, 70-71, N.J. v. 448 by State,

In Kemp Wright County v. Burlington, Justice of Coleman determining implied summarized the test for an whether repeal has occurred: covering aWhen enactment of subsequent field coexistent awith operation given statute cannot reasonable prior construction be effect while the any prior law remains existence of because irreconcilable conflict between the two acts, the legislative

latest and the law to the extent expression prevails, prior yields conflict. if the between a later act Conversely, inconsistency and an earlier one is not fatal together of the two operation either, stand and no will may repeal effected. (1997) (quoting N.J. Singer, [147 294, 307, 687 A.2d 715 1A Norman J. Suther- (footnotes omitted)).] land § Construction Statutory 23.09 at 338-39 In Kemp, the Court fatally found that the two laws were inconsis- tent because it was impossible give concurrent effect. If them immunity law, there were under the earlier there could not be liability under the later law. Not so greater rights, here. The if they so, are deemed afforded to colleges teachers at State under Higher Act, 1994, 48, Education Restructuring 807, § L. c. may rights co-exist with the lesser afforded public employees to all under the TCA. There is thus no irreconcilable conflict or fatal inconsistency between N.J.S.A. 18A:60-4 and the TCA.

Indeed, there apparent is no conflict at all. Both statutes provide for the employees, indemnification of State including reimbursement of the defending costs of actions and reasonable attorneys’ fees. require Both statutes that in order to be indemni fied, employee’s conduct must have occurred scope within the employment. provides The TCA also employee will not be entitled to indemnification if the State establishes that employee engaged fraud, in “actual actual malice or willful miscon duct.” Although N.J.S.A 59:10-2. requirement this explic is not itly 18A:60-4, included N.J.S.A our courts have held that an employee cannot claim to have acted within scope employ ment employee unless the acted “in the discharge duty of a imposed or authorized ... good law and faith.” Scirrotto v. Educ., 391, 397, Warren Hills Bd. N.J.Super. 272 640 A.2d 302 (App.Div.1994)(quoting Errington Educ., v. Tp. Bd. Mansfield

449 420, rev’d and (App.Div.1963), 195 A.2d N.J.Super. (1964).) 200 A.2d grounds, 42 N.J. on other remanded gives the noted, argues that the TCA now the State As indemnify a State to decide whether discretion absolute merit, argument had if this plaintiff. Even employee such conflict” between an “irreconcilable not create it would and the TCA. 18A:60-4 that a local provides plaintiff explains, the TCA example,

For as indemnify local authority discretion whether has the public Nonetheless, several other employees. N.J.S.A. 59:10-4. public cases, indem- that in certain provide the TCA pre-dating statutes See, e.g., mandatory. N.J.S.A. employees is of local nification of boards of actions for members (indemnity in civil 18A:12-20 school offi- education); (indemnity for local 18A:16-6.1 N.J.S.A (in- actions); N.J.S.A. 40A:14-28 employees criminal cials and departments); N.J.S.A municipal fire demnity employees of for municipal police depart- of (indemnity for 40A:14-155 ments). notion that related consistently disapproved of the have

Courts by the TCA. repealed implicitly laws were indemnification Education, N.J.Super. 136 New York Board Lameiro v. West (Law Div.1975), rejected the 589-91, the court 585, A.2d 377 347 indemnity provi- impliedly repealed the the TCA argument that “[ijndemnity ... not Observing that 18A:16-6. sion of N.J.S.A [A]ct,” inconsistency between found no the court alien to the indemnity of mandatory indemnity and the of the TCA permissive 590, 347 A.2d 377. 18A:16-6. Id. N.J.S.A. conclusion that supports history also legislative repealed passage impliedly

N.J.S.A. 18A:60-4 of N.J.S.A 18A:60-4 plainly aware Legislature was TCA. The Attorney Gener- notes that the TCA. Plaintiff passed it when 18A:60-4, along N.J.S.A. Report twice discussed Task Force al’s Report provisions. See related several other with (1972), 37-38, 47-48 Immunity Sovereign Task Force on Novack, Claims Robert Harry Margolis A. reprinted in 450 (1998).

Against provisions Public Entities Several of the other explicit discussed but repeal, were included N.J.S.A. 18A:60-4 Compare was not. at 37 (discussing id. N.J.S.A. 18A:60-4 and 38A:4-9, provided immunity N.J.S.A. which tort to members of militia) organized (discussing 18A:20-35, id. at 46-49 N.J.S.A. districts, granted immunity which tort to school N.J.S.A. 38A:4- which required represent General to and defend suits, against 18A:60-4), militia tort members and N.J.S.A with 18A:20-35, (explicitly repealing N.J.S.A 59:12-2 N.J.S.A. N.J.S.A 38A:4-9, 38A:4-10). Legislature’s and N.J.S.A Given the obvious 18A:60-4, awareness of N.J.S.A. the failure to include it for explicit repeal negates an implied repeal. intent of Bower v. Cf. Educ., 15, 29-30, N.J.Super. Board (App.Div. 670 A.2d 106 1996), (1997) (observing N.J. A.2d 543 aff'd statutory “Basic tenets of construction counsel that when one of amended, two similar or related statutes is the fact that Legislature originally retains the second statute oper written statute.”). implicit ates as an approval the second argument implicitly repealed the TCA 18A:60-4 in Legislature 1972 is belied the fact that the explicit- ly repealed later, years 18A:60-4 N.J.S.A. twelve with Higher 1994, Restructuring 1994, 48, Education § Act of L. c. 307. This act, recall, we will Department Higher abolished the Education colleges and made independent the State and universities institu- tions. with independence right Concomitant that was the provide indemnification for their employees indepen- officers and provided by dent of that General. Finally, express repeal particular may “later of a statute

. construed as legislature previous- some indication that the did not ly repeal intend to implication.” the statute 1A Norman J. Singer, 23.11, (5th Statutory § Sutherland Construction at 362 ed.1993). nothing Higher There is in Education Restructuring Act of suggests 1994 that states or that N.J.S.A. 18A:60-4 was merely an superseded obsolete or being statute that was removed Horn, from the books. N.J.Super. Central Constr. Co. v. 179 Cf.

451 introductory (noting that 102, (App.Div.1981) 95, A.2d 939 430 obsolete laws from was “to remove purpose said statement bill superseded). Nor was previously been that had the books” repeal of the entire part larger of a repealed as N.J.S.A 18A:60-4 18A:60-5, Indeed, N.J.S.A part. chapter of which it is actions, re in criminal provision for indemnification companion 310-11, A.2d at Kemp, supra, 147 N.J. unaffected. mains Cf. larger repeal of entire part of (stating express repeal was chapter”). of a new of the enactment anticipation “in chapter, in 1994 of N.J.S.A. 18A:60-4 repeal plain reason for wholly being replaced by a plan of indemnification that its Restructuring Act of Education system.. Higher new Under college each State its this act whether it, the effective date of within 75 days shall elect If General. in all such shall be matters represented employees, it shall be General, the Attorney not to be represented by the institution elects of a sue and be sued entity considered and its employees employees considered The institution shall be Tort Act” only. of the “New Claims Jersey the purposes with defense and indemnifi- its employees in that circumstance provide required Act in lieu of the conditions of the Tort Claims with the terms and cation consistent and be would otherwise seek that such and indemnification defense General____ entitled to from the Attorney 18A:3B-6(h)J [N.J.S.A 18A:60-4, Legislature did not intend replacing prior proceedings. On no effect on repealed law would have petitions, controver provides that contrary, “[a]ll the 1994Act Higher ... the Chancellor disputes pending before sies and act date of this of as of the effective disposed and not Education under the law under which by the commission be decided shall N.J.S.A had not been enacted.” though this act action arose as A.2d 715 Kemp, supra, 147 N.J. 18A:3B-29. Cf. “savings accompanied'by repeal is not express (stating that where repeal ... it is limiting of its language the effect or other clause repealed law] Legislature [the intended likely that the most (citation- ”) it had never existed.’ though ‘as considered should be omitted). Attorney

Because the General told Professor Chasin that claim, apply Attorney N.J.S.A. 59:10-2 the would her General was, subject misconduct, hearing to a on of willful the issue required provision Professor Chasin under that once Similarly, the matter against was resolved. because the claim rights damages, Professor Chasin was civil claim for she was right, entitled to a under the a matter of defense TCA as not as a Finally, matter of is discretion. because there no basis to con- 18A:60-4, implicitly repealed clude that the TCA Profes- sor legal Chasm’s are under costs reimbursable that Act. For reasons, these I affirm judgment would the the question Division and allow the remand on the of Professor Chasm’s conduct.

STEIN, J., joins opinion. in this

STEIN, J., dissenting. appeal University This professor’s concerns Montclair State freedom, good commitment to academic and her faith belief that a Legislature compel statute enacted the did not her to issue a grade who, to a student called to Gulf serve the War on his return, report declined to tested or to covering approxi- write a mately ungraded one position month’s work. Her was sustained University’s the Grade Grievance Committee and the Provost. seeking injunctive punitive When student sued relief and damages, General professor. refused to defend the After any the suit was settled without determination adverse to professor, refused reimburse her for Although counsel legal position fees. State’s reflected its belief professor defied

advice, contrary crystal the record clear: there never was direct from pro- communication General to the fessor, written, informing oral or professor that she was violating the law. A conversation Deputy to that effect between a professor’s lawyer place, General and the took only but Although opinion student suit. persis- filed the Court’s after defying professor mischaracterize as the tently attempts to advice, contrary record to the is General’s uncontested. view, and, my join cogent, in persuasive

I O’Hern’s Justice separately of dissenting opinion. I write because unanswerable disregarded the my office conclusion that the General’s when it declined to applicable statutes and abused its discretion professor a student represent or who sued punitive him a and to recover grade her to issue compel her to do so. That damages for failure an adopt petty approach and crabbed office would so University professor of a question of defense or reimbursement .by respect for asserting position and motivated a so defensible Accordingly, I it disappointing indeed. find freedom is academic facts and especially that the has obscured the troublesome Court action the law in its efforts to sustain the unsustainable misapplied obligation I of General. believe that Court’s independence from the coordinate branch- preserve judiciary’s disposition appeal. of this compromised es of is its government I apprecia- an understanding A facts is critical to precise posed by Lloyd, a student in appeal. issues this John tion of the “Sociology of Rich and Barbara course entitled Professor Chasm’s 1990, during notice in fall received Poor semester Nations” duty to in the forces report serve United States the semester 1990, 1, Lloyd quiz took a in October the Gulf War. On A; 1990, Lloyd 1, took midterm an oh November received grade He continued to attend class of A. exam and also received duty on departing for Decem- for five weeks before approximately signed an 4, leaving the Gulf he 1990. Before War ber agreed, he with Professor Chasin in which “Incomplete Contract” return, the weeks paper test or to cover on to take a submit his yet he been tested. attendance on which had class service, Legislature passed While was in the L. in pertinent part c. as provided which follows: is A student who a member of the National Jersey New Guard or Reserve of the Armed the United is States, Forces of and who unable to component higher or a course courses at a New institution education Jersey complete because the student called to active of the current United duty consequence Nations action the Persian Gulf known “Desert Shield” “Desert operation grade entitled to Storm,” shall be receive a each course for which the student a

has minimum of 8 attendance and all weeks’ other academic completed require- during grade that ments be based period. shall on the work to completed up the the student time when was called to active service. added.]

[Emphasis War, Lloyd On his from requested return the Gulf that Profes- him grade sor Chasin A issue of because he that he was believed grade entitled to receive that in accordance with the terms of the foregoing legislation. disagreed, reading Chasin Professor the requirement grade statute’s that a student’s on be based all of completed” “the prior departing military work to service to military mean that a student called to service would receive a grade on all based material covered until the the date of student’s departure. suggested Lloyd paper She take a test or write covering experiences his Gulf the War satisfaction of the requirement provide that he additional evidence of his entitlement grade. Lloyd to a refused and when Professor Chasin would not yield, Lloyd grievance filed a with the Grade Grievance Committee University faculty. of the grievance by Committee,

Before the was heard the the Univer- sity Chasin, wrote to copy Provost Professor enclosing a of the pertinent legislation, stating: and I believe that have asked fulfill that Mr. the the you Lloyd terms of incomplete give contract into in or, entered December 1990 him will an F. I alternatively, you urge law____ to read you carefully attached I copy appreciate your concerns and understand the have taken. position But, as you obligation State of New we have an to Jersey the laws enacted obey by

legislature. agree. I will hope you prior Significantly, Lloyd’s appeal to the Grade Grievance Committee, from, no one General’s ever com- office concerning municated with Chasin whether her inter- Professor with the pretation the statute was consistent General’s interpretation. hearing pending, a Committee was Grade Grievance

While ap- apparently office representative of the General’s orally meeting of the peared organizational at an Committee obligated communicated the view Professor Chasin was faculty Lloyd. University grade an A Counsel to issue objected General’s interference with the Commit- advised the Committee that it should tee’s deliberations and by had not been influenced itself with members who reconstitute the Com- Deputy Attorney appearance. General’s Whether record, not it is a is revealed but mittee reconstituted Committee, deciding Lloyd’s assumption that reasonable itself bound appeal, did consider

informally expressed concerning the statute. views 7, 1992, sustained May the Grade Grievance Committee

On grade, on its refusal to issue based Professor Chasin’s ambiguous open interpreta- that the several law “belief University Grievance Provost sustained Grade tions.” in the Lloyd grade decision and informed his Committee’s by the “incomplete.” upheld her action was course would be After Provost, University Pro- by and the Committee Grade Grievance Lloyd grade. not issue a fessor Chasin did Division, Court, Superior Chancery

Lloyd in the then filed suit injunctive against County, damages relief and seeking both Essex injunctive requested and the Provost. The relief Professor Chasin University to and the compel the court Professor Chasin was that the respect A in With to Lloyd grade of the course. issue claim, and damages' complaint alleged that Professor Chasin the “intentionally maliciously provide to Provost had and refused the Jersey Legislature grade to which the New plaintiff with the “intentional, him,” wanton that because of their has entitled and and to Lloyd had harmed was entitled malicious” refusal been and damages. punitive requested representation Attorney

Chasin then from the Gener- who, record, according directly al’s office had never commu- Chasin, orally writing, prior nicated with either or in Professor Lloyd’s to institution suit. The General’s office of agreed University represent and the Provost but declined to represent refusing representa- Professor Chasin. The letter her tion stated as follows: background legal litigation After of the factual review and from which above legal it arises, this office has determined that will not for provide representation Professor Chasin to the New Tort in pursuant Jersey Claims Act connection with this matter. This decision is upon based actions of Professor Chasin with regard to this matter General’s discretion N.J.S.A pursuant 59U0A-2 to such refuse There is also a serious as to representation. question whether the of in Professor Chasin this matter representation would constitute conflict of between the interest State and Professor Chasin. 59:10A-2(e). light

N.J.S.A In determination, this whether Chasin of Professor entitled, governed will be State will be by by provisions indemnification N.J.S.A. 59:10-2. added.] [Emphasis Significantly, the section of the Tort Claims Act referred to requires General’s letter indemnification in claims sounding employee in tort unless acting was outside of the fraud, employment course of or had acted because malice or wilful Accordingly, misconduct. litigation the outset of the rightfully Chasin would have assumed that her eventual claim for for expenses indemnification would be on based whether she misconduct, had been found to have committed wilful being there suggestion no fraud or malice the record. progressed

The lawsuit approximately two and eventu- years ally stipulation was settled of dismissal. The tort punitive damages claims for University were dismissed agreed grade to issue an administrative of A. No admission that Chasin had acted wrongfully stipulation in the included required nor acquiesce was she grade. the issuance requested Chasin then indemnification for her counsel fees of $12,000 approximately and the General’s office denied request. her She action. instituted this an affidavit filed in support Attorney summary judgment, General’s motion for approximately years Lloyd’s underlying and dated two suit after settled, Deputy Attorney Grey was J. Dimenna certified Lloyd against that had suit Professor Chasin he had after filed interpretation her counsel that her of the law was informed required Lloyd grade. incorrect and that was she issue Attorney Deputy Court’s reference to General Dimenna’s certifica- (“Dimenna misleading. alleges tion is that he had several conver- informing him sations with Chasm’s counsel of her duties under statute.”) Ante at A.2d at 466. The Court fails to acknowledge such conversation occurred had after suit. filed Judge granted summary

In the Law Division Kirsten Chasin’s motion, judgment concluding as a matter of law that Professor in good thereby rejecting any sugges- Chasin had acted faith and tion that her actions constituted wilful misconduct. He also university professor observed that a bound the Attor- ney interpretation General’s of the law and was free to take action Attorney legal opinion. that was inconsistent with the appealed Appellate General’s office Divi sion, setting following forth its Case Information Statement the reversing judgment: employ basis for the Law Division’s “A state attorneys pursuant ee is not entitled to reimbursement fees employee N.J.S.A. 59:10-2 or N.J.S.A. when the is sued 18A:60-4 comply because she did not with the advice (Civil Statement, Case Information General.” 1—June added). 1996)(emphasis filing until Not of briefs Division did the General’s office assert legal position adopted by majority appeal, pursuant in this 59:10A-1, obligated to N.J.S.A. General was not represent employee respect a state of claims not Moreover, sounding in tort. filing post-argument not until the briefs with this Court did the General assert impliedly repealed by N.J.S.A. 18A:60-4 had been the Tort Claims Act.

458

II A Against Chasin Was Tort Action For Which Representa- A Suit Lloyd’s Professor And In The Absence tion Were Misconduct Mandatmy Indemnification Of Wilful opinion ignores Lloyd’s this issue claim The Court’s and treats solely if against equitable Chasin as it a claim for relief. The were majority only allegations apparently has elected to read one through Lloyd’s complaint. allega- fifteen of An examination of through recognize eighteen sixteen would cause tions the Court tortious, Lloyd fact, wrongdo- alleged that had and intentional Provost, ing part sought on the Professor Chasin and the and damages punitive wrongdoing. as redress for that That claim is tort, equitable. Its and as General essence Court, N.J.S.A. 59:10A-1 mandates successfully argued to this provide concerning that General defense that claim. majority Lloyd’s counters with the that “ancil observation

lary request exemplary damages” does fundamen not alter the claim. Ante tal nature of his at A.2d at 464. 59:10A-1, under N.J.S.A. representation context of a claim for groundless. assertion is that expressly opinion

The Court holds in its obligation under indemnify and to defend only seeking 59:10A-1 “arises in the context of civil actions tortious conduct.” Ante damages for A.2d at 464. Lloyd’s suit was action. such civil To the extent we are litigation, informed about conduct of that know is that all we damages the suit was no paid. settled and were That result hardly negates the fact among incontrovertible the claims against sounding asserted Professor Chasin was claim tort seeking punitive damages. tort, Because Professor Chasin sued and the Provost only by contending then that Professor constitut- Chasm’s actions successfully “wilful ed misconduct” could the argue obligation Lloyd’s it had no to defend suit and. legal expenses. Surely, Professor Chasin for her no proof of wilful misconduct exists on this record. The record prior organizational meeting informs us that at no time the Grade Grievance Committee did the General’s office anyone interpretation communicate to its of the statute. At that meeting Deputy Attorney appeared appar- General Dimenna ently informed the Committee that in his view Professor Chasin obligated give Lloyd grade. Deputy Attorney was to Dimenna’s certification indicates that the first time he informed interpretation Professor Chasm’s counsel of his of the statute was Lloyd interpreta- after had filed suit. Because Professor Chasm’s tion of the statute was sustained both the Grade Grievance Provost, seriously Committee and the no one could contend that her actions constituted wilful misconduct.

Moreover, meaning sufficiently of the statute was debatable justify professor’s to conclusion that a student’s entitlement to a statute, grade, even under the mandated a demonstration of proficiency concerning prior in the work covered class to the departure statutory language student’s for the Gulf War. The indicating grade completed should be based on “the work up time when student was called to active service” is imprecise, clearly dispute and does not resolve the between and Professor Chasin.

B Asserting The Be General’s Should From That N.J.S.A: Attorney Estopped Office Right 59:10A-2 Does Not Control Chasm’s To Reimbursement Professor Pangborne Jersey Department In v. W.V. & Co. New Trans 543, (1989), Handler, portation, 116 N.J. 562 A.2d Justice Court, writing emphasized principle government for the special obligation square fairly has a to “turn to comers” and deal public. obligation surely with the Id. at 562 A.2d 222. That public employees. Pangbome, In extends we held that Department Transportation estopped asserting was from the ac- inconsistent with defense that was of limitations

statute a contractor’s claim to its review of respect took with tions it compensation. additional The General’s apply here. principle should

That same informed office, Chasin declining represent Professor by the governed right indemnification would that her her public indemnification to representation and that afford statutes tort, implication clear and the employees sued her enti- that the determination of General’s communication actions based on whether her would be tlement reimbursement noted, simply is no basis As there wilful misconduct. constituted Professor Chasm’s actions to conclude that in the record on which Accordingly, misconduct. remotely resembled wilful commitment and reim- have honored its office should General’s for her fees. bursed Professor Chasin

C Did, Against Not Chasin Sound The Concludes Thai The Suit Court Professor If Ignores To Determine Her General’s Commitment Tort, And Right Is No Basis In 59:10-$, The Basis There To Reimbursement On OfN.J.S.A To Determination Record To Discretionary This Justify To N.J.S.A. Or Reimbursement Pursuant Chasin Representation Deny Professor 59:10AS in General to reposed discretion The extent of the public employees sued deny representation or reimbursement employment taken in the course of their on the basis of actions assumption that under by Legislature’s must be informed expected to ordinary state should circumstances in the course of their legal fees when actions taken bear their own contexts, In other the Attor- employment proper. are lawful and employees the generously accorded state ney office has General’s allegations of misconduct deciding whether of the doubt benefit justify denial of disqualifying activity are sufficient to or other Professor comparison, to whatever extent representation. criticized, may possibly be her motivation —the conduct Chasin’s clearly admirable and of academic was preservation freedom — unselfish. Because Professor good Chasin acted in faith and with motive, a laudable and was never informed that her refusal to unlawful, grade discretionary issue decision to deny impossible justify. her indemnification is to question discretionary whether a represent refusal to might Professor Chasin is sustainable be closer if the Attorney General’s office legal opinion had informed her of its concerning proper interpretation prior of the statute Lloyd’s appeal to Indisputably, the Grade Grievance Committee. us, According that was not done. to the record before no written legal opinion concerning by this matter was ever rendered anyone, only and the indication in the office concerning record of the General’s views the statute is Deputy Attorney appearance organiza- General Dimenna’s at the meeting tional of the Grade Grievance Committee at which he orally conveyed required the view that Professor Chasin was give Lloyd grade. observed, As the Division communication is a “thin reed” on which to base a conclusion that Professor Chasin acted bad faith or committed wilful miscon- only duct. person purported give her advice was Provost, copy who sent her a of the state statute. Subse- quently, that same Provost sustained the action of the Grade supported position. Grievance Committee that Professor Chasm’s scrupulously Professor procedures Chasin followed the rules and university by any set down her and cannot standard be engaged considered to have in wilful misconduct.

D Right Chasin Has An Undeniable To To Pursuant Professor Indemnification N.J.S.A 18A60-4 forcefully persuasively Justice O’Hern has dealt with the majority’s unsustainable conclusion that N.J.S.A 18A:60-4 was impliedly repealed 447-52, Tort Claims Act. Ante at out, points 782 A.2d at 473-76. As Justice O’Hern the test for determining impliedly whether a statute has repealed been is allegedly repealed statute repealing and the statute

whether suggestion of a the remotest fatally There is not are inconsistent. provision inconsistency two statutes. The between these fatal in- of counsel fees mandating reimbursement education law involve the does not even by employees of state universities curred Instead, requires simply statute Attorney office. that General’s arising employ- out legal in actions fees reimbursement Act, the Tort Claims burden employment. Under the public ee’s General, Attorney under the by the but representation is borne only are the imposed. Not law no such burden education inconsistent, they totally harmonious and fatally are statutes not years— twenty-two they approximately did for could coexist —as repealed in 1994. That the Court statute was until the education specious argu- to accommodate the jurisprudence its would extend implied by support ments advanced being that this case is repeal 18A:60-4 demonstrates of N.J.S.A. law, facts, by but a result. driven not

Ill in the truth this case is that someone simple about judgment denying repre- questionable exercised General’s' office Assuming Chasin. and indemnification to Professor sentation comply legal with the incorrectly Professor Chasin “did not General,” apparently made a decision advice of the defy public employees who principle to test the right representation or legal advice forfeit their I quarrel nor with indemnification. Neither Justice O’Hern Any appeal. simply has no relevance to this principle, but it to Professor Chasm’s by the General’s office advice informally to constitute counsel was delivered too late too require expense her to bear the justification for the decision to Lloyd’s suit. of law Professor Chasin is entitled

I hold that as a matter would Accordingly, I affirm her fees. would to indemnification for modify judgment of the Division. but O’HERN, J., joins in this dissent. For Justice PORITZ and affirmance modification —Chief HANDLER, POLLOCK, Justices GARIBALDI and

(cid:127) COLEMAN —5.

For and remandment —Justices O’HERN and affirmance STEIN —2.

732 A.2d 482 GILCHINSKY, PLAINTIFF-RESPONDENT, LEA v. NATIONAL N.J., WESTMINSTER BANK THE ESTATE OF RICHARD RODGERS, RODGERS, THE ESTATE OF DOROTHY THE ES II, TERHUNE, TATE OF OSCAR HAMMERSTEIN JACK SHER (WHOSE IFF OF BERGEN COUNTY AND JOHN DOES 1-10 KNOWN), DEFENDANTS, IDENTITIES ARE NOT YET AND ORGANIZATION, THE RODGERS AND HAMMERSTEIN DE FENDANT-APPELLANT. ORGANIZATION,

THE RODGERS AND HAMMERSTEIN PLAINTIFF-APPELLANT, GILCHINSKY, v. LEA DEFENDANT-RESPONDENT.

Argued March 1999—Decided June 1999.

Case Details

Case Name: Chasin v. Montclair State University

Court Name: Supreme Court of New Jersey

Date Published: Jun 2, 1999

Citation: 732 A.2d 457

Court Abbreviation: N.J.