OPINION
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 plaintiffs 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 Plaintiffs 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).
The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367.
FACTS AND BACKGROUND
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 Cuecinello 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 plaintiffs claim that they retaliated against him in violation of his rights under the common law. (Id., ¶¶, 11, 5).
A. Plaintiff’s Appointment and Discharge
On December 3, 1997, the Republican-controlled Board of Freeholders reappointed Mr. Siss, a Republican, to a three-year term as Assistant County Counsel. (See Siss Aff., Mar. 16, 1999, ¶¶ 2-3; Pascrell Aff., Exh. A). 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 Cuecinello. (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; Plaintiffs Br., Exh. C).
B. The Earlier Freeholders’ Meeting
Plaintiffs Open Public Meetings Act claim focuses on an earlier meeting among at least some of the Freeholders and Mr. William Pascrell, the newly-appointed
C. Defendants’ Reasons for Terminating Plaintiff
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 Dem-oeratic-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).
D. The Nature of the Position of Assistant County Counsel
1. Plaintiff’s Evidence
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 рrimarily handled Sheriffs 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 Sheriffs Office in any disputes with any contractors; ... preparing competitive bid documents where required[; and] handling] 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).
2. Defendants’Evidence
Defendants contend that the position of Assistant County Counsel is a confidential, policy-making position. With respect to
Labor Counsel or Assistant County counsel ... shall be responsible for:
a. All New Jersey Department of Personnel related hearings concerning contested matters between employees and the employer ... [;]
b. Handling] all litigation arising as a result of disputed labor contracts or sections of contracts ... [; and]
c. Monitoring] and enforcing] the terms and conditions of employment as outlined in the collective bargaining agreements.
(Id., § 3.14).
In addition, the Administrative Code enumerates the following duties of the Department of Law, to be supervised by the County Counsel:
a. Attend meetings of the Board, and give opinions and rulings on questions of law which may arise at Board meetings;
b. Advise the Board, the Administrator and all County agencies, when requested to do so, with respect to their official responsibilities;
c. Prepare and/or supervise the legal form and sufficiency of all contracts, deeds, correspondence and other documents and all resolutions and actions referred to the Department for preparation and review;
d. Represent the County in all matters of litigation, appeals in the courts, proceedings before any administrative agency and in other appropriate matters, and recommend to the Board settlement of any matter;
e. Maintain records of all actions, suits, proceedings, and matters which relate to the County’s interest and report thereon from time to time as the Board may require;
f. Render such advisory opinions as are requested by the Board;
g. Have the authority to settle matters in dispute in an amount not to exceed one thousand dollars ($1,000.00); [and]
h. Attend meetings of the Employees’ Retirement System of the County of Passaic and render opinions and rulings as to pertinent questions of law.
(Id., § 18.2).
In addition, defendants submit Mr. Siss’ own description of his professional responsibilities in transition and status memoran-da he prepared at County Counsel Pasc-rell’s request. (Pascrell Aff., Exhs. B, C). In a February 4,1998 memorandum, plaintiff stated that his job responsibilities had initially focused on representing the Sheriffs Department in disciplinary matters but had since expanded to include other issues. (Id., Exh. B). For example, he noted that he was working on a contract dispute with the provider of nursing services to the jail and on the solicitation of bids to replace that provider and expand the medical services performed for the jail by outside contractors. (Id.) He added: “Other duties include working with the Department on procedures and policies and any special interest issues that affect the jail, Sheriffs Patrol and/or courthouse.” (Id.)
Mr. Siss’ list of the matters he was working on in February and March 1998 consists mostly of employment-related disputes but also includes: “Review of infectious disease policy at jail. Working with Deputy Warden on revising;” “Request for Proposal for medical services at jail;” and “Camp Hope.”
(Id.; see also id.,
Exh. C). County Counsel Pascrell explains that Camp Hope is a County-operated children’s camp not affiliated with the Sheriffs Office and that Mr. Siss served as attorney to the Board-appointed committee responsible for the Camp’s administration.
(Id.,
¶ 11). He adds that Mr. Siss’ employment-related responsibilities included providing “legal counsel to the Sheriffs
According to Mr. Pascrell: “The Deputy Counsel and Assistant County Counsels are actively involved in the policy-making process and privy to confidential information.” (Id., ¶ 21). He states that, since he took office, each Assistant County Counsel has been assigned to one of four Board of Freeholders committees and one of the Assistant County Counsels has joined him in regularly attending the meetings of the fifth committee. (Id.) He explains that these committees “review and develop policy and address confidential employment matters,” and generate or discuss almost everything that is placed on the Board of Freeholders’ agenda. (Id.) In addition, he states, these committees are responsible for review of the County’s budget. (Id.) According to Mr. Pascrell, members of the Law Department are assigned to these committees “for the purpose of providing legal counsel which may include an evaluation of the legal merits of a proposed policy.” (Id.) Moreover, he states that the Deputy General Counsel and Assistant County Counsels are “responsible for researching and evaluating various policy matters,” such as, in the past year, the County’s indemnification and sexual harassment policies. (Id., ¶ 22).
In addition, Mr. Pascrell states: “There exists an attorney-client privilege between the Board, County department heads and members of the Department of Law.” (Id., ¶ 23). He says that members of the Department of Law have met in closed session with the Board to answer legal questions. (Id) In litigation on behalf of the County, he says, Assistant County Counsels handle day-to-day matters and are relied on by himself and the Board “to provide[ ] their professional evaluation of the matters based on their knowledge of the facts and the applicable law.” (Id.) According to Mr. Pascrell: “Members of the Department of Law have also represented the County in collective bargaining negotiations.” (Id.) He further states that there is an attorney-client privilege between the Camp Hope committee and the Assistant County Counsel assigned to it. (Id.)
Moreover, Mr. Pascrell notes that “persons holding the position of Assistant County Counsel, if designated could perform the functions of the County Counsel and Deputy County Counsel if both were absent or incapacitated.” (Id., ¶ 20). When Mr. Pascrell took office, the Department of Law retained three Assistant County Counsels, one full-time and two part-time. (Id., ¶ 6).
Finally, defendants submit a Request for Admissions that they served on Mr. Siss on February 5, 1999, and a certification to the effect that plaintiff did not respond within the time period set forth in Fed.R.Civ.P. 36. (Gallagher Cert., Exh. A, ¶ 2). Under Rule 36, the matters included in the Request for Admissions are therefore deemed admitted. Plaintiff accordingly is deemed to have admitted that during the course of his employment as an Assistant County Counsel: he “worked on revising the infectious disease policy at the County Jail;” “represented the Sheriffs Department in contested matters between the Sheriffs Department and its employees;” “provided legal counsel to the Sheriffs Department regarding disciрlinary actions, settlements and litigation strategy;” “w[as] privy to confidential information;” “reviewed confidential documents;” “participated in the development of County policy;” “evaluated the legal merits of proposed or existing County policy(ies);” “drafted and/or reviewed documents which were protected by the attorney-client privilege and/or attorney work-product doctrine;” “provided legal advice regarding County policy;” “provided legal advice regarding employment issues;” “provided legal advice regarding litigated or contested matters;” “participated in discussions and/or meetings where County policy was discussed;” “acted as an advisor to policymakers including but not limited to Sheriff Englehardt;” “conducted legal research;” “had access to confidential documents;” “drafted or assisted in drafting contracts;”
E. Outstanding Discovery
The Court notes that plaintiff argues in his brief and at oral argument, but not in an affidavit, that defendants’ summary judgment motion should be denied so that additional discovery can be conducted. On January 22, 1999, plaintiff served notices of deposition on County Counsel Pascrell and Freeholders Eagler and Cuccinello. (Plaintiffs Br., Exh. A). Defendants responded with a letter refusing to schedule depositions until the Court addresses the threshold immunity issues raised in this summary judgment motion. (See id., Exh. B). Plaintiff argues that the depositions are necessary to shed light on the meeting Mr. Pascrell held with the Democratic Freeholders to which he referred in his discussions with plaintiff on March 6, 1998 when asking for plaintiffs resignation. (Id. at 30-31).
ANALYSIS
I. Standard
A. Rule 56
Federal Rules of Civil Procedure 56(c) provides that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material faсt and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Chipollini v. Spencer Gifts, Inc.,
The Supreme Court has stated that, in applying the criteria for granting summary judgment to a defendant:
The judge must ask ... not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge’s inquiry therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....
Anderson v. Liberty Lobby, Inc.,
In order to survive a motion for summary judgment, a plaintiff must present “more than a mere scintilla of evidence” in his favor. He “cannot simply reallege factually unsupported allegations contained in his pleadings.”
(Anderson v. Liberty Lobby,
B. Rule 56(f)
If the party opposing a motion for summary judgment requires additional discovery to justify its opposition, the Court may deny or continue a motion for summary judgment under Fed.R.Civ.P. 56(f). Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In determining whether to grant relief under Rule 56(f), a district court must consider the information sought and its availability to the party seeking to take advantage of the rule. The United States Court of Appeals for the Third Circuit explained in
Contractors Assoc. of Eastern Pennsylvania v. City of Philadelphia,
If information concerning the facts to be discovered is solely in the possession of the movant ... “a motion for continuance of a motion for summary judgment for purposes of discovery should ... ordinarily be granted almost as a matter of course.” Ward v. United States,471 F.2d 667 , 670 (3d Cir.1973) (citations omitted). The Ward rational would not seem to apply, however, when the party seeking discovery has the information it seeks in its own possession or can get it from a source other than the movant.
(Id. at 1263).
The Third Circuit has further elaborated:
[W]hether a Rule 56(f) motion should be granted “depends, in part, on ‘what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not been previously obtained.’ ”... A district court has discretion in acting on Rule 56(f) motions.... However, where relevant information sought is in the hands of the moving party, “a district court should grant a Rule 56(f) motion almost as a matter of course unless the information is otherwise available to the non-mov-ant.”
San Filippo v. Bongiovanni,
Rule 56(f) specifically requires the filing of an affidavit, not just a brief, explaining the reasons for the requested delay.
See Pastore v. Bell Telephone Co. of Pennsylvania,
II. Application
Defendants’ motion for summary judgment will be granted. The Court will address each of plaintiffs claims in turn.
A. Violation of the Open Public Meetings Act
New Jersey’s Open Public Meetings Act, N.J.S.A. 10:4-1
et seq.
provides that meetings of public bodies should generally be open to the public. However, it allows public bodies to exclude the public from any portions of a meeting at which they discuss “[a]ny matter involving the ... termination of employment ... of any ... employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.” N.J.S.A. 10:4 — 12(b)(8). New Jersey courts have interpreted this provision to require that employees be afforded “reasonable notice of the intention of [a public body] to consider personnel matters related to them.”
See Rice v. Union County Regional High School Board of Education,
On March 6, 1998, asking for plaintiffs resignation, Mr. Pascrell told 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). Plaintiff charges that the meeting between Mr. Pascrell and the Freeholders violated N.J.S.A. 10:4 — 12(b)(8), as they did not provide him with advance notice. In addition, Mr. Siss seeks additional discovery from Mr. Pascrell and defendants Ea-gler and Cuccinello to determine exactly what took place at the meeting.
Based on the evidence in the record, the meeting does appear to have violated N.J.S.A. 10:4 — 12(b)(8) as plaintiff had no advance notice of it. However, the Court agrees with defendаnts that any such violation was remedied by the Board of Freeholders’ adequate notice to plaintiff of the March 24, 1999 meeting at which they voted to rescind the resolution appointing him and to terminate his employment. In addition, the Court concludes that the discovery sought by plaintiff would not reveal information that would preclude summary judgment.
See San Filippo,
Assuming that the meeting between Mr. Pascrell and the Freeholders violated the Open Public Meetings Act and regardless of what precisely took place there, the Court concludes that any violation of N.J.S.A. 10:4 — 12(b)(8) was remedied by the Freeholders’ handling of the public meet
Furthermore, the Court agrees with defendants that plaintiffs Open Public Meetings Act claim is time-barred. N.J.S.A 10:4-15 provides that actions taken in violation of the statute are “voidable in a proceeding in lieu of prerogative writ in the Superior Court, which proceeding may be brought by any person within 45 days after the action sought to be voided has been made public,” subject to the conditions discussed above regarding the public body’s ability to cure past violations through a de novo consideration. (Id.) The Court agrees with defendant that any action taken at the meeting between the Freeholders and Mr. Pascrell was “made public” on March 7, 1998 when Mr. Pasc-rell told plaintiff of the sentiments expressed at the meeting and asked for his resignation. Accordingly, plaintiff had 45 days from March 6, 1998 to file his action in lieu of prerogative writ in the Superior Court. He did not file his Complaint until April 27, 1998. For that reason as well, the Court will grant defendants summary judgment as to the Open Public Meetings Act claim.
B. Violation of the NJLAD
The Court will also grant summary judgment to defendants as to plaintiffs NJLAD claim. As defendants note, and plaintiff does not contest, the NJLAD prohibits employers from discriminating in employment on numerous bases, but these do not include political affiliation. See N.J.S.A. 10:5-12(a) (prohibiting discrimination in employment based on race, creed, color, national origin ancestry, age, marital status, affectional or sexual orientation, genetic information, sex, atypical hereditary cellular or blood trait, liability for service in the United States military, nationality, and refusal to submit to a genetic test or make available the results of a genetic test to an employer); N.J.S.A. 10:5-4.1 (prohibiting discrimination in employment on the basis of handicap). Accordingly, plaintiffs claim is not cognizable under the statute. The Court will grant defendants’ motion for summary judgment as to plaintiffs NJLAD claim.
C. Infringement of Rights to Free Speech and Association Under the First and Fourteenth Amendments to the United States Constitution.
The Court will also grant summary judgment to defendants as to plaintiffs claim that they violated his rights to free speech and association under the first and fourteenth amendments to the United States Constitution. The Court understands this claim to be asserted under the federal Civil Rights Act, 42 U.S.C. § 1983. There is no dispute that defendants acted
In
Elrod, v. Burns
In
Branti,
the Supreme Court refined its analysis, explaining: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”
Elrod, Branti and their progeny require courts to consider various factors in evaluating whether a public employee may be dismissed based on political affiliation. As articulated by the Court of Appeals for this Circuit, these include:
whether an employee is a “nonpolicy-making, nonconfidential government employee,” ... whether a difference in party affiliation would be “highly likely to cause an official to be ineffective in carrying out” the duties of the position, ... whether “the employee has meaningful input into the decision making concerning the nature and scope of a major ... program,” ... or whether the employee “acts as an advisor or formulates plans for the implementation of broad goals.”
Boyle,
The Court of Appeals for the Third Circuit has on three occasions considered whether a publicly-employed attorney could be dismissed based on party affiliation.
See Ness v. Marshall,
In
Ness v. Marshall,
The Court of Appeals was unpersuaded by the plaintiffs’ evidence that their past responsibilities had been ministerial or technical in nature. (Id. at 521). It explained that although the plaintiffs’ role might have been limited under the former administration, the administrative code permitted future administrations to rely on them “for the legal advice necessary to implement policy.” (Id. at 522). Similarly, with respect to the second assistant solicitor, whose duties had been highly constricted under the former administration, the Court of Appeals noted that future administrations could choose to distribute assignments “in an entirely different fashion” so as to rely more extensively on employees in that position. (Id.)
Later, in
Mummau v. Ranch,
Finally, in
Wetzel v. Tucker,
Once again, the Court of Appeals rejected the argument that the plaintiffs role was confined to the technical or ministerial function of providing objective legal advice:
Tough legal questions are not answered mechanically, but rather by the exercise of seasoned judgment. Judgment is informed by experience and perspective, and any evaluation of the risks involved in such a decision (including the determination as to whether it is advisable to pursue litigation) is informed, in turn, by values. Moreover ... these issues are not purely legal; clients employ counsel to assess whether the goals are indeed worth the risks.
(Id.
at 386). “[T]o be confident in its Solicitor’s advice on matters ‘intimately related’ to Authority policy,” the Court explained, “the Board must have the right to demand that his loyalties lie with it and its agenda.... Given the political ramifications of any attendant legal advice, confidence sometimes may come only with the assurance that the Solicitor shares the same political ideology as the Board.”
The position of assistant county counsel is not materially different from the positions at issue in Ness, Mummau and Wet-zel. Under the Passaic County Administrative Code, the duties of the Department of Law, and accordingly of assistant county counsel, include, inter alia: “[attending meetings of the Board and giv[ing] opinions and rulings on questions of law which may arise at Board meetings;” “[a]d-vis[ing] the Board, the Administrator and all County agencies ... with respect to their official responsibilities;” “[plreparing and/or supervising] the legal form and sufficiency of all contracts ... and all resolutions and actions referred to the Department;” “Representing] the County in all ... litigation” and other proceedings and “recommending] to the Board settlement of any matter;” reporting to the Board on the status of litigation and other proceеdings related to its interests; and “Rendering] such advisory opinions as are requested by the Board.” (Pascrell Aff., Exh. G, Passaic County Administrative Code, § 18.2).
These functions are as “intimately related” to policy as those associated with the positions at issue in
Ness, Mummau,
and
Wetzel. Ness,
Plaintiff argues that his own role as Assistant County Counsel was limited to the sort of technical and ministerial responsibilities that the plaintiffs in
Ness, Mummau,
and
Wetzel
also claimed they performed. As the Court of Appeals emphasized in all of those cases, the proper analysis focuses on the responsibilities of the position in question, regardless of whether one in that position could conceivably operate in a limited or technical manner, or whether the plaintiff actually did so under a previous administration.
See Ness,
In addition, as the Court of Appeals explained in
Ness,
“courts must appreciate that future administrations may choose to allocate tаsks so as to rely more extensively on employees whose positions had previously carried limited responsibilities.”
Ness,
Even during plaintiffs tenure, the responsibilities of his position had policy ramifications of the sort explored in
Wet-zel.
For example, plaintiff wrote in a memorandum that his “duties include[d] working with the Department on procedures and policies and any special interest issues that affect the jail, Sheriffs Patrol and/or courthouse.” (Pascrell Aff., Exh. B). In addition, he recorded time spent
Plaintiff calls to the Court’s attention the case of
Pillsbury v. Board of Chosen Freeholders of County of Monmouth,
In
Pillsbury,
the court relied heavily on a statutory provision requiring that “[i]n every county the board of chosen freeholders shall appoint a county counsel,” and further mandating that “[t]he term of office of the county counsel shall be 3 years.”
See
N.J.S.A. 40A:9-43. It concluded that the statutory provision evidenced the legislature’s intent that “the county counsel’s term should continue notwithstanding political changes.”
In contrast, the position of assistant county counsel is not statutorily required and its term is not statutorily mandated. Rather, a Board of Freeholders appoints an assistant county counsel at its discretion pursuant to a statutory provision which states:
In addition to the officers and employees whose appointment is specifically provided for by law, the board of chosen freeholders of the county ... may appoint or provide for the appointment of such other officers, agents and employees as may be required for the execution of the powers conferred upon said board ... or any board or officer of the county....
N.J.S.A. 40A:9-9. Thus, there is no statutory provision evidencing any legislative intent that assistant county counsels remain in office notwithstanding political changes.
In addition, as will be discussed further below, assistant county counsels are not employees who are “removable ... only for cause.” N.J.S.A. 40A:9-25. Thus, they are not statutorily protected from being discharged “for political reasons.” (Id.)
The duties of county counsel, like those of assistant county counsels, are fundamentally indistinguishable from the duties of the attorneys in Ness, Mummau and Wetzel. Under Pillsbury, the Court would hesitate, however, to determine that political affiliation is an appropriate qualification for the position of county counsel, despite these Third Circuit precedents. Although Pillsbury was decided outside the first amendment context, it is an explication of the nature of that position, which is the fundamental issue in Elrod/Branti analysis.
Still, the rationale of
Pillsbury
does not extend to the distinct position of assistant county counsel. There is no evidence that the legislature intended assistant county counsels to serve despite political changes, and they are not statutorily protected from being terminated for political reasons. Thus, the Court concludes, consistent with
Finally, the Court rejects plaintiffs argument that the
Elrod/Branti
exception does not apply here because plaintiff was a fixed term, rather than an at-will employee.
(See
Plaintiffs Br. at 34-39). Whether an employee serves for a fixed term or at will, the employee has the same first amendment rights, since those, of course, exist independently of any other rights to continued employment.
See Wetzel,
In summary, the Court concludes that “party affiliation is an' appropriate requirement for the effective performance of the public office” of assistant county counsel for Passaic County.
Branti,
D. Infringement of Rights to Free Speech and Association Under the New Jersey Constitution
The Court also grants defendants’ motion for summary judgment as to plaintiffs claim under the New Jersey Constitution. Plaintiff contends that defendants infringеd his rights under the State Constitution by terminating him because of his political affiliation. According to defendants, unlike the United States Constitution, the New Jersey Constitution offers no protection against patronage dismissals. Plaintiff does not advance any argument to the contrary.
It is true, as defendants suggest, that constitutional challenges to patronage dismissals in the New Jersey courts have generally proceeded under the first amendment of the United States Constitution, rather than the free speech provision of the New Jersey Constitution, found at article 1, paragraph 6.
4
See, e.g., Battaglia, 88
N.J. at 48,
E. Denial of Due Process Rights Under the Fourteenth Amendment to the United States Constitution
The Court will also grant summary judgment to defendants on plaintiffs claim that they denied him due process by failing to “serve him with charges and provide a hearing.” (Compl., ¶ 4). Again using the 42 U.S.C. § 1983 analysis, there can be no dispute that defendants acted “under color of’ state law. (Id.) The question therefore is whether they deprived plaintiff of “rights, privileges, or immunities secured by the Constitution and laws,” in this case, the due process rights guaranteed by the fourteenth amendment. (Id.)
In support of their motion for summary judgment on that claim, defendants argue that plaintiff did not have a protected property interest in his position because he was an at-will employee. (See Defendants’ Br. at 9-10 n. 2). The Court agrees. 6
The Due Process Clause of the fourteenth amendment mandates that no “State shall deprive any person of, life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. At-will employees do not have protected property interests in their positions within the meaning of the fourteenth amendment.
See Robertson v. Fiore,
Under New Jersey law, public employees may be discharged with or without cause, unless their positions are otherwise protected, for example, by contract, collective bargaining agreement, civil service tenure, or a fixed term.
See Nicoletta v. North Jersey District Water Supply Commission,
The Court is unpersuaded. The power to adopt a statute, ordinance, or resolution generally includes the power to repeal it.
See In re Meadowlands Communications Systems, Inc.,
The power that created [the terms] can destroy them. The tenure of any officer is held at the will of the Board. He can be stripped of his salary, deposed from office, or be left unsheltered by reason of the abolition of the office itself at any moment the Board chooses to exercise its power.
(Id.) (citations omitted).
More recently, in
Campbell v. Atlantic County Board of Freeholders,
The court rejected that claim. There, as here, no evidence was presented “to indicate that either plaintiff or defendant attributed any contractual effect to th[e] phrase” regarding the term of his appointment.
(Id.
at 322,
Following Campbell and the principles set forth in Greene, this Court determines that plaintiff did not gain a property interest in his position by virtue of his December 1997 appointment to a three-year term.
Plaintiffs reliance on
Pillsbury v. Board of Chosen Freeholders of County of Monmouth,
The Court finds further support for its conclusion in the Rules of Professional Conduct. The Court agrees with defendants that those rules imposed upon plaintiff the ethical obligation to “withdraw from the representation of a cliеnt ... if
In Pillsbury, the court held that the statutory fixed-term requirement was unaffected by DR 1 — 220(b)(4). This Court determines, however, that that result hinged on the specific legislative creation of the office of county counsel and its term. Under Pillsbury, the county counsel’s relationship with the Board of Freeholders is not governed by the standard rules regarding attorneys and clients because the county counsel holds a public office whose parameters are defined by the legislature. As the Appellate Division explained in Pillsbury:
The post of county counsel is a public office ... [, a] creature! ] of the Legislature. The Legislature alone may determine the duties and the interrelation among the public offices it establishes. Within the constitutional framework the Legislature is the architect of the structure of government.... [T]he attorney holding the office is not only involved in the practice of law, but also, because of his status as a public officer, has the duty of carrying on operations of government. ... Contrary to the suppositions of the board, the office of county counsel exists for the protection of all of the citizens of the county, and not solely for the benefit of the freeholders elected to govern that county.
In contrast, in
Taylor v. Board of Education for the School District of the City of Hoboken,
The Appellate Division in
Taylor
did not expressly articulate the distinction between the circumstances before it and those in
Pillsbury. See Hiering v. Township of Jackson,
The Appellate Division seems to have drawn this distinction in
Hiering v. Township of Jackson,
To the extent that the Pillsbury rationale may be inconsistent with the resultreached in Taylor, we regard the latter to be controlling in the sense that it holds that Supreme Court disciplinary rules generally are applicable even to attorneys holding public office in that capacity. However, we have no need to discuss here which might govern if there is any tension between a Legislative provision and a disciplinary rule.
(Id.
at 10,
The Court concludes that, under New Jersey law, in the absence of a contrary statutory provision specifically applicable to attorneys, an attorney has no right to retain a position once discharged by a client under RPC 1.16(a)(3). Plaintiff can point to no statutory prоvision protecting his right to his position, and none specifically applicable to attorneys. Therefore, under RPC 1.16(a)(3), he had no right to retain his position when the Board of Freeholders sought to discharge him. For that reason as well, the Court determines that plaintiff had no protected property interest in maintaining his position within the meaning of the Due Process Clause.
The Court will grant summary judgment to defendant on plaintiffs due process claim. He was an at-will employee of the Board of Freeholders, and he had a further obligation to comply when discharged under RPC 1.16(a)(3).
F. Retaliation in Violation of Common Law Rights
Defendants do not present any arguments specifically directed to the remaining claim, for retaliation in violation of plaintiffs common law rights. However, the Court will grant summary judgment as to that claim, as well, largely for the reasons outlined above.
New Jersey law recognizes a common law claim for wrongful discharge.
See Pierce v. Ortho Pharmaceutical Corp.,
As the discussion above makes clear, the first amendment to the United States Constitution embodies a general public policy against dismissing public employees for political reasons.
See Mac-Dougall,
However, as discussed above, plaintiffs discharge did not contravene any public policy that can be divined from these sources. The position of assistant county counsel is encompassed by the
El-rod/Branti
exception to the ordinary first amendment bar on patronage dismissals. In addition, plaintiff was an at-will employee of the Board of Freeholders, not a public employeе “removable ... only for cause” and therefore statutorily protected from dismissal for political reasons. Since neither plaintiffs appointment nor his term was mandated by statute, Pillsbury’s rationale does not apply. Finally, plaintiffs termination was in accord with the public policy embodied in Rule 1.16(a)(3) of the Rules of Professional Conduct, as en
CONCLUSION
For the foregoing reasons, defendant’s summary judgment motion is granted.
ORDER
ORDERED that defendants’ motion for summary judgment be, and it hereby is, granted, and plaintiffs Complaint is hereby dismissed in its entirety.
Notes
. The Court notes that defendants’ moving papers address a claim for defamation that they apparently also discerned in Count I of the Complaint; but plaintiff's opposition brief clarifies that no such claim is asserted. (Plaintiff's Br. at 32).
. The Court agrees with defendants that if, as here, a defendant pleads the defense of qualified immunity, "the district court should resolve that threshold question before permitting discovery. ”
See Crawford-El v. Britton,
.Since this claim is dismissed as to all defendants, the Court need not address defendants' argument that the individual defendants are shielded from liability by their qualified immunity from suit. In accordance with the analysis above, however, even if the individual defendants had violated plaintiff's first amendment rights, any such rights were not "clearly established,” and those defendants accordingly are immune from suit.
See Harlow v. Fitzgerald,
. Article 1, paragraph 6 of the New Jersey Constitution provides in relevant part: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” (Id.)
.
Weisel
appears to have rested on a mistaken interpretation of
Battaglia v. County Welfare Board,
a New Jersey Supreme Court case decided exclusively under federal law, which the
Weisel
court suggested had imported fed
. The Court notes that defendants do not argue that they afforded plaintiff all the process that was due. Therefore, the Court does not consider that question here.