(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 19, l997 -- Decided March 5, 1997
PER CURIAM
In this appeal, the Court addresses the existence and/or enforceability of an alleged agreement
between the Public Defender and an Assistant Deputy Public Defender to promote him within a year of
employment.
Stephen Walsh is an Assistant Deputy Public Defender (ADPD). He had been employed in the
Bergen region office of the Office of the Public Defender from l980 to l986, when he left to begin private
practice. When he left the Bergen region office, he held the position of ADPD I. In l988, learning that
Walsh was not content in private practice, Ellen Koblitz, then Deputy Public Defender in charge of the
Hudson region office, invited Walsh to resume practice as a public defender in the Hudson region office.
Based on information provided to her by the First Assistant Public Defender, Thomas S. Smith, Koblitz
offered Walsh the position of an ADPD I with a salary of $42,266.82.
Subsequently, in an attempt to obtain the highest possible salary for Walsh, Koblitz spoke with John
DeVaney, the chief personnel officer for the Office of the Public Advocate. DeVaney constructed a plan
whereby Walsh would return to the Public Defender's Office at a lower level than that when he had left in
l986. Specifically, he would begin as an ADPD II, but would be promoted to a Level ADPD I after one
year, which would enable him to receive a salary greater than if he had started as an ADPD I. Walsh agreed
to accept the offer at the lower level, understanding that he would be promoted after a year.
After one year, Koblitz recommended Walsh for a promotion. However, Smith denied the
promotion on the ground that an ADPD II had to remain in the position for two years before becoming
eligible for promotion. However, Smith subsequently approved an extra salary increase for Walsh, which did
not materialize due to a State freeze on all promotions and salary adjustments, absent “extraordinary and
compelling” circumstances. Subsequent attempts to promote Walsh after service in the position for two
years were denied by the Public Defender due to continuing freezes.
Walsh filed a verified complaint in lieu of prerogative writ in the Superior Court, Law Division,
seeking damages for breach of the alleged oral agreement to promote him. After a bench trial, the trial
judge determined that there was an enforceable implied-in-fact contract to promote Walsh after one year to
an ADPD I and entered an award for damages and further ordered that Walsh be placed in the classification
and salary step of ADPD I as of June l994, and that he receive all the increments and raises awarded for
that position since that date.
The defendants appealed, arguing that the record did not support the existence of a firm and definite offer to promote Walsh or of any intent on the part of the defendants to make such an offer. Furthermore, the defendants maintained that the record could not support the trial judge's conclusion that defendants' representatives had actual or delegated authority to promise Walsh a promotion. Two members of the Appellate Division panel affirmed the judgment of the trial court for the reasons expressed by the trial judge. However, in a dissenting opinion, Judge Skillman disagreed with the majority conclusion, expressing
the opinion that, so long as his personnel actions were not invidiously discriminatory, the Public Defender
had unfettered discretion to hire, discharge, transfer, demote or withhold promotion from an ADPD, limited
only by certain external statutory constraints imposed on him and other high level state executive officials by
the Legislature.
The defendants appealed to the Supreme Court as of right.
HELD: The judgment of the Appellate Division is REVERSED substantially for the reasons expressed in
the reported dissenting opinion below. The Public Defender's failure to initiate the promotion of Walsh to
the position of ADPD I constituted a valid exercise of his statutory and regulatory powers.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
93 September Term 1996
STEPHEN P. WALSH,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
THE PUBLIC ADVOCATE, OFFICE OF THE
PUBLIC DEFENDER, PUBLIC DEFENDER,
Defendant-Appellant.
Argued February 19, 1997 -- Decided March 5, 1997
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
290 N.J. Super. 1 (1996).
Lewis A. Scheindlin, Deputy Attorney General,
argued the cause for appellant (Peter G.
Verniero, Attorney General of New Jersey,
attorney; Mary C. Jacobson, Assistant
Attorney General, of counsel; Mr. Scheindlin
and Perry L. Lattiboudere, Deputy Attorney
General, on the briefs).
Matthew S. Rogers argued the cause for
respondent (Contant, Scherby & Atkins,
attorneys; Andrew T. Fede, on the brief).
PER CURIAM
The judgment is reversed, substantially for the reasons
expressed in Judge Skillman's dissenting opinion of the Appellate
Division, reported at 290 N.J. Super. 13 (1996).
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.
NO. A-93 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STEPHEN P. WALSH,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
THE PUBLIC ADVOCATE, OFFICE OF THE
PUBLIC DEFENDER, PUBLIC DEFENDER,
Defendant-Appellant.
DECIDED March 5, 1997
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY