SYLLABUS
(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 March 29, 2005 -- Decided June 22, 2005
LaVECCHIA, J., writing for a unanimous Court.
This is an unusual case. It involves claims by a former county prosecutor that the Governor and Attorney General violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, when they exercised their statutory power to supersede him as prosecutor. The prosecutor also claims that County Freeholders similarly violated CEPA when they underfunded his budget.
Andrew N. Yurick, II, was nominated Gloucester County Prosecutor in 1997 by then-Governor Christine Todd Whitman and was confirmed by the State Senate. Yurick’s five-year term ended on January 31, 2002.
On February 1, 2002, Governor McGreevey sent a letter to Attorney General David Samson requesting that, pursuant to N.J.S.A. 52:17B-106, the Attorney General supersede the Gloucester County Prosecutor for the purpose of prosecuting all of the criminal business of the State in Gloucester County. In the letter, Governor McGreevey stated that Yurick’s removal was necessary because a January 2002 audit identified a series of deficiencies in the management of the office and raised concerns about the integrity of the criminal justice system in that county.
Attorney General Samson superseded Yurick as the Prosecutor of Gloucester County that day. In written notice to Yurick, Samson stated that the supersedure was ordered pursuant to a written request by the Governor, and added that both Samson and the Governor were sufficiently concerned about the integrity of the criminal justice system that, in order to maintain the public’s confidence and ensure the continued efficient functioning of the prosecutor’s office, the supersedure was necessary.
In September 2002, Yurick filed this action against the State, McGreevey, Samson, and the Gloucester County Board of Freeholders, asserting violations of CEPA and his federal constitutional rights under 42 USCA §§ 1983 and 1985. Yurick claimed that he was the subject of retaliatory acts by the defendants. Specifically, Yurick alleged that the Freeholders retaliated against him and his office because of political affiliation, his investigation into alleged corruption and other wrongdoing by individuals connected to the Freeholders, and his objection to interference by the Freeholders. The retaliatory actions allegedly taken by the Freeholders included refusing to approve essential budgetary items and reducing the salaries of employees within Yurick’s office. In respect of the State defendants, the complaint alleged that they interfered with the independent powers, duties and functions of Yurick as the county prosecutor and they did not comply with the strict requirements for duly appointing a successor for his office.
In lieu of filing an answer, both the State and the Freeholders moved to dismiss the complaint with prejudice. The trial court granted the motions, holding that the complaint failed to state a claim. The trial court concluded that CEPA was not intended to protect an employee of Yurick’s status because a prosecutor is not the sort of employee who was in fear of losing his position or who is especially vulnerable.
A majority of the Appellate Division affirmed the dismissal of Yurick’s federal claims, but reversed the dismissal of the CEPA claims. Citing CEPA’s purpose to provide a broad protection against employer retaliation for employees who act in the public interest, the Court found no basis to conclude that the Legislature intended to preclude a CEPA action brought by a county prosecutor.
Judge Hoens dissented. She found that Yurick was not within the class of people that CEPA was designed to protect and, in any event, Yurick failed to state a cognizable claim. Among other problems with Yurick’s claims, the dissent found that they related to personal wrongs unrelated to any concern for the public good. The dissent characterized Yurick’s claims as personal dissatisfaction with a funding decision entrusted by statute to the Freeholders and a choice to supersede that, in the final analysis, was the Governor’s to make.
Defendants appealed as of right on the CEPA claims based on the dissent.
HELD: Yurick has failed to state a claim because the specific facts alleged here do not include the type of retaliatory action that was made actionable by CEPA.
1. The purpose of CEPA is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. To establish a prima facie cause of action under CEPA, a plaintiff must demonstrate a reasonable belief that the employer’s conduct violated either a law or regulation or a clear mandate of public policy; he or she performed a “whistle-blowing” activity; an adverse employment action was taken against him or her; and a causal connection exists between the whistle-blowing activity and the adverse action. (pp. 8-10)
2. In New Jersey, county prosecutors are vested with broad discretionary powers, including the authority to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws. Nonetheless, the county prosecutor’s law enforcement function remains at all times subject to the supervision and supersession power of the State. The Attorney General is authorized to maintain general supervision over county prosecutors with a view to obtaining effective and uniform enforcement of the criminal laws throughout the State. The general supervision power permits the Attorney General, in the best interests of the State, to participate in, initiate, or supersede a county prosecutor in respect of any investigation, criminal action or proceeding. And, whenever requested in writing by the Governor, the Attorney General is required to supersede the county prosecutor. N.J.S.A. 52:17B-106. (pp. 10-12)
3. In respect of the county prosecutor’s relationship with county officials, the county prosecutor’s law enforcement function is unsupervised by county government or any other agency of local government. However, the county exercises considerable control over the fiscal operations of the county prosecutor’s office, including appropriation of funds expended by the county prosecutor for staff salaries and in investigating and prosecuting crime. (p. 12)
4. Yurick attempts to characterize the inadequacies of the budget enacted for his office by the county freeholders as the equivalent of retaliatory action under CEPA. If the county’s proposed funding of the budget is not satisfactory to the prosecutor, the Legislature provided a mechanism to bring an independent arbiter into the process – the assignment judge of the vicinage. N.J.S.A. 2A:158-7. The statute commits to the assignment judge the authority to see to it that the needs of the county prosecutor are met if they are not provided for by the freeholders. Here, Yurick did not complete that process. In the face of Yurick’s abandonment of the legislatively created budget process, the Court cannot conclude that he has pled a prima facie claim of retaliatory action under CEPA. The Court rejects Yurick’s contention that the inadequacy in his budget, untested by an application before a neutral assignment judge, constitutes a claim of retaliatory action. That core factual failing dooms Yurick’s CEPA cause of action against the County Freeholders. (pp. 12-15)
5. The Court does not regard the act of supersession, accomplished pursuant to a legislative process involving the Governor and the Attorney General at the expiration of Yurick’s five-year term of office, to be a wrong cognizable under CEPA. Yurick may have hoped to remain as a holdover officer in charge of the operation of his office at the conclusion of his five-year term, but he had no reasonable expectation that he would be permitted to do so. Supersession must occur when the Governor requests it, and the Governor has wide discretion in the exercise of that power. The Court refuses to equate the fact that the Attorney General took over operation of the Gloucester County Prosecutor’s Office at the expiration of the prosecutor’s term of office with retaliatory action constituting an element in a CEPA cause of action. (pp. 15-17)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for REINSTATEMENT of judgment for defendants.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion. JUSTICES ALBIN and WALLACE did not participate.
SUPREME COURT OF NEW JERSEY
A-34/ 35 September Term 2004
ANDREW N. YURICK,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY; THE HONORABLE JAMES E. MCGREEVEY, GOVERNOR, STATE OF NEW
JERSEY; and DAVID SAMSON, ATTORNEY GENERAL, STATE OF NEW JERSEY and GLOUCESTER COUNTY
BOARD OF CHOSEN FREEHOLDERS, jointly and severally, and in their official and individual
capacities,
Defendants-Appellants.
Argued March 29, 2005 – Decided June 22, 2005
On appeal from the Superior Court, Appellate Division.
Larry R. Etzweiler, Senior Deputy Attorney General, argued the cause for appellants State
of New Jersey, Honorable James E. McGreevey and David Samson (Peter C. Harvey,
Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel).
William M. Tambussi argued the cause for appellant Gloucester County Board of Chosen
Freeholders (Brown & Connery, attorneys; Mr. Tambussi and Ila Bhatnagar, on the briefs).
Linda Wong argued the cause for respondent (Wong Fleming, attorneys; Ms. Wong and
Henry Oh, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
This is an unusual case. The plaintiff, a former county prosecutor, asserts that
the Governor, the Attorney General and the State of New Jersey violated the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, when they exercised their
statutory power to supersede him as prosecutor after the expiration of his five-year
term and that county officials similarly violated CEPA when they underfunded his budget.
In respect of the latter claim, plaintiff notably never availed himself of the
statutory process designed to resolve budget disputes through a proceeding before a neutral
decision-maker, the assignment judge. For the reasons that follow, we find that this
constitutional officer has no cognizable CEPA claim against those state officials for the
invocation of statutory supersession powers. We similarly find he has failed to state
a CEPA cause of action against county officials for an allegedly inadequate budget
in the face of his failure to invoke the very statutory process designed
to prevent that eventuality.
Andrew N. Yurick, II, the former Gloucester County Prosecutor who brought this CEPA
action against the State of New Jersey, Governor James E. McGreevey, Attorney General
David Samson, and the Gloucester County Board of Chosen Freeholders, had his claim
dismissed by the trial court. The Appellate Division reversed that determination. This appeal
comes before us based on the dissent of Judge Hoens, who found that
plaintiff neither had standing to pursue a CEPA claim nor had stated a
claim cognizable under CEPA. As we agree that plaintiff has not stated a
claim under CEPA, we reverse the judgment of the Appellate Division.
In 1997, plaintiff was nominated as Gloucester County Prosecutor by then-Governor Christine Todd Whitman and was confirmed by the New Jersey State Senate. Pursuant to Article 7, Section 2, Paragraph 1 of the New Jersey Constitution and N.J.S.A. 2A:158-1, plaintiff was appointed to serve a term of five years, and until the appointment and qualification of a successor.
Plaintiff’s five-year term ended on January 31, 2002. On February 1, 2002, Governor James E. McGreevey sent a letter to Attorney General David Samson, requesting that, pursuant to N.J.S.A. 52:17B-106, the Attorney General “supersede the Gloucester County Prosecutor [Andrew N. Yurick, II] for the purpose of prosecuting all of the criminal business of the State in Gloucester County.” In the letter, Governor McGreevey stated that plaintiff’s removal was necessary because a January 2002 audit “outlined a series of deficiencies in the management of that office” that “raised a significant concern about the integrity of the criminal justice system in that county and whether the citizens of Gloucester County have access to the full and fair administration of justice.” The Governor instructed that the supersedure should “commence immediately” upon Samson’s receipt of the letter. That day the Attorney General superseded Yurick as the Prosecutor of Gloucester County. In his written notice to Yurick, also dated February 1, 2002, Samson stated that the supersedure was ordered pursuant to a written request by Governor McGreevey, and added that both Samson and the Governor were “sufficiently concerned for the integrity of the criminal justice system that, in order to maintain the public’s confidence and ensure the continued efficient functioning of the prosecutor’s office, this supersedure [was] necessary.”
In September 2002, plaintiff filed this action against the State of New Jersey, McGreevey, and Samson (collectively, the State), and the Gloucester County Board of Chosen Freeholders. See footnote 1 Plaintiff asserted violations of CEPA and of his federal constitutional rights under 42 U.S.C.A. §§1983 and 1985. He claimed that he was the subject of retaliatory acts by the two groups of defendants.
Specifically, plaintiff alleged that the Freeholders retaliated against him and his office because of his political affiliation, his investigation into alleged corruption and other wrongdoing by individuals politically and personally connected to the Freeholders, and his objection to interference by the Freeholders into his investigation. The retaliatory actions allegedly taken by the Freeholders included refusing to approve essential budgetary items for the Prosecutor’s Office, failing to confer with plaintiff in deciding key budgetary matters, reducing the salaries and raises of non-contractual employees within plaintiff’s office, and causing the illegal superseding of his position as Prosecutor of Gloucester County. In respect of the State defendants, the complaint alleged that they interfered with the independent powers, duties and functions of plaintiff as the county prosecutor and that the State defendants’ actions did not comply with the strict requirements for duly appointing a successor for his office. The complaint also alleged that the Attorney General failed to initiate appropriate action against the County when plaintiff opposed the Freeholders’ practices affecting his office, and that the State defendants issued an unsubstantiated and politically motivated report on plaintiff’s performance as County Prosecutor.
In lieu of filing an answer, both the State and the Freeholders moved to dismiss the complaint with prejudice. The trial court granted the motions, holding that the complaint failed to state a claim upon which relief could be granted. The court concluded that “CEPA is not intended to protect an employee of [plaintiff’s] status” because plaintiff “[was] not the sort of employee who was in fear of losing his position or is considered to be especially vulnerable.” The court further held that even if plaintiff could bring a claim under CEPA, the claim would be barred under Rule 4:69-6 because plaintiff failed to challenge directly his supersedure by pursuing an action in lieu of prerogative writs within forty-five days of being superseded as Prosecutor of Gloucester County.
A majority of the Appellate Division affirmed the dismissal of plaintiff’s federal claims, but reversed the dismissal of the CEPA claims. First, the panel rejected the argument that plaintiff’s claims were barred because he did not pursue an action in lieu of prerogative writs within the time limit prescribed by Rule 4:69-6. The court concluded that a plaintiff, aggrieved by the actions of State officials, was not precluded from bringing a statutory or constitutional cause of action against those officials for money damages. As for the CEPA claims, the court concluded that the trial court misconstrued the scope of CEPA’s applicability as well as its intent. Citing CEPA’s purpose to provide broad protection against employer retaliation for employees who act in the public interest, the Court found no basis to conclude that the Legislature intended to preclude a CEPA action brought by a county prosecutor. The panel acknowledged that there may be obstacles to plaintiff’s claims when tested by discovery, but held that it was constrained to conclude that plaintiff’s complaint stated a claim under CEPA.
Judge Hoens dissented. She found that the statute did not apply to plaintiff because he was not within the class of people that the statute was designed to protect and, in any event, he failed to state a cognizable claim. Four points were advanced in her dissent. First, a county prosecutor is not an “employee” in the traditional sense applied in CEPA because a county prosecutor has broad statutory powers and the limits on those powers are few. Second, a CEPA cause of action was not meant to be available to the county prosecutor because a county prosecutor is not the type of vulnerable person that requires CEPA’s protection. The county prosecutor has the tools within his control to root out wrongdoing, and has no need to “blow the whistle” at all. Third, the “retaliatory acts” alleged by plaintiff were inadequate to state a cause of action under CEPA. And, last, plaintiff’s claims constituted “personal” wrongs that were unrelated to any concern for the public good as was envisioned under CEPA. Specifically, the dissent characterized plaintiff’s claim as “personal dissatisfaction with a funding decision entrusted by statute to the Freeholders and a choice to supersede that, in the final analysis, was the Governor’s to make.”
Defendants appealed as of right on the CEPA claims. R. 2:2-1.
The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, was enacted on the heels of this Court’s seminal decision in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), that recognized the public benefits derived from providing protection to vulnerable employees who have the courage to speak out against or to decline to participate in an employer’s actions that are contrary to public policy mandates. The Legislature codified in CEPA its purpose “to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431 (1994). Thus, CEPA is widely understood as promoting the “strong public policy” of “‘reaffirm[ing] . . . this State’s repugnance to an employer’s retaliation against an employee who has done nothing more than assert statutory rights and protections.’” Ibid. (citation omitted).
Specifically, CEPA provides that
[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public
body an activity, policy or practice of the employer or another employer, with
whom there is a business relationship, that the employee reasonably believes is in
violation of a law, or a rule or regulation promulgated pursuant to law,
. . .;
b. Provides information to, or testifies before, any public body conducting an investigation,
hearing or inquiry into any violation of law, or a rule or regulation
promulgated pursuant to law by the employer or another employer, with whom there
is a business relationship, . . .;
c. Objects to, or refuses to participate in any activity, policy or practice
which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated
pursuant to law . . .;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public
health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3.]
To establish a prima facie cause of action under CEPA, a plaintiff must
demonstrate that
(1) he or she reasonably believed that his or her employer’s conduct was
violating either a law, rule, or regulation promulgated pursuant to law, or a
clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity
described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him
or her; and (4) a causal connection exists between the whistle-blowing activity and
the adverse employment action.
[Dzwonar v. McDevitt,
177 N.J. 451, 462 (2003) (citation omitted).]
With that in mind, we turn to the unique setting of plaintiff’s CEPA
claims.
A.
In New Jersey, the county prosecutor is constitutionally created and statutorily endowed with powers that arm him or her to perform wide ranging duties. See Wright v. State, 169 N.J. 422, 437 (2001) (noting that county prosecutor is “a constitutionally established office”). Generally stated, the county prosecutor is responsible for the prosecution of crimes committed in the county, subject to law and to action by the grand jury. See State v. Josephs, 79 N.J. Super. 411, 415 (App. Div. 1963) (citing N.J.S.A. 2A:158-4). County prosecutors are “vested with broad discretionary powers,” In re Ringwood Fact Finding Comm., 65 N.J. 512, 526 (1974), including the authority to use “‘all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.’” Rolleri v. Lordi, 146 N.J. Super. 297, 305 (App. Div. 1977) (quoting N.J.S.A. 2A:158-5).
County prosecutors are expected to interact freely with county and state officials in the performance of their respective responsibilities. As we have noted before, “[t]here is no ordinary chain of command between the attorney-general and the county prosecutors,” Morss v. Forbes, 24 N.J. 341, 369 (1957), and the State is not “responsible for the daily functioning of the prosecutor’s office.” Id. at 371. Nonetheless, “the county prosecutor’s law enforcement function . . . remains at all times subject to the supervision and supersession power of” the State. Wright, supra, 169 N.J. at 452. Under N.J.S.A. 52:17B-103, the Attorney General is authorized to “maintain a general supervision over . . . county prosecutors with a view to obtaining effective and uniform enforcement of the criminal laws throughout the State.” The “general supervision” power permits the Attorney General, in the best interests of the State, to participate in, initiate, or supersede a county prosecutor in respect of any investigation, criminal action or proceeding. N.J.S.A. 52:17B-107. Thus, “‘the Attorney General’s supersedure power appears to have been bestowed with the understanding that it was intended to ensure the proper and efficient handling of the county prosecutors’ ‘criminal business.’’” Wright, supra, 169 N.J. at 438 (quoting Coleman v. Kaye, 87 F.3d 1491, 1501 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed.2d 691 (1997)). Moreover, “[w]henever requested in writing by the Governor, the Attorney General shall . . . supersede the county prosecutor.” N.J.S.A. 52:17B-106. The Governor is also given the power to remove the county prosecutor from office “for cause after a public hearing and upon due notice and an opportunity to be heard in his defense.” N.J.S.A. 52:17B-110.
In respect of the county prosecutor’s relationship with county officials, “the county prosecutor’s law enforcement function is unsupervised by county government or any other agency of local government.” Wright, supra, 169 N.J. at 452. However, the county exercises considerable control over the fiscal operations of the county prosecutor’s office. Id. at 440. The county pays the salary established by law for the county prosecutor, N.J.S.A. 2A:158-13, and sets the salaries of key members of the county prosecutor’s staff. N.J.S.A. 2A:158-15.3. Additionally, the county board of chosen freeholders appropriates the funds expended by the county prosecutor in investigating and prosecuting crime. N.J.S.A. 2A:158-7. And, the county board of chosen freeholders has the authority to request the Attorney General to exercise his supersedure powers over a county prosecutor. N.J.S.A. 52:17B-106.
Although the dissent below addressed the broader issue of a county prosecutor’s standing to bring a CEPA cause of action, we find it unnecessary to decide that question. Because we are persuaded that on the specific facts here we do not have the type of alleged “retaliatory action” that was made actionable by CEPA, we conclude that plaintiff has failed to state a claim cognizable under CEPA.
Plaintiff attempts to characterize the inadequacies that he perceived in the salaries established by the county freeholders for staff in his office, as well as the overall adequacy of the budget enacted for his office, as the equivalent of “retaliatory action” under CEPA. See footnote 2 The comparison fails, however, when scrutinized in the context of the legislative budget process that pertains to the county prosecutor’s office. See N.J.S.A. 2A:158-7; see also In re Bigley, 55 N.J. 53 (1969). The statutory scheme contemplates that a county prosecutor will meet with county officials in an attempt to persuade the county as to the needs of the office and, if persuasion does not succeed, will consider mediation on points of fiscal disagreement. Id. at 61-62. If the county’s proposed funding of the budget is not resolved to the prosecutor’s satisfaction, the Legislature provided a mechanism for the prosecutor to bring an independent arbiter into the process to hear the prosecutor’s complaint of fiscal inadequacy -- to wit, the assignment judge of the vicinage. Specifically, N.J.S.A. 2A:158-7 provides that
[a]ll necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to by the prosecutor and approved, under his hand, by a judge of the superior court, be paid by the county treasurer whenever the same shall be approved by the board of chosen freeholders of such county. The amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the assignment judge of the superior court for such county.
[(Emphasis added).]
The statute commits to the assignment judge the authority to see to it
that the needs of the county prosecutor are met if they are not
provided for by the county freeholders. Bigley, supra, 55 N.J. at 56. The
budget is not set until the assignment judge decides the matter, unless the
prosecutor sooner ends the process by abandoning it.
Thus, the Legislature created a process whereby a prosecutor would have an adequate
budget established for his or her office each fiscal year. Here, plaintiff did
not complete that process. Plaintiff never made a Bigley application in respect of
his budget. The prosecutor bears the responsibility to bring such an application if
he or she continues to believe that the budget for the county prosecutor’s
office is inadequate. That is the case also for plaintiff’s claim of inadequacy
in the setting of salaries for key personnel in his office, which should
have been dealt with as part of the budget-setting process.
In the face of plaintiff’s abandonment of the legislatively created budget process, we
cannot conclude that plaintiff has pled a prima facie claim of retaliatory action
under CEPA in respect of the funding of his office by the County
Freeholders. We reject the bald contention that the inadequacy that plaintiff perceived in
his budget overall, or in salaries specifically -– untested by an application before
a neutral assignment judge in completion of the statutory process for establishing the
budget for his office -– constitutes a prima facie claim of “retaliatory action.”
We cannot presume, as plaintiff would have us presume, that the budget was
inadequate. That core factual failing dooms plaintiff’s CEPA cause of action against the
County Freeholders. Plaintiff has not pled any cognizable retaliatory action by the County
Freeholders.
Similarly, plaintiff claims that his supersedure by State defendants constituted “retaliatory action” under
CEPA. As a matter of law, we do not agree. We do not
regard the diminution in power of this constitutional officer, which was accomplished pursuant
to a legislative supersession process involving the Governor and the Attorney General at
the expiration of plaintiff’s five-year term of office, to be a wrong cognizable
under CEPA. Pursuant to the supersession, plaintiff technically continued to hold his office;
however, he no longer had the power of control over the day-to-day operations
of the prosecutor’s office and the legislative process permitted the wresting of that
control from him. See N.J.S.A. 52:17B-106 (stating that upon supersedure, “the county prosecutor
. . . shall exercise only such powers and perform such duties as
are required of [him] by the Attorney General”). Although plaintiff would have been
entitled to be paid for any services that were required of him, see
Winne v. County of Bergen,
21 N.J. 311, 323 (1956), it appears that
the Attorney General did not require plaintiff to perform any duties following the
supersedure. The Attorney General took over the operation of the county prosecutor’s office.
Plaintiff may have hoped to remain as a holdover officer in charge of
the operation of his office at the conclusion of his five-year term, but
he had no reasonable expectation that he would be permitted to do so.
Supersession must occur when the Governor requests it, and the Governor has wide
discretion in the exercise of that power. Compare N.J.S.A. 52:17B-106 (authorizing supersession when
in furtherance of “[the] interests of the State”) with N.J.S.A. 52:17B-110 (authorizing removal
of prosecutor “for cause”). That said, we decide only this case and do
so on the basis of the specific facts involved. We refuse to equate
the fact that the Attorney General took over operation of the Gloucester County
Prosecutor’s Office at the expiration of the prosecutor’s term of office with “retaliatory
action” constituting an element in a CEPA cause of action. Supersession simply is
not the equivalent of removal from office under N.J.S.A. 52:17B-110.
In sum, we hold that the legislative process for supersession was followed and
its execution in respect of plaintiff does not constitute “retaliatory action” creating a
cognizable cause of action under CEPA.
The judgment of the Appellate Division is reversed and the matter remanded to the trial court for reinstatement of judgment in favor of defendants.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion. JUSTICES ALBIN and WALLACE did not participate.
SUPREME COURT OF NEW JERSEY
NO. A-34/35 SEPTEMBER TERM 2004
ON REMAND FROM Appellate Division, Superior Court
ANDREW N. YURICK,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY; THE
HONORABLE JAMES E. MCGREEVEY,
GOVERNOR, STATE OF NEW
JERSEY; and DAVID SAMSON,
ATTORNEY GENERAL, STATE OF
NEW JERSEY and GLOUCESTER
COUNTY BOARD OF CHOSEN
FREEHOLDERS, jointly and
severally, and in their
official and individual
capacities,
Defendants-Appellants.
DECIDED June 22, 2005
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
AND REINSTATE
Footnote: 1
We note that the Law Division transferred venue of this matter to
Cumberland County to avoid any potential conflict of interest due to plaintiff’s status
as the former Prosecutor of Gloucester County.
Footnote: 2
“Retaliatory action” is defined in CEPA as “the discharge, suspension or demotion of
an employee, or other adverse employment action taken against an employee in the
terms and conditions of employment.” N.J.S.A. 34:19-2(e).