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As reported by nj.com, when William Stephens ran for Mayor of Edison in 2005, township firefighters supported his opponent Jun Choi, who won. Firefighters claims Stephens never forgot. Four years later, then-Councilwoman Antonia Ricigliano defeated Choi, took office and appointed Stephens as her management specialist. 

In a federal court suit filed last week, firefighters say they have been targets of political payback from Stephens through policies he imposed to cut shifts and reduce firefighters’ assignments. The firefighters’ union, and three firefighters, filed suit naming Ricigliano, Stephens, assistant public safety director Richard Laid, and recently fired business administrator Dennis Gonzalez.

“Defendants have consistently imposed penal policies on the fire department in retribution for (firefighters) political opposition to Stephens,” as well as firefighters’ criticism of the administration’s policies, the suit states. Stephens denies the retribution claim and said charges were made to cut costs.

When Ricigliano ran for mayor in 2009, firefighters stumped for her as she promised to bolster public safety. Since the mayor took office in January 2010, her alliance with the union has dissolved.

Named as the plaintiffs in the federal lawsuit are firefighters Anthony Pepe, James Walsh, and Christopher Seich along with the union, International Association of Firefighters Local 1197, and union president Robert Yackel. According to the suit, in 2005, the firefighters individually campaigned against Stephens, who indicated he would retaliate. 

The suit also states that firefighters have public criticized Ricigliano’s policies. In retaliation, the suit contends, staffing at each firehouse was cut from 22 firefighters per 24-hour shift to 20. In addition, Ricigliano hired full-time emergency medical technicians, ending the practice of rotating firefighters to staff first aid squads. Walsh and Pepe received an additional $279.39 in every biweekly pay check for work as EMTs the suit states.

Ricigliano and Stephens defend the charges as saving tax dollars, and say that fire department overtime cost Edison $2 million in 2010, but has been cut to $25,000 for the first four months of this year. “We are very proud that we are able to provide a service to the people of Edison and at a cost-savings,” Stephens said. He said the township has volunteer firefighters to supplement the department, and the staff cut was not a safety risk, a contention union members dispute.

In the suit, the plaintiffs claim the retribution violates their rights to free speech and free assembly as union members.

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On February 3, 2009, the United States Court of Appeals for the Third Circuit decided the case of LaPosta v. Borough of Roseland. In the case, plaintiff, Joseph LaPosta, a police officer, alleges Defendants, the Borough of Roseland and its Police Chief, retaliated against him after he attempted to join a police organization of which the Police Chief did not approve. Plaintiff’s claims were brought pursuant to 42 U.S.C. §1983 and state tort law. 

Plaintiff was employed as a police officer with the Borough of Roseland. After completing his police academy training, Plaintiff was forced to join the Fraternal Order of Police (“FOP”) union. When Plaintiff expressed an interest in joining an alternative union, the Policemen’s Benevolent Association (“PBA”), the Police Chief advised Plaintiff that neither he nor any other officers were to have any influence from the PBA. Nevertheless, Plaintiff joined the PBA. Thereafter, the Police Chief allegedly retaliated against Plaintiff, specifically by subjecting Plaintiff to smoke from cigarettes, cigars, and scented candles, charging him with insubordination, denying him an earned stipend, belittling him in front of other officers, filing frivolous internal affairs claims against him, and denying him the opportunity to attend career-advancing classes and seminars.

Plaintiff’s complaint asserted six claims: (1) violation of 42 U.S.C. §1983; (2) intentional infliction of emotional distress against the Police Chief; (3) hostile work environment; (4) negligence; (5) intentional interference with prospective economic advantage against the Police Chief; and (6) conspiracy. Both the Borough and Police Chief filed motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Thereafter, the United States District Court for the District of New Jersey entered an opinion and order granting the motions. This appeal followed.

The United States Court of Appeals for the Third Circuit affirmed the District Court’s ruling in part, reversed in part, and remanded the case for further consideration. Specifically, the Third Circuit affirmed the dismissal of all but one of Plaintiff’s claims for failing to file a notice of claim under the New Jersey Tort Claims Act. However, the Third Circuit determined the District Court erred in dismissing Plaintiff’s §1983 claim. The Third Circuit held the retaliation claim was not barred by the statute of limitations and should be remanded to the District Court to be adequately analyzed as a claim based on freedom of association.

This case illustrates the importance of obtaining an experienced, qualified attorney prior to initiating an action similar to the one recounted above. There are many procedural hurdles one must follow, to include filing certain notices, to perfect the filing of such a claim. Consequently, it is imperative one obtains a qualified, experienced attorney to ensure their rights are protected. Moreover, this case shows that viable retaliation claims can be pursued against public employers. With the right set of facts, many courts are willing to explore such a claim and, potentially, hold the employer liable for infringing on one's right to join a certain collective bargaining unit.

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In the case Reilly v. City of Atlantic City, 06-2591, the United States Court of Appeals for the Third Circuit held that a police officer’s testimony in a police corruption case is protected speech and his superiors are not entitled to qualified immunity regarding his retaliation claim. 

Appellee, Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation into police corruption a decade earlier. The alleged retaliation involved defendants formally recommending Reilly be demoted and suspended for 90 days, despite, after an extensive investigation, an independent hearing officer’s recommendation that Reilly serve a four day suspension for violating police department regulations.

Reilly accepted Flipping’s offer that he retire instead of being disciplined. Thereafter, Reilly filed this action alleging defendants’ actions violated his First Amendment free speech rights and Fourteenth Amendment right to procedural due process. The District Court denied defendants’ motion for summary judgment on the procedural due process claim, thereby declining to grant them qualified immunity. The Court also denied their motion for summary judgment on the First Amendment retaliation claim. This appeal followed.

The Third Circuit indicated that determining whether a public official is entitled to qualified immunity involves a two-step analysis. First, the court must decide whether a constitutional right would have been violated on the facts alleged and, if so, whether the right was clearly established. If the answer to the latter is “yes,” the defendant is not entitled to qualified immunity.

In analyzing whether Reilly had the claimed First Amendment right, the Third Circuit cited Garcetti v. Ceballos, 547 U.S. 410 (2006), which distinguished between employee speech and citizen speech and held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Defendants argued under Garcetti they are entitled to qualified immunity on Reilly’s First Amendment claim because his testimony was made pursuant to his official duties and, thus, not protected by the First Amendment. 

In rejecting this argument, the Third Circuit noted: (1) every citizen owes the duty of giving testimony to aid in the enforcement of the law; (2) the overwhelming weight of authority concludes that an employee’s truthful testimony is protected by the First Amendment; and (3) there is a need to protect the integrity of the judicial process. Therefore, the Court concluded that the fact that Reilly’s official duties provided the impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully. Reilly’s testimony constituted citizen speech and his claim is not foreclosed by the “official duties” doctrine announced in Garcetti and, as a result, defendants are not entitled to qualified immunity. 

This case has significance for any public safety officer who is called to testimony in a matter related to his official duties. Public safety officers, as with other citizens, have an obligation to testify truthfully in a court proceeding not only to preserve the integrity of the judicial process, but to ensure just enforcement the law. More importantly, however, this case illustrates that an officer’s superiors who retaliate against him/her will not be entitled to qualified immunity in a subsequent civil suit.      

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