ANDREW FREY VS. CITY OF HOBOKEN (L-5045-13, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2918-15T4
ANDREW FREY, ALEX BADAMO,
and RALPH EUSEBIO,
Plaintiffs-Appellants,
and
SAMUEL TORRES,
Plaintiff,
v.
CITY OF HOBOKEN,
LOCAL 1078 HOBOKEN FIREFIGHTERS, and
MATTHEW MARKEY, Local 1078 President,
Defendants-Respondents.
________________________________________
Submitted December 19, 2017 – Decided July 19, 2018
Before Judges Carroll, Leone, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
5045-13.
Law Offices of Louis A. Zayas, attorneys for
appellants (Louis A. Zayas, of counsel and on
the briefs; Alex Lee and Cory Bonk, on the
briefs).
Dvorak & Associates, LLC, attorneys for
respondent City of Hoboken (Lori A. Dvorak,
of counsel; Kurt J. Trinter, on the brief).
Cohen, Leder, Montalbano & Connaughton, LLC,
attorneys for respondents Local 1078 Hoboken
Firefighters, Matthew Markey, and Local 1078
President (Bruce D. Leder, on the brief).
PER CURIAM
Plaintiffs Andrew Frey, Alex Badamo, Ralph Eusebio, and
Samuel Torres filed a five-count complaint in the Law Division
against defendants City of Hoboken (City), Hoboken Firefighters
Association, Local 1078 (Local), and its president Matthew Markey.
Count one alleged all defendants violated the Civil Rights Act
(CRA), N.J.S.A. 10:6-1 to -2. The complaint alleged Markey and
the Local committed tortious interference with contractual
relations in count two, tortious interference with prospective
economic advantage in count three, and breach of contract in count
four. Count five alleged Markey breached his fiduciary duty.
Frey, Badamo, and Eusebio (plaintiffs)1 appeal from multiple
orders granting summary judgment in favor of defendants; denying
plaintiffs' motions for reconsideration; and denying their motion
to disqualify counsel representing Markey and the Local. We
affirm.
1
Samuel Torres has not appealed.
2 A-2918-15T4
I.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). "An issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on
the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the
issue to the trier of fact." Ibid.
The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). "[T]he court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom[.]" Id. at
535 (citation omitted).
An appellate court "review[s] the trial court's grant of
summary judgment de novo under the same standard as the trial
3 A-2918-15T4
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199 (2016). We must hew to that standard of review.
II.
Plaintiffs appeal Judge Francis B. Schultz's December 9, 2014
order granting the City summary judgment on count three, the only
count against the City. That count alleged the City violated the
CRA by conspiring with Markey and the Local to deprive plaintiffs
of their constitutional rights.
A.
Regarding the City's motion, the following facts are
undisputed unless otherwise indicated. Plaintiffs have been
employed as firefighters by the City since at least 2004. They
took the Civil Service test for promotion to captain. The
resulting list issued June 10, 2009, ranked Badamo 13th, Eusebio
15th, and Frey 16th among twenty-three eligible candidates.
In May 2011, the first twelve firefighters on the 2009 list
were promoted to captain. After those promotions, Badamo became
1st, Eusebio 3rd, and Frey 4th on the 2009 list.
An "Ordinance to Amend Section 59A-31" was proposed. It
stated that Hoboken wished to promote four firefighters to the
rank of captain in anticipation of retirements on or before April
1, 2013. It proposed amending the Table of Organization (Table)
to temporarily raise the maximum number of captains from thirty
4 A-2918-15T4
to thirty-four, with that level to decrease back to thirty as
current captains retired.
The proposed ordinance was placed on the agenda for the
November 28, 2012 City Council meeting. However, on November 27,
Hoboken withdrew the proposed ordinance from the agenda.
The following emails were proffered. At 11:56 p.m. on
November 27, Tooke emailed Chief Blohm saying "[b]efore we can
determine to proceed we will need some additional information."
Tooke asked the Chief for a projection of savings assuming the
four firefighters promoted to captain would waive the raise in pay
until the retirement of the four captains. About an hour later,
Blohm responded that a detailed savings projection was not possible
but that there would be savings from reduced overtime.
Tooke's email also requested an official union position on
the proposal. On December 3 Markey emailed Tooke "following up
with our conversation last week regarding [the Local's] position,"
and stating he would respond after a meeting on December 11 where
it would be discussed with the membership. Within an hour, Tooke
emailed Markey "to confirm that the issue of temporarily changing
the [Table] to increase the number of [c]aptains has been tabled,
and would not be on the council agenda, until such time as the
collective bargaining units have had a chance to discuss and
consider the issue and respond."
5 A-2918-15T4
On December 12, 2012, the 2009 list was replaced by a new
list based on a new examination.2 The 2012 list ranked Markey's
brother 4th, Markey 13th, Eusebio 23rd, and Frey 28th. Badamo was
not on the list.
According to emails, on December 14 Markey emailed Tooke and
said the Local had discussed the proposal and was in favor of
raising the Table but wanted the raise to be permanent. On
December 21, Markey said the same in a letter emailed to Tooke.
On March 19, 2013, Battalion Chief Luis Moreno announced that
the first eight candidates on the 2012 list would be promoted to
captain, including Markey's brother. After those promotions,
Eusebio became 15th, and Frey 20th.
B.
In opposition to the City's motion for summary judgment,
plaintiffs submitted certifications from Eusebio and Frey.
Regarding the City, Eusebio and Frey averred that Tooke knew or
"should have known" Markey was not the proper party with whom to
discuss promotions, which were normally handled by Fire Superiors
Local 1076. Eusebio averred Mayor Zimmer was communicating to
2
A promotional list generally expires "three years from the date
of its establishment," N.J.S.A. 11A:4-6, but "[w]hen a promotional
list for a law enforcement or firefighter title is extended until
a new promotional list is available for certification and
appointments, the extended list shall expire when the new
promotional list is issued," N.J.A.C. 4A:4-3.3(e).
6 A-2918-15T4
Markey. Frey also averred Tooke's communicating with Markey was
the beginning of a conspiracy to secure political support for
Mayor Zimmer in return for allowing the 2009 list to expire.
Plaintiffs did not aver any personal knowledge of such a scheme.
The judge properly did not view this vague "conjecture and
speculation" as creating genuine issues of fact. Under Rule 4:46-
5(a),
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of the pleading, but must respond
by affidavits meeting the requirements of R.
1:6-6 . . . setting forth specific facts
showing that there is a genuine issue for
trial.
Rule 1:6-6 requires that affidavits be "made on personal knowledge,
setting forth only facts which are admissible in evidence to which
the affiant is competent to testify." Thus, "[a] certification
will support the [denial] of summary judgment only if the material
facts alleged therein are based, as required by Rule 1:6-6, on
'personal knowledge.'" Wells Fargo Bank, N.A. v. Ford, 418 N.J.
Super. 592, 599 (App. Div. 2011). "[I]nadmissible hearsay" or
supposition "cannot be considered evidence in the summary judgment
7 A-2918-15T4
record." Chi. Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 457
(App. Div. 2009).3
The judge found the only allegation regarding the City based
on personal knowledge was Frey's certification that, at the
November 28 City Council meeting, Tooke told him "the ordinance
was removed at the request of President Markey for the Union to
review and approve." However, this allegation did not create a
genuine issue of fact as it was substantially consistent with the
emails and Tooke's certification. "[W]here the party opposing
summary judgment points only to disputed issues of fact that are
'of an insubstantial nature,' the proper disposition is summary
judgment." Brill, 142 N.J. at 529 (citation omitted).
In any case, the alleged dispute was not material because
neither it nor any evidence proffered by plaintiffs supported a
CRA violation. The CRA "is a means of vindicating substantive
rights and is not a source of rights itself." Gormley v. Wood-
El, 218 N.J. 72, 98 (2014). Similarly, "the 'gist of [a civil
conspiracy] is not the unlawful agreement, "but the underlying
wrong which, absent the conspiracy, would give a right of
3
Later, in their depositions, plaintiffs admitted they had no
personal knowledge whether Markey and Tooke reached any such
agreement, or whether Markey or the Local ever supported Mayor
Zimmer.
8 A-2918-15T4
action."'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177-78
(2005) (citations omitted).
Plaintiffs claimed the underlying wrong was punishment for
their political affiliation. The grant or denial of a promotion
to a non-political position "based on political affiliation or
support are an impermissible infringement on the First Amendment
rights of public employees." Rutan v. Republican Party, 497 U.S.
62, 75 (1990); see Lapolla v. Cty. of Union, 449 N.J. Super. 288,
300 (App. Div. 2017).
"A plaintiff who alleges retaliation for political
affiliation must show: (1) he was 'employed at a public agency in
a position that does not require political affiliation'; (2) he
was 'engaged in constitutionally protected conduct'; and (3) the
conduct was 'a substantial or motivating factor in the government's
employment decision.'" Lapolla, 449 N.J. Super. at 298 (citation
omitted). However, plaintiffs failed to proffer any evidence to
support the second or third prerequisites. Plaintiffs'
certifications did not state they were engaged in protected conduct
or had a political affiliation, that their conduct or affiliation
was known to the City, or that it was a motivating factor in the
City's decision to withdraw the proposed ordinance. See id. at
303. Without proof of an underlying wrong, the judge "correctly
9 A-2918-15T4
dismissed the conspiracy count." Rezem Family Assocs. v. Borough
of Millstone, 423 N.J. Super. 103, 122 (App. Div. 2011).
Plaintiffs also claim summary judgment was premature as
discovery was incomplete. However, "[a] motion for summary
judgment is not premature merely because discovery has not been
completed, unless plaintiff is able to '"demonstrate with some
degree of particularity the likelihood that further discovery will
supply the missing elements of the cause of action."'" Badiali
v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citations
omitted).
Plaintiffs argued they wanted to depose Tooke, but failed to
show that would "produce any additional facts necessary to a proper
disposition of the motion." DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 341 (App. Div.
2013). Plaintiffs now contend they should have been allowed to
depose Tooke and Markey before the City received summary judgment.
However, plaintiffs deposed them afterwards, and cannot point to
anything in their depositions which provided the missing evidence
of retaliation against plaintiffs based on political affiliation.
Plaintiffs have shown nothing that would "alter the outcome."
Young v. Hobart W. Grp., 385 N.J. Super. 448, 469 (App. Div. 2005).
Thus, the judge properly granted summary judgment to the City.
10 A-2918-15T4
III.
Plaintiffs next appeal Judge Schultz's December 4, 2015 order
denying reconsideration of the December 9, 2014 order granting
summary judgment to the City.4 Plaintiffs contend the depositions
of Tooke and Markey revealed numerous "incongruities." However,
as the judge ruled, the alleged inconsistencies are "trivial" and
not material to show retaliation for political affiliation.
On reconsideration, plaintiffs presented the certification
of Angel Alicia, who was the City's Director of Public Safety
under Mayor Zimmer until April 2011. Alicia's certification
stated: "In my time as Director, I did not have any direct or
indirect conversations with Union President Markey about any
efforts to promote fire fighters"; "the local unions would not
have been part of those conversations, but rather the Fire Chief";
"there was no requirement or legitimate purpose to request or
obtain union approval by Local 1078 in order to promote fire
fighters to captain" as "the decision to promote rests exclusively
with the City."
4
Plaintiffs' motion was not untimely because the December 9, 2014
order "adjudicate[d] fewer than all the claims as to all the
parties" and thus was "subject to revision at any time before the
entry of final judgment in the sound discretion of the court in
the interest of justice." Lombardi v. Masso, 207 N.J. 517, 534
(2011) (quoting R. 4:42-2); see Dickson v. Selective Ins. Grp.,
Inc., 363 N.J. Super. 344, 349 n.3 (App. Div. 2003).
11 A-2918-15T4
However, this was not just a simple promotion. Rather, it
was a proposed ordinance to amend the Table. Moreover, the
proposal was for only a temporary increase in the number of
captains permitted by the Table, and the City wanted the promoted
firefighters to waive the higher captain's salary, until the
existing captains retired. As the judge noted, "[t]he proposed
ordinance clearly impacted both unions, especially if the newly
promoted captains would have captain responsibility but only
firefighter salaries" and if the increase in the Table was only
temporary. Under these unusual circumstances, Tooke's attempt to
ascertain Local 1078's position before the proposed ordinance was
submitted to the Council was not evidence of a wrongful act, even
if Alicia handled different circumstances differently in his day.
Nonetheless, Alicia opined that "there is no purpose in
withdrawing an ordinance seeking to change the [Table] to promote
four fire fighters to allow the union to vote on it." However,
Alicia's opinions on the purposes of defendants were inadmissible.
Alicia did not claim personal knowledge of their purposes as
required by Rule 1:6-6, his opinion was not based on his sensory
perceptions as required for a lay opinion under N.J.R.E. 701, and
he was not proffered as an expert under N.J.R.E. 702. In any
event, his opinion "represented only his personal view," Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 401 (2014), and was thus
12 A-2918-15T4
"'insufficient to satisfy a plaintiff's burden on a motion for
summary judgment,'" Satec, Inc. v. Hanover Ins. Grp., Inc., 450
N.J. Super. 319, 330 (App. Div. 2017) (citation omitted).
"Inadmissible evidence may not be used to affect the outcome of a
summary judgment motion." Randall v. State, 277 N.J. Super. 192,
198 (App. Div. 1994).
Alicia also asserted that "[d]uring my time" as director, the
Table was "flexible, and promotions over the Table . . . were
allowed when necessary to meet the public safety needs in the City
of Hoboken." However, "[t]he enabling statutes for the creation
of police departments, N.J.S.A. 40A:14-118, and fire departments,
N.J.S.A. 40A:14-7," allow the governing body to adopt ordinances
"creating a table of organization." In re Referendum Petition to
Repeal Ordinance 04-75, 388 N.J. Super. 405, 417 (App. Div. 2006);
see N.J.S.A. 40A:14-7 ("The governing body of any municipality,
by ordinance, may create and establish a paid or part-paid fire
department and . . . appoint such members, officers and personnel
as shall be deemed necessary."). In limiting the number of
captains to thirty in the Table, Hoboken's governing body stated:
"The staff of the Division of Fire shall not exceed the following
sworn personnel, within the budgetary constraints established by
the Council[.]" Hoboken Code § 59A-31 (emphasis added).
13 A-2918-15T4
"The established rules of statutory construction govern the
interpretation of a municipal ordinance." Twp. of Pennsauken v.
Schad, 160 N.J. 156, 170 (1999). "In analyzing legislation, 'the
words "must" and "shall" are generally mandatory.'" State v.
Sorensen, 439 N.J. Super. 471, 488 n.6 (App. Div. 2015) (quoting
Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 391 (1959)).
Here, the governing body's use of "shall" "clearly indicates that
[it] meant [the Table] to be mandatory." See State v. Thomas, 188
N.J. 137, 149 (2006). Thus, § 59A-31's limit of thirty captains
was mandatory, not flexible, and "no appointment may be made to
any [fire] department position not created" by ordinance. See
Reuter v. Borough Council, 167 N.J. 38, 43 (2001).5 Accordingly,
Alicia's opinion that the Table was flexible was an erroneous
opinion on a question of law which must be disregarded on summary
judgment. See Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63,
73 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006).6
5
In Reuter, our Supreme Court held the enabling statute for police
"require[s] the type and number of police positions to be created
by ordinance." 167 N.J. at 41; see Loigman v. Twp. Comm., 409
N.J. Super. 13, 22-26 (App. Div. 2009). We need not decide whether
the governing body was required to similarly specify the type and
number of fire positions, as it chose to exercise its power to do
so.
6
Tooke testified that when promotions have occurred despite the
limits in the Table, "it's been a matter of days or a couple of
weeks, not several months." In any event, Tooke too cannot change
the mandatory language of § 59A-31.
14 A-2918-15T4
In any event, Alicia's certification provided no evidence
that Tooke's attempt to obtain union concurrence was intended to
retaliate against plaintiffs for their political affiliation.
Plaintiffs cite Alicia's observation that "[d]uring my time as
Director of Public Safety," "Mayor Zimmer was politically attacked
by the police union give[n] her proposal to layoff police
officers," but "[t]here was no similar political opposition from
the fire fighter union." However, Alicia's alleged observation
about the earlier threatened layoffs does not show Markey had any
political motivation to retaliate against plaintiffs regarding the
proposed Ordinance in November 2012.7
In any event, "a trial court's reconsideration decision will
be left undisturbed unless it represents a clear abuse of
discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,
440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994)). There was no
abuse of discretion here.
7
Moreover, in opposing the summary judgment motion by Markey and
the Local, plaintiffs had already admitted that Markey was elected
president of the Local in May 2011, after Alicia's tenure, and
that Markey "complained about the City's plan to layoff
firefighters and sent letters and emails to the Administration in
protest," including letters to Mayor Zimmer.
15 A-2918-15T4
IV.
Plaintiffs also appeal Judge Christine M. Vanek's November
2, 2015 order granting summary judgment to Markey and the Local
on every count except breach of contract, her February 5, 2016
order denying reconsideration of that order, and her February 5,
2016 order granting summary judgment to Markey and the Local on
the breach of contract count. We affirm substantially for the
reasons set forth in Judge Vanek's written opinion dated November
4, 2015, and her written opinions dated February 5, 2016. In
addition to our discussion above, we add the following.
Count one, plaintiffs' CRA claim against Markey and the Local,
failed given the absence of proof that the City conspired to
violate plaintiffs' civil rights. The CRA protects against the
deprivation of or interference with civil rights by a person or
entity "acting under color of law." N.J.S.A. 10:6-2; see Perez
v. Zagami, LLC, 218 N.J. 202, 217 (2014). Thus, "a private CRA
cause of action only may be pursued against persons acting under
color of law." Perez, 218 N.J. at 204. "[T]he CRA does not
provide a private action based on a deprivation of civil rights
irrespective of state action[.]" Id. at 216 & n.4. In any event,
plaintiffs also failed to proffer evidence that Markey or the
Local conspired to deprive them of civil rights based on their
political affiliation.
16 A-2918-15T4
In count two, plaintiffs could not show Markey or the Local
tortiously interfered with any contract plaintiffs might have with
the City, because plaintiffs had no contractual right to be
promoted. "No right accrues to a candidate whose name is placed
on an eligible list. 'The only benefit inuring to such a person
is that so long as that list remains in force, no appointment can
be made except from that list.'" In re Foglio, 207 N.J. 38, 44
(2011) (citations omitted).
Similarly, plaintiffs did not show tortious interference with
prospective economic advantage under count three. "A plaintiff
shows causation when there is 'proof that if there had been no
interference there was a reasonable probability that the victim
of the interference would have received the anticipated economic
benefits.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 759 (1989) (citation omitted). Plaintiffs' claim relies
on the suppositions, for which they submitted no proof, that the
proposed ordinance would have passed on first reading on November
28, that it would have passed on second reading, that it would
have been signed by the Mayor, and that the City would then have
hired new captains, all before the 2009 list expired on December
11. Moreover, the second reading must "be at least 10 days after
the first reading," N.J.S.A. 40:49-2(b), and the next scheduled
City Council meeting was December 19, 2012, after the 2009 list
17 A-2918-15T4
expired. Plaintiffs offered no proof that the City Council would
have wanted or been able to schedule an emergency session solely
to promote them rather than other firefighters who attained a
higher score on a more recent examination.
Under count four, plaintiffs also failed to show a breach of
contract by Markey or the Local. "The relationship between a
member and a union is a contractual one; the union's bylaws and
constitution are the contract, and the contract is enforceable in
state court." Sheet Metal Workers' Intern. Ass'n Local Union 22
v. Kavanagh, 443 N.J. Super. 39, 43 (App. Div. 2015). However,
plaintiffs cannot identify a provision of the Local's constitution
or bylaws that was violated.
To support count five charging Markey with a breach of
fiduciary duty, plaintiffs cite the Labor-Management Relations Act
and Labor-Management Reporting and Disclosure Act (LMRDA), but
those acts do not apply where the employer is "any State or
political subdivision thereof." 29 U.S.C. §§ 152(2), 402(e). In
any event, the LMRDA imposes a fiduciary duty on union officers
to handle union money and property "'solely for the benefit of the
organization and its members,'" not for failing to consult with
members as alleged by plaintiffs. Dzwonar v. McDevitt, 177 N.J.
451, 468 (2003) (quoting 29 U.S.C. § 501(a)).
18 A-2918-15T4
It is undisputed Markey and the Local owe "a duty of fair
representation" to its members. D'Arrigo v. N.J. State Bd. of
Mediation, 119 N.J. 74, 76 (1990). "The duty requires a union 'to
serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary conduct.'"
Maher v. N.J. Transit Rail Operations, 125 N.J. 455, 476 (1991)
(quoting Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry,
494 U.S. 558, 563 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177
(1967))). Nonetheless, the "concept of 'fair representation' is
a limited one," and the duty is breached "'only when a union's
conduct toward a member of the collective bargaining unit is
arbitrary, discriminatory, or in bad faith.'" Saginario v.
Attorney General, 87 N.J. 480, 488, 494 n.7 (1981) (quoting Vaca,
386 U.S. at 190); see Maher, 125 N.J. at 478.
"[U]nder the 'arbitrary' prong, a union's actions breach the
duty of fair representation 'only if [its conduct] can be fairly
characterized as so far outside a "wide range of reasonableness"
that it is wholly "irrational" or "arbitrary."'" Marquez v. Screen
Actors Guild, 525 U.S. 33, 45 (1998) (quoting Air Line Pilots
Ass'n v. O'Neill, 499 U.S. 65, 78 (1991)). It was not wholly
"irrational" for Markey to seek time for the Local to discuss, or
to oppose, a proposal that would not permanently increase the
19 A-2918-15T4
number of captains but would do so only temporarily and with a
waiver of the salary increase. See Air Line Pilots Ass'n, 499
U.S. at 67. Allowing such a temporary increase with a waiver of
the salary increase would set a precedent a union may wish to
oppose. "A union's decision to avoid [a] slippery slope is not a
fortiori a decision made in bad faith." See Marquez, 525 U.S. at
48.
Under the discrimination prong, "a plaintiff must 'adduce
substantial evidence of [bias] that is intentional, severe, and
unrelated to legitimate union objectives.'" Maher, 125 N.J. at
478 (alteration in original) (quoting Amalgamated Ass'n of St.,
Elec. Ry. & Motor Coach Emps. v. Lockridge, 403 U.S. 274, 301
(1971)). As set forth above, plaintiffs failed to show any
political bias against them, and have not alleged any other
discriminatory bias. See Vaca, 386 U.S. at 177. In any event,
to seek time to consider, or to oppose, the proposal was not
unrelated to legitimate union objectives.
Moreover, it was not a breach of the duty of fair
representation if the result of Markey's consulting with the union
about the proposed ordinance meant any promotions would go not to
the persons ranked highly on the 2009 list, such as plaintiffs,
but to other union members who scored higher on the more recent
test. A union does not breach the "duty of fair representation
20 A-2918-15T4
in taking a good faith position contrary to that of some
individuals whom it represents nor in supporting the position of
one group of employees against that of another." Humphrey v.
Moore, 375 U.S. 335, 349 (1964) (finding no breach where a union
president "supported one group and opposed the other" even though
he represented both). Unions frequently face decisions that
benefit some of their members and harm other members. "Thus, the
mere fact that a negotiated agreement results . . . in a detriment
to one group of employees does not establish a breach of duty by
the union." Belen v. Woodbridge Twp. Bd. of Educ., 142 N.J. Super.
486, 491 (App. Div. 1976).
Thus, "on the motion for summary judgment, [plaintiffs] ha[d]
the additional burden of furnishing proof of some probative value
showing that the union acted in bad faith." Donnelly v. United
Fruit Co., 40 N.J. 61, 96 (1963). "There must be 'substantial
evidence of fraud, deceitful action or dishonest conduct.'"
Amalgamated Ass'n, 403 U.S. at 299 (quoting Humphrey, 375 U.S. at
348).
Plaintiffs failed to meet this high standard. They cite
Tooke's deposition testimony that the proposed ordinance was based
on suggestions Markey made in early fall. If true, that shows
Markey was originally trying to arrange for captain positions for
plaintiffs to fill. That Markey tried to submit the proposal to
21 A-2918-15T4
the membership also does not show bad faith.8 They argue Markey
wanted the proposed ordinance withdrawn on November 28 because he
knew it would benefit him and his brother, but there was no
evidence that Markey knew the new list was coming out soon or that
he or his brother scored highly on that list.
Plaintiffs argue that after the proposed ordinance was
withdrawn, Markey failed to call a union meeting to discuss the
proposed ordinance, but Frey and Eusebio certified that "[o]n
December 11, 2012, Markey scheduled a union meeting. At this
meeting, Markey suggested to raise the [Table]." Plaintiffs argue
that Markey was promoted to captain in March 2013, but Markey was
not among the eight firefighters who were promoted.9
Plaintiffs also cite Frey's certification:
When I contacted President Markey to inquire
about why the ordinance was removed, President
Markey initially pretended that he had no idea
that there was an ordinance and stated that
he did not know what I was talking about.
Later, President Markey said that Director
Tooke wanted to discuss it with the union
members.
8
To the extent plaintiffs argue that Markey should have gotten
the City to propose the ordinance earlier, "negligence does not
constitute a breach of the statutory duty of fair representation."
Brooks v. N.J. Mfrs. Ins. Co., 170 N.J. Super. 20, 35 (App. Div.
1979).
9
By the time Tooke testified in 2015, Markey had been promoted.
22 A-2918-15T4
However, this too was not substantial evidence of fraud, deceitful
action, or dishonest conduct. Judge Vanek properly granted summary
judgment to Markey and the Local.
V.
Finally, plaintiffs appeal Judge Schultz's July 11, 2014
order denying their motion to disqualify counsel representing
Markey and the Local. The "determination of whether counsel should
be disqualified is, as an issue of law, subject to de novo plenary
appellate review." City of Atl. City v. Trupos, 201 N.J. 447, 463
(2010). "[A] motion for disqualification calls for us to balance
competing interests, weighing the need to maintain the highest
standards of the profession against a client's right freely to
choose his counsel." Twenty-First Century Rail Corp. v. N.J.
Transit Corp., 210 N.J. 264, 273-74 (2012) (quoting Dewey v. R.J.
Reynolds Tobacco Co., 109 N.J. 201, 218 (1988)). As
"[d]isqualification of counsel is a harsh discretionary remedy
which must be used sparingly[,]" a party seeking disqualification
must meet a "high standard." O Builders & Assocs., Inc. v. Yuna
Corp. of NJ, 206 N.J. 109, 130 (2011) (alterations in original)
(citation omitted).
23 A-2918-15T4
Plaintiffs first claimed counsel had a conflict of interest
because he represented both Markey and the Local.10 However, "[a]
lawyer representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of RPC 1.7." RPC 1.13(e).
"For purposes of this rule 'organization' includes any . . .
union[.]" RPC 1.13(f).
Nonetheless, plaintiffs claimed the representation of both
the Local and Markey violated RPC 1.7. That rule provides that
absent consent "a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest," which
exists if "the representation of one client will be directly
adverse to another client," or if "there is a significant risk
that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client [or] a
former client." RPC 1.7(a).
Plaintiff did not make either showing. Plaintiffs sued Markey
and the Local together, alleging in count three that they conspired
together, and alleging in counts one through four that they were
liable together. Count five alleged Markey "breached his fiduciary
10
"Our jurisprudence has entertained disqualification motions
filed by the attorney's adversary." Van Horn v. Van Horn, 415
N.J. Super. 398, 412 (App. Div. 2010).
24 A-2918-15T4
duty to [p]laintiffs," and his duty to fairly represent plaintiffs.
Plaintiffs did not allege or show that Markey violated any duty
to the Local.
Second, plaintiffs claimed counsel had a conflict of interest
because he represented the Local of which plaintiffs were members.
Plaintiffs assert they were represented by counsel because he
represented the Local. However, "a lawyer employed or retained
to represent an organization represents the organization as
distinct from its directors, officers, employees, members,
shareholders or other constituents." RPC 1.13(a). Thus, counsel
did not represent plaintiffs merely because he represented the
union. See McCarthy v. John T. Henderson, Inc., 246 N.J. Super.
225, 230 (App. Div. 1991).
Moreover, plaintiffs did not claim counsel had represented
them personally. Counsel stated he had never represented any of
the plaintiffs, and had never met three of them. Plaintiffs were
unable to identify any confidential information counsel had about
them, or whether counsel had any contact with plaintiffs. The
judge found no evidence counsel ever had any relationship with
counsel, and that there was no conflict of interest or impropriety.
Plaintiffs invoke RPC 1.9, which addresses "[d]uties to
[f]ormer [c]lients." However, an alleged "former client should
have the initial burden of proving that by application of RPC 1.9
25 A-2918-15T4
it previously had been represented by the attorney whose
disqualification is sought." Dewey, 109 N.J. at 222.
Plaintiffs relied on State v. Galati, 64 N.J. 572 (1974),
concerning the Policemen's Benevolent Association (PBA). Id. at
573. Galati "preclude[d] a PBA attorney in the future from all
representations [of an officer being criminally prosecuted] in
which an officer from the same PBA chapter will be called to
testify." Id. at 578. Galati ruled the PBA had a special role:
Representatives of law enforcement such as
police are components of th[e] administration
of justice. The PBA has, in the public mind,
a quasi-official status, as the conspicuous
spokesman for the interests of all policemen.
Any failure of confidence in the PBA
diminishes confidence in the police force as
a whole, and thus in the administration of
justice.
[Id. at 577.]
Galati stressed that disqualification of a PBA lawyer was necessary
to avoid the appearance of impropriety. Id. at 576-78.
However, our Supreme Court has refused to "extend Galati to
representatives of firefighters' unions." Flamma v. Atl. City
Fire Dep't, 118 N.J. 583, 587 (1990). The Court emphasized that
a firefighters' local "is not an organization of law-enforcement
officials, nor does it have the 'quasi-official status' and close
relationship to the administration of justice that the PBA has."
Ibid. "[A]bsent a special relationship between the union and the
26 A-2918-15T4
administration of justice, there is no significant risk of
detriment to public confidence in the justice system requiring the
attorney's disqualification for an 'appearance of impropriety.'"
Id. at 588.
Moreover, "[a] sea change occurred in 2004, when the RPCs
were amended to eliminate the 'appearance of impropriety'
provisions from all RPCs, including RPC 1.7(c) and RPC 1.9(c)."
State v. Hudson, 443 N.J. Super. 276, 288 (App. Div. 2015). The
Supreme Court since held that "the 'appearance of impropriety'
standard no longer retains any continued validity in respect of
attorney discipline." In re Supreme Court Advisory Comm. on Prof'l
Ethics Op. No. 697, 188 N.J. 549, 568 (2006). "The Court
emphasized the doctrine is not a factor to be considered in
determining whether a prohibited conflict of interest exists under
RPC 1.7 . . . or 1.9 as its use 'injects an unneeded element of
confusion[.]'" Hudson, 443 N.J. Super. at 288-89 (quoting Ethics
Op. No. 697, 188 N.J. at 562 n.5). Accordingly, we held in Hudson
that "[t]o the extent the conclusion in Galati was based on an
appearance of impropriety analysis, it conflicts with the Court's
direction, declaring the amorphous and impractical appearance of
impropriety doctrine may not serve as a basis to disqualify counsel
because of a perceived conflict of interest." Id. at 289.
27 A-2918-15T4
Plaintiffs failed to show any prior representation, let alone
a conflict of interest. Accordingly, the judge properly denied
plaintiffs' motion to disqualify counsel.
Affirmed.
28 A-2918-15T4