SALKIN v. LABROSSE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

RICHARD SALKIN,

Plaintiff,

Civ. No. 2:18-13910 (WJM) (MF)

v.

JOHN LABROSSE, FRANCES OPINION

COGELJA, LANCE POWELL,

CARLOS VELEZ, WENDY

MARTINEZ, in their individual and

official capacities, HACKENSACK

PUBLIC SCHOOL DISTRICT, CITY

OF HACKENSACK, PHILIP

SWIBINSKI, and VISION MEDIA

MARKETING, INC.,

Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Richard Salkin, the former attorney for the Board of Education of

Hackensack, New Jersey, brings this Section 1983 action against Hackensack Mayor

John Labrosse (“Labrosse”); Hackensack School Board Members Frances Cogelja

(“Cogelja”), Lance Powell (“Powell”), and Carlos Velez (“Velez”); campaign manager

Wendy Martinez (“Martinez”); Vision Media Marketing (“Vision”) and its principal

Philip Swibiniski (“Swibiniski”); the Hackensack Public School District (“HPSD”); and

the City of Hackensack (“the City”). Plaintiff alleges that during the 2018 campaign for

three open positions on the HPSD school board, Defendants defamed Plaintiff and made

statements about his performance and political affiliations that resulted in his constructive

discharge from his position in violation of the First Amendment.

This matter comes before the Court upon two motions to dismiss pursuant to

Federal Rule of Civil Procedure12(b)(6) filed by the City, HPSD, Cogelia, Powell, and

Velez (“Moving Defendants”), ECF Nos. [34] and [35] (“Motions”). There was no oral

argument pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, the Motions

are GRANTED.

1. BACKGROUND

A. Factual Background

The following facts are derived from the Amended Complaint, ECF No. [28], and

are accepted as true for purposes of the Motions.

Plaintiff served as attorney for the Board of Education of HPSD (“BOE Attorney”)

from 2005 to 2018. ECF No. [28] ¶ 15. During his tenure, the Board of Education re-

appointed Plaintiff annually through a non-political process. Id. ¶¶ 16–17. According to

Plaintiff, the position of BOE Attorney is non-partisan, and Plaintiff did not “serve any

significant role in policy making.” Id. ¶¶ 17–18. Instead, his role focused on “handling

labor matters; representing HPSD with regard to grievances; advising staff members;

handling personnel issues; representing HPSD in contractual issues and tuition issues; the

bidding processes for vendors, and; the enforcement of HPSD policies.” Id. ¶¶ 19–20.

For this work, Plaintiff was compensated $150 per hour from 2005 to 2017 and $160 per

hour from 2017 to 2018. He billed HPSD between $130,000 to $153,000 each year. Id.

¶¶ 22–23. During his last year of service, Plaintiff alleges he was paid approximately

$13,000 each month. Id. ¶ 59.

While Plaintiff held the BOE attorney position, he expressed political support for

certain mayors, including former Hackensack Mayor Jack Zisa and local Hackensack

council members that supported Zisa. Id. ¶¶ 29–30. In 2013, Defendant Labrosse was

elected mayor of Hackensack, defeating those for whom Plaintiff had previously

expressed support. Id. ¶¶ 31–32. While Plaintiff alleges that he did not support

Defendant Labrosse or the other council members that were elected with him, Plaintiff

continued to serve in his role as BOE Attorney. Id. ¶ 32.

Five years later in 2018, HPSD held an election for three positions on its school

board that precipitated the claims in this lawsuit. Plaintiff alleges that while the school

board positions are “non-partisan” and “non-political,” id. ¶ 34, Defendants Cogelja,

Powell, and Velez (together, the “Individual Defendants”) were “affiliated with a

‘Labrosse Team’ ” supported by the current Hackensack mayor. Id. ¶ 38. During their

campaigns, Plaintiff’s legal fees, his responsibilities as BOE Attorney, and his

relationship with former mayors became the subject of campaign flyers and social media

posts. Specifically Defendant Martinez, the Individual Defendants’ campaign manager,

requested information from the City regarding Plaintiff’s billable hours and purchase

orders for his legal services. Id. ¶ 39. Plaintiff alleges that the Individual Defendants,

either acting individually or through Defendants Vision and Swibinski, issued several

public statements in the two weeks leading up to the April 17, 2018 elections that were

“false, malicious, and defamatory.” Id. ¶ 40. These statements are detailed below.

On April 5, 2018, the Individual Defendants issued a press release “demanding

that Plaintiff reimburse [the Hackensack Public Schools] for a portion of his fees” and

stating that “Plaintiff raised his compensation by 50%, overbilled taxpayers by thousands

of dollars, [] broke the state law . . . by working without a contract,” “increased [his

compensation] from $95,000 to $144,000,” and “believes he is above the law because he

actually controls the Board of Education through his relationship with the Zisa family.”

Id. ¶¶ 43–44 (the “Press Release”). In the Press Release, Defendant Cogelja stated that

Plaintiff had “overbilled taxpayers by $13,000” and “was charging a higher rate than

allowed.” Id. ¶ 45. Although Plaintiff received a letter the following day from HPSD

clarifying that the school district had not overpaid him, id. ¶ 48, the information found in

the Press Release was reprinted on April 7, 2018 by InsiderNJ.com. Id. ¶ 49.

The next day, on April 8, 2018, the Individual Defendants published the following

statement on Facebook:

Did you know that School Attorney Richard Salkin (a

longtime Zisa family lawyer) and School Board President

(and Zisa candidate) Jason Nunnermacker have a blatant

conflict of interest involving hundreds of thousands of

dollars?

Did you know that School Attorney Salkin has ruled that

there is ‘nothing wrong’ with school employees doing

political work for Zisa candidates – on school time and on

school property?

Did you know that Salkin overbills the school district by tens

of thousands of tax dollars . . . ?

Id. ¶ 50 (the “Facebook Post”). The complaint alleges that the substantive content of the

Facebook Post was “contemporaneously” reprinted in a campaign advertisement by

“Labrosse and the Labrosse Team.” Id. ¶ 52. Finally, on election day the Individual

Defendants, Vision, or Swibinski distributed a campaign flyer which stated:

Kick the Zisas Out of Our Schools!

The Board of Education has long been controlled by Jack and

Ken Zisa through School Attorney Richard Salkin and Board

President Jason Nunnermacker – two longtime Zisa family

cronies. Last year they allowed school employees to do

political work for Zisa city council candidates - on taxpayer

time and on school property. Nunnermacker’s law firm

collected hundreds of thousands of dollars representing

Salkin’s wife. At the same time, Salkin raised his fees by over

50% in just two years and overbilled the schools by thousands

of dollars . . . .

Id. ¶¶ 41, 54 (“Campaign Flyer”). In addition to the Press Release, Facebook Post, and

Campaign Flyer, the Individual Defendants stated “throughout the campaign” that

Plaintiff “would not be permitted to remain as BOE Attorney should [the Individual

Defendants] take control of [the] school board” and that the Individual Defendants

planned to “get rid of all people affiliated with Zisa,” including Plaintiff. Id. ¶ 55. An

unnamed school board member further told Plaintiff that if the Individual Defendants

prevailed, Plaintiff would be terminated. Id. ¶ 57.

The Individual Defendants won the election. Id. ¶ 54. Plaintiff resigned effective

April 23, 2018, six days after the election. Id. ¶ 58. Plaintiff alleges that this resignation

was “forced” and constituted a constructive discharge because he (1) was defamed by the

Individual Defendants; (2) was told by an unnamed board member that he would be

terminated if the Individual Defendants prevailed; and (3) could no longer serve because

the situation was “intolerable and untenable.” Id. ¶¶ 58, 60–61. Several months later

Defendant Cogelja stated at a school board meeting that this lawsuit was “legal

harassment” and made several unspecified statements that Plaintiff alleges to be false. Id.

¶ 61. Based on these allegations, Plaintiff asserts causes of action for defamation,

violations of Section 1983, and violations of the New Jersey Civil Rights Act.

B. Procedural History and the Instant Motions

Plaintiff initially filed his complaint on September 14, 2018 and filed an Amended

Complaint on January 22, 2018. ECF Nos. [1] & [28]. Defendants Labrosse, Swibinski,

and Vision filed answers, ECF Nos. [30] & [33],1 and the City, HPSD, and the Individual

Defendants filed motions to dismiss. ECF Nos. [34] & [35].2 As relevant to the instant

motions, the claims against the Moving Defendants are as follows:3

● Count I: First Amendment Retaliation under 42 U.S.C.§ 1983 against the

City and HPSD;

● Count II: First Amendment Retaliation under 42 U.S.C.§ 1983 against the

Individual Defendants;

● Count III: Violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6–2

against the City, HPSD, and the Individual Defendants.

In a joint motion to dismiss, HPSD and the Individual Defendants separately argue

for dismissal of the counts against them. The Individual Defendants first argue that the

claims against them should be dismissed because none of the Individual Defendants acted

under color of state law as required under Section 1983 and the NJCRA. ECF No. [35-1]

at 8–16. Second, the Individual Defendants argue that Plaintiff’s claims are barred by

qualified immunity because as of the filing of the complaint, there was no controlling

authority or robust consensus that termination based on political affiliation is unlawful for

a position that encompasses policy making or confidential role. Id. at 17. Third, Cogelja

argues that claims related to her September 2018 statements to the school board are

entitled to absolute legislative immunity, and, in any event, did not involve any threat of

termination and occurred long after Plaintiff was no longer the BOE Attorney. Id. at 35–

1 On June 12, 2019, Defendant Labrosse filed a motion for judgment on the pleadings as to

Counts II and III. ECF No. [42]. As of entry of this Opinion, that motion is not yet ripe.

2 Defendant Martinez answered the initial complaint on December 12, 2018. ECF No. [23]. The

docket does not reflect an answer to the Amended Complaint filed by Defendant Martinez.

3 The Individual Defendants do not move to dismiss Count IV (Defamation).

36. As to the claims against Defendant HPSD, HPSD argues that Plaintiff has failed to

allege a constitutional violation and articulate a custom or policy that resulted in any

alleged constitutional violation as required under Monell v. Dep’t of Social Servs., 436

U.S. 658 (1978). Id.

In a separate brief, the City argues that Plaintiff fails to state a claim for First

Amendment retaliation because patronage dismissals are permitted in policy-making

roles such as the BOE Attorney. ECF No. [34-1]. The City also argues that Plaintiff fails

to allege sufficient facts to demonstrate “outrageous, coercive, and unconscionable

conduct” to constitute constructive discharge, fails to articulate a policy or practice

attributable to the City, and fails to allege a claim for declaratory relief. Id. at 17–19.

Plaintiff opposes by arguing that he has sufficiently pled his retaliation claim

because (1) political affiliation is not a proper basis for termination as BOE Attorney, (2)

the complaint contains sufficient facts to support his claim for constructive discharge, and

(3) the Individual Defendants operated under state law because they eventually were

elected to local office. ECF No. [39]. Plaintiff further argues that the Individual

Defendants are not entitled to qualified immunity, that Plaintiff has sufficiently pled that

HPSD engaged in a policy or custom of retaliatory termination based on political

affiliation, and that the City has waived any arguments under Monell. Id. The Moving

Defendants filed replies. ECF Nos. [40] & [41]. The Motions are now ripe for decision.

2. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint

if a plaintiff fails to state a claim upon which relief can be granted. The movant bears the

burden of showing the complaint must be dismissed. Hedges v. United States, 404 F.3d

744, 750 (3d Cir. 2005). “[A]ll allegations in the complaint must be accepted as true, and

the plaintiff must be given the benefit of every favorable inference to be drawn

therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The court does not

accept “legal conclusions” as true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

To survive a 12(b)(6) motion, “a complaint must contain sufficient factual

matter . . . to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id.

3. DISCUSSION

A. Claims Against the Individual Defendants

To allege a prima facie case under Section 1983, a plaintiff must demonstrate that

a person, acting under color of state law, deprived him or her of a federal right. Marran

v. Marran, 376 F.3d 143, 155–56 (3d Cir. 2004) (citing Berg v. County of Allegheny, 219

F.3d 261, 268 (3d Cir. 2000)). Courts have typically analyzed the requirements of

Section 1983 in two parts, which may be addressed in either order: whether plaintiff has

alleged a violation of a right secured by the Constitution and the laws of the United States

and whether the alleged deprivation was committed by a person acting under color of

state law. Sprauve v. W. Indian Co. Ltd., 799 F.3d 226, 229 (3d Cir. 2016) (quoting

Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (cleaned up).

The requirement under the second prong that the person act “under color of state

law” confines Section 1983 liability to “those who deprive persons of federal

constitutional or statutory rights ‘under color of any statute, ordinance, regulation,

custom, or usage’ of a state.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (quoting

Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)). “[M]ere[] private conduct, no matter

how discriminatory or wrongful” does not fall within the scope of Section 1983.

Sullivan, 526 U.S. at 49 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991 (1982)).

A defendant acts under “color of state law” if:

(1) [] the private entity has exercised powers that are

traditionally the exclusive prerogative of the state; (2) [] the

private party has acted with the help of or in concert with

state officials; and (3) [] the state has so far insinuated itself

into a position of interdependence with the acting party that it

must be recognized as a joint participant in the challenged

activity.

Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (quoting Kach, 589 F.3d

at 646). The court must determine if there is “such a close nexus between the State and

the challenged action that seemingly private behavior may be fairly treated as that of the

State itself.” Id. (quoting Leshko, 423 F.3d at 339). While requiring a factual inquiry, this

analysis is properly undertaken on a motion to dismiss. Sprauve, 799 F.3d at 229.

Plaintiff alleges the Individual Defendants violated his First Amendment rights

when they constructively discharged him from his position as BOE Attorney. According

to Plaintiff, the Individual Defendants made statements on the campaign trail about his

support of a former mayor of Hackensack, his billing practices as BOE Attorney, and

their intent to remove Plaintiff from his position if elected. However, each of the

statements that allegedly contributed to his constructive discharge were made while

Individual Defendants were private citizens running for elected office. Plaintiff alleges

no actions or statements by the Individual Defendants after they were elected or took

office. Because the Individual Defendants acting alone cannot act under color of state

law while on the campaign trail, the Court finds that Plaintiff has not stated a claim under

Section 1983 against the Individual Defendants. Melo v. Hafer, 912 F.2d 628, 638 (3d

Cir. 1990), aff’d, 502 U.S. 21 (1991) (holding candidate for office not a state actor);

Acosta v. Democratic City Comm., 288 F. Supp. 3d 597, 636 (E.D. Pa. 2018) (same).

Accordingly, the claims against the Individual Defendants must be dismissed.4

Plaintiff argues that the Individual Defendants’ statements are converted from

non-actionable statements by private citizens to actions taken “under color of state law”

once the Individual Defendants were elected. But the cases cited by Plaintiff to relate to

statements or actions by local or state government officials while they were in office, not

candidates for that office. Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) (finding

plaintiffs had stated a claim for First Amendment retaliation against the chairperson of

the Board of Supervisors who acted under color of state law when issuing a “no contact”

statement); West v. Atkins, 487 U.S. 42 (1988) (finding physician under contract with

state prison to provide medical services to inmates acted under color of state law). In

fact, the Third Circuit has explicitly stated that a candidate for office is not a state actor

while campaigning. Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990), aff’d, 502 U.S. 21

(1991) (finding no action under color of state law on a Section 1983 retaliation claim

related to an alleged conspiracy between a private citizen and a candidate for office who

eventually took that office). The Court thus finds this argument unpersuasive.

Finally, the Court notes that the Amended Complaint states that the Individual

Defendants were part of a “Labrosse Team” and that “Labrosse and the Labrosse Team”

reprinted a portion of the Facebook Post as part of a campaign flyer. ECF No. [28]

¶¶ 52–53. However, Plaintiff does not argue in opposition that the Individual Defendants

acted under color of state law because the complained-of statements were made “in

conjunction with an official which was then a state actor.” Melo, 912 F.2d at 638–39

(citations omitted). Rather, Plaintiff only argues that the Individual Defendants’ eventual

election converts the complained-of statements into state action. ECF No. [39] at 20.

“When neither of the parties who allegedly conspired is a state official, there is no state

actor to supply even a colorable basis for investing the private actor with a state mantle,

even if one of the parties later becomes a state official.” Melo, 912 F.2d at 639.

Accordingly, based on the arguments presented to the Court, the claims against the

Individual Defendants must be dismissed.

B. Claims Against HPSD and the City of Hackensack

“Local governing bodies may be sued directly under [Section] 1983 for monetary,

declaratory, or injunctive relief where the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.” Marran v. Marran, 376 F.3d 143,

155–56 (3d Cir. 2004) (quoting Monell v. Dept. of Soc. Serv., 436 U.S. 658, 690 (1978)

(modifications omitted)). In addition, “although the touchstone of the [Section] 1983

action against a government body is an allegation that official policy is responsible for a

4 Plaintiff argues that the analysis under NJCRA is identical to the analysis under Section 1983

and does not separately brief any arguments in his opposition related to his NJCRA claim. ECF

No. [39] at 1 n.1. Accordingly, for the same reasons stated here, Plaintiff’s NJCRA claims are

also dismissed. Endl v. New Jersey, 5 F. Supp. 3d 689, 697 (D.N.J. 2014) (holding that “NJCRA

is construed nearly identically to Section 1983”).

deprivation of rights protected by the Constitution, local governments . . . may be sued

for constitutional deprivations visited pursuant to governmental ‘custom’ even though

such a custom has not received formal approval through the body’s official

decisionmaking channels.” Monell, 436 U.S. at 690–91.

Thus, a Section 1983 claim against a local governing body may be made in two

ways. McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009) (quoting Andrews

v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990). As to the “policy” approach, a

plaintiff must demonstrate that a “decisionmaker possessing final authority to establish a

municipal policy with respect to the action’ issues an official proclamation, policy, or

edict.” Id. Under the “custom” approach, a plaintiff must demonstrate that a course of

conduct, which though not authorized by law, constituted a permanent and well-

established practice of the state officials rendering that custom law-like. Id. To

demonstrate custom, a plaintiff must also show proof of knowledge and acquiescence by

the decisionmaker. Watson v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007).

Here, Plaintiff alleges that “Defendants established, created, and implemented the

policies of the City of Hackensack and Hackensack Public School District,” and that

“HPSD and [the] City [] developed and maintained a number of deficient policies and/or

customs which caused the deprivation of Plaintiff’s constitutional rights.” ECF No. [28]

¶¶ 67, 71. The Amended Complaint further alleges that “Defendant HPSD’s and City of

Hackensack’s policies and customs encouraged the Individual Defendants, and others, to

believe that they could violate the constitutional rights of Plaintiff with impunity and with

the explicit or tacit approval of HPSD and/or the City of Hackensack.” Id. ¶ 72.

These allegations are inadequate to state a claim for Section 1983 liability against

HPSD and the City. Beyond the Amended Complaint’s conclusory statements noted

above, Plaintiff does not allege any specific “policy statement, ordinance, regulation, or

decision officially adopted and promulgated by [HPSD or the City’s] officers.” Marran,

376 F.3d at 155. Nor does Plaintiff allege any custom which constitutes a permanent and

well-established practice of HSPD or the City that caused his allegedly unconstitutional

constructive discharge.5 Instead, Plaintiff argues that as candidates for positions on the

Board of Education the Individual Defendants were municipal decisionmakers who

“created a custom and practice of political patronage through their promises to purge the

school district of Zisa supporters, should [the Individual] Defendants take office.” ECF

No. [39] at 26. But when these alleged statements were made, the Individual Defendants

were not decisionmakers of HPSD or the City, and any statements made by the Individual

Defendants while campaigning are not officially adopted policies or customs of the

HPSD or the City. The Court thus finds that Plaintiff has failed to state a claim against

5 Plaintiff argues in opposition that the City failed to cite Monell in its Moving Brief and has

therefore waived this argument. Although inartfully presented without citation to Monell, the

City argues “Plaintiff . . . contends ‘Defendants established and implemented the policies of the

City of Hackensack and HPSD,’ yet does not say which policies it refers.” ECF No. [34-1] at 18.

The Court does not consider this argument waived as Plaintiff urges.

HPSD and the City under Section 1983 and that these claims must be dismissed.6

4. DISMISSAL WITH PREJUDICE

The Moving Defendants request dismissal with prejudice. ECF Nos. [34-1] &

[35-1]. Generally, a plaintiff shall be granted leave to amend unless further amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d

Cir. 2002). The Court is not convinced that, based on the allegations in the Amended

Complaint, there is no set of facts that could state a claim against the Moving Defendants.

Ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d 242, 252 (3d Cir.

2016). Accordingly, the Court denies the request to dismiss with prejudice and will

permit Plaintiff to amend his complaint should he so choose.

5. CONCLUSION

For the reasons stated above, the Moving Defendants’ Motions to Dismiss are

GRANTED. An appropriate Order follows.

Dated: June 13, 2019

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

6 As with the NJCRA claims against the Individual Defendants, for the same reasons Plaintiff’s

NJCRA claims against HPSD and the City are also dismissed. Endl, 5 F. Supp. 3d at 697.