Kevin Kelly v. County of Sussex

NOT FOR PUBLICATION WITHOUT THE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-2847-22

KEVIN KELLY,

Plaintiff-Appellant,

v.

COUNTY OF SUSSEX, and

COMMISIONERS CARNEY,

FANTASIA and YARDLEY,

Defendants-Respondents.

__________________________

Argued September 16, 2024 – Decided March 14, 2025

Before Judges Gummer and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Sussex County, Docket No. L-0256-22.

George T. Daggett argued the cause for appellant.

Michael L. Collins argued the cause for respondents

(King, Moench & Collins, LLP, attorneys; Michael L.

Collins, of counsel and on the brief; Krishna R. Jhaveri,

on the brief).

PER CURIAM

After he was not appointed to a second term as County Counsel, plaintiff

Kevin Kelly filed a lawsuit against the County of Sussex and three members of

the Sussex County Board of County Commissioners (the Board), alleging they

had violated the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -14. The trial court granted defendants' motion to dismiss the

complaint for failure to state a claim pursuant to Rule 4:6-2(e), finding plaintiff

in his pleading had failed to establish a prima facie claim for CEPA. Plaintiff

appeals from that order and a subsequent order denying his reconsideration

motion. We affirm.

I.

"In evaluating motions to dismiss, courts consider 'allegations in the

complaint, exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim.'" Myska v. N.J. Mfrs. Ins. Co., 440

N.J. Super. 458, 482 (App. Div. 2015) (quoting Banco Popular N. Am. v. Gandi,

184 N.J. 161, 183 (2005)); see also AC Ocean Walk, LLC v. Am. Guarantee &

Liab. Ins. Co., 256 N.J. 294, 311 (2024) (same). We derive these facts from

those sources.

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Section 2.10 of the Sussex County Administrative Code 1 authorizes the

Board to appoint a County Counsel to a three-year term consistent with N.J.S.A.

40A:9-43, which gives each county board the power to "appoint a county

counsel" and sets three years as "[t]he term of office of the county counsel."

Section 2.10 designates County Counsel as "the chief legal advisor to the Board

and the Constitutional Officers" and lists the duties of County Counsel:

(A) advise the Board and all County agencies and

advise the Constitutional Officers when requested

to do so;

(B) approve the legal form and sufficiency of all

contracts, deeds and other documents and prepare

all ordinances and resolutions requested by the

Board;

(C) represent the Board and the agencies under the

Board's jurisdiction in all litigation, appeals,

proceedings before the administrative agencies

and recommend settlement in any matter where he

feels it appropriate;

(D) maintain records of all actions, suits and

proceedings relating to the County's interest and

submit reports to the Board on such matters on

request;

(E) represent the Constitutional Officers in all legal

matters related to their official duties; [and]

1

Defendants included in their appellate appendix a copy of the 2016 version of

Section 2.10 of the Code. The language of that version of the Code mirrors the

current version of the Code, which was adopted in 2019.

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3

(F) render advisory opinions requested by the

Board[.]

[Sussex County, N.J., Code § 2.10.]

Section 2.10 allows County Counsel to "appoint, subject to the approval of the

Board, such assistants or special counsels, as are necessary and within the

allocation of the County budget . . . ." Although neither the code nor statutory

provision requires the county-counsel position be full-time or part-time, section

2.10 expressly permits the County Counsel "to conduct private law practices."

In 2015, the Board appointed someone to serve as County Counsel for a

three-year term. That person worked full-time as County Counsel and received

a salary and health and retirement benefits. He was not appointed to a second

term.

Before plaintiff's appointment in 2018, the Board decided to use a public

bid process to obtain proposals for county-counsel services. The county-counsel

position would revert to part-time service with itemized monthly billing

statements based on an hourly rate of $150 and with no pension or benefits. The

Technical Specifications attached to the Request for Proposals (RFP) explained

what the County was seeking:

The County of Sussex is soliciting proposals from

attorneys licensed to practice in the State of New Jersey

to serve as County Counsel on a part-time basis. The

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4

individual selected will be paid at a[n] hourly rate

established by the [Board], and will not be hired as an

employee, or receive a salary or benefits. The

individual selected will be expected to personally

perform the contractual services as County Counsel.

....

The County especially reserves the right . . . to increase

or diminish the quantities as may be deemed reasonably

necessary or desirable . . . to complete the work detailed

by the contract.

[(Emphasis added).]

The Specifications expressly provided under the heading "Contract Period" that

"[t]he [c]ontract resulting from this proposal will be in effect from July 1, 2018,

for a three (3) year period ending June 30, 2021." The Specifications also

advised "[r]espondents are expected to examine the RFP with care and observe

all its requirements."

The Specifications' "SCOPE OF SERVICES" section again referred to the

role of County Counsel as being "part-time," set an hourly rate of $150, and

explained that County Counsel was "expected to" attend certain meetings,

"[p]rovide direct management and oversight of the Office of the Sussex County

Counsel"; provide advice and report to the Board and other designated

individuals, and "[m]aintain contact with" and "provide ongoing supervision and

coordination" of "approximately eight approved Special Counsel." The

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Specifications also provided County Counsel had to "procure and maintain, at

its own expense, [certain] minimum levels of insurance."

In June 2018, the Board appointed plaintiff to a three-year term as County

Counsel, beginning on July 1, 2018, and ending on June 30, 2021. At the time

he was appointed, plaintiff had been practicing law for almost forty years.

In May 2021, the Board again solicited proposals to serve as County

Counsel for another term through "the fair and open process." Plaintiff was not

appointed for another term.

On June 24, 2022, plaintiff filed a two-count complaint. He alleged that

while County Counsel, he had "objected to and refused to assist [d]efendants in

violating the law and public policy," specifically referencing his objections to

and reports of the purportedly illegal or otherwise wrongful acts of Sussex

County Sheriff Michael F. Strada. He characterized the Board's decision not to

appoint him to a second term as a "terminat[ion]" of his "contract on June 30,

2021" and asserted the Board had replaced him with Strada's personal attorney.

Plaintiff claimed he was terminated for refusing to "sanction" a proposed ballot

question and "Strada's personal legal bills." He alleged defendants retaliated

against him by creating "an ongoing hostile work environment," "undermining

his performance as [County] Counsel," "termination," and other unspecified

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"adverse employment actions." In count one, plaintiff alleged defendants, by

their purported adverse employment actions, had violated CEPA. In count two,

he alleged they violated CEPA by creating a hostile work environment.

On August 15, 2022, defendants moved to dismiss plaintiff's complaint

for failure to state a claim under Rule 4:6-2(e). Defendants argued plaintiff

failed to state a valid CEPA claim because the facts he alleged in the complaint

did not demonstrate he was an employee as a matter of law, he had suffered an

adverse employment action, or a causal connection between whistle-blowing

activity and an adverse employment action.

In opposition to the motion, plaintiff submitted his certification. 2 In his

certification, plaintiff asserted he was "required by the County to be physically

present with established office hours in the Administration Building on a daily

basis" and to be "on call 24/7 to deal with emergent matters." However, he

admitted he had continued his private legal practice with the law firm Kelly &

Ward (K&W), which he and his partner formed in 1998. He stated his "practice

was to spend mornings at K&W, afternoons at the County and return to K&W

after 5:00 p.m." According to plaintiff, the County made available to him

2

Plaintiff included in his appellate appendix a copy of his certification but not

the exhibits attached to the certification.

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County Counsel stationery, business cards, and other office equipment. He

asserted K&W "provided no resources to the County and the County provided

no resources to [K&W]" and that "[e]very effort was made . . . to prevent any

intermingling of these offices and the work of each office," but he conceded the

"[p]ayments for [his] services [to the County] were deposited in the firm's only

operating account along with all revenue generated by either [plaintiff] or [his

law partner]." 3 He asserted the "majority of [his] revenue as an attorney came

from the position of County Counsel."

He described the County's "Legal Department" as consisting of himself,

an Assistant County Counsel, and a "paralegal/secretary." He referenced "[t]he

County's Organization Chart" and stated it showed County Counsel had

"reporting obligations" to the Board and County Administrator. He set forth his

responsibilities as County Counsel, which were consistent with the duties

outlined in section 2.10 of the Sussex County Administrative Code.

3

The record also includes monthly purchase orders apparently signed by

plaintiff as County Counsel for K&W as "vendor" for services rendered as

County Counsel, invoices K&W submitted to the County "[i]n [r]eference [t]o:

Office of the County Counsel," and checks issued by the County to K&W.

Plaintiff does not contend those documents were not "matters of public record."

Banco Popular N. Am., 184 N.J. at 183.

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The court heard argument and, on December 28, 2022, entered an order

with a statement of reasons granting defendants' motion and dismissing the

complaint with prejudice. Citing D'Annuzio v. Prudential Insurance Co. of

America, 192 N.J. 110, 122 (2007), and applying the facts presented by plaintiff

to the twelve-factor test established in Pukowsky v. Caruso, 312 N.J. Super. 171,

182-83 (App. Div. 1998), the court concluded plaintiff's position as County

Counsel did not constitute an employer-employee relationship for purposes of

CEPA and, because his factual allegations were not sufficient to support that

element of his claim, plaintiff failed to state a claim on which relief could be

granted.

The court found plaintiff could not establish he had suffered a retaliatory

action because the Board's decision to allow his three-year term as County

Counsel to expire and not appoint him to a second term was "insufficient to

establish that [p]laintiff suffered a 'discharge, suspension, or demotion [,]'

[(quoting N.J.S.A. 34:19-2(e)),] or was 'terminated.'" The court held plaintiff's

"conclusory allegations" that he had suffered an adverse employment action or

hostile work environment failed "to establish any basis upon which to find that

he suffered 'discriminatory conduct,' let alone physically threatening or

humiliating circumstances, as necessary for a hostile work environment."

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Plaintiff moved for reconsideration. After hearing argument, the court

entered on May 22, 2023, an order with a statement of reasons denying plaintiff's

motion. The court held plaintiff had not established its decision was based on

an incorrect or irrational basis and had not provided any new evidence or

information. The court rejected plaintiff's argument it had converted the motion

to dismiss into a summary-judgment motion, stating it had based its decision on

the allegations in the complaint and public records defendants had submitted.

Appealing from the December 28, 2022 and May 22, 2023 orders, 4

plaintiff argues the court "failed to understand the important social ramifications

of CEPA, and the relationship of CEPA to the Code of Professional Ethics ." He

contends with the information set forth in the certification he submitted in

opposition to the motion to dismiss, he established he qualified as an employee

under CEPA. He also argues a failure to renew a contract can constitute

retaliation.

We note plaintiff does not raise or brief on appeal the court's finding he

had failed to allege facts necessary to establish the existence of a hostile work

environment. Nor does plaintiff argue the court erred in deciding the issues

4

In a March 5, 2024 order, the Supreme Court denied plaintiff's motion for

direct certification.

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before it without requiring the parties to conduct discovery. Accordingly, we

deem those issues and the dismissal of the hostile-work-environment claim

waived and do not address them. See Green Knight Cap., LLC v. Calderon, 469

N.J. Super. 390, 396 (App. Div. 2021) (declining to reach an issue plaintiff had

failed to raise or brief on appeal); N.J. Dep't of Env't Prot. v. Alloway Twp., 438

N.J. Super. 501, 505 n.2 (App. Div. 2015) (finding "[a]n issue that is not briefed

is deemed waived upon appeal").

II.

We review a decision on a Rule 4:6-2(e) dismissal motion "de novo,

affording no deference to the trial judge's legal conclusions." Maia v. IEW

Constr. Grp., 257 N.J. 330, 341 (2024). In that de novo review, we determine

"whether a cause of action is 'suggested' by the facts." Ibid. (quoting Printing

Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "[W]e

accept the facts alleged in the complaint as true, granting plaintiff 'every

reasonable inference of fact.'" Guzman v. M. Teixeira Int'l, Inc., 476 N.J. Super.

64, 67 (App. Div. 2023) (quoting Major v. Maguire, 224 N.J. 1, 26 (2016)).

We affirm the dismissal of a complaint when the complaint "fails to state

a 'claim that supports relief, and discovery will not give rise to such a claim

. . . .'" Maia, 257 N.J. at 341-42 (quoting Dimitrakopoulos v. Borrus, Goldin,

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11

Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019)). "[T]he

essential facts supporting [the] plaintiff's cause of action must be presented in

order for the claim to survive; conclusory allegations are insufficient in that

regard." AC Ocean Walk, 256 N.J. at 311 (quoting Scheidt v. DRS Techs., Inc.,

424 N.J. Super. 188, 193 (App. Div. 2012)). "[L]egal sufficiency requires

allegation of all the facts that the cause of action requires." Cornett v. Johnson

& Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd as modified, 211

N.J. 362 (2012), abrogated on other grounds by McCarrell v. Hoffmann-La

Roche, Inc., 227 N.J. 569, 590-92 (2017). Thus, "a dismissal is mandated where

the factual allegations are palpably insufficient to support a claim upon which

relief can be granted." Rieder v. State, Dep't of Transp., 221 N.J. Super. 547,

552 (App. Div. 1987).

We review a trial court's order on a reconsideration motion under an

abuse-of-discretion standard. Branch v. Cream-O-Land Dairy, 244 N.J. 567,

582 (2021). A court abuses its discretion when its "decision [is] made without

a rational explanation, inexplicably depart[s] from established policies, or

rest[s] on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504

(2008). "[A] trial court's legal conclusions are reviewed de novo." State v.

Erazo, 254 N.J. 277, 297 (2023).

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Turning to the cause of action at issue in this appeal, CEPA, we recognize

"[t]he Legislature enacted CEPA 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.'" Allen v. Cape May Cnty.,

246 N.J. 275, 289 (2021) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 461

(2003)). CEPA "seeks to overcome victimization of employees and to protect

those who are especially vulnerable in the workplace from the improper or

unlawful exercise of authority by employers." Sauter v. Colts Neck Volunteer

Fire Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017) (quoting Abbamont

v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 418 (1994)).

Accordingly, the statute "shields an employee who objects to, or reports,

employer conduct that the employee reasonably believes to contravene the legal

and ethical standards that govern the employer's activities." Hitesman v.

Bridgeway, Inc., 218 N.J. 8, 27 (2014); see also N.J.S.A. 34:19-3(a), (c). To

that end, CEPA prohibits an employer from retaliating "against an employee

who discloses, threatens to disclose, or refuses to participate in an activity of the

employer 'that the employee reasonably believes is in violation of a law, or a

rule or regulation promulgated pursuant to law.'" Sauter, 451 N.J. Super. at 587

(quoting N.J.S.A. 34:19-2 to -3).

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To establish a prima facie CEPA claim, a plaintiff must demonstrate:

(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-

3(c); (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.

[Allen, 246 N.J. at 290 (quoting Dzwonar, 177 N.J. at

462).]

Because "CEPA created 'a statutory exception to the general rule that an

employer may terminate an at-will employee with or without cause,' . . . the

employer-employee relation is at the heart of the statute." Sauter, 451 N.J.

Super. at 587 (quoting Higgins v. Pascack Valley Hosp., 158 N.J. 404, 418

(1999)). CEPA "defines an employee broadly as 'any individual who performs

services for and under the control and direction of an employer for wages or

other renumeration.'" Ibid. (quoting N.J.S.A. 34:19–2(b)).

Although "CEPA's definition of 'employee' is broad," the Supreme Court

in D'Annunzio "did not 'extend' the statute to independent contractors" but rather

"acted to ensure CEPA's protections for those workers, regardless of label, who

stand in a true employer-employee relationship with the . . . entity purchasing

their services." Sauter, 451 N.J. Super. at 591. "In disputes over a worker's

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status under [CEPA], 'what matters most is that an individual's status be

measured in the light of the purpose to be served by [CEPA].'" Est. of Kotsovska

ex rel. Kotsovska v. Liebman, 221 N.J. 568, 595 (2015) (quoting D'Annunzio,

192 N.J. at 122 n.7).

In D'Annuzio, the Court identified three considerations that "must come

into play" when "CEPA . . . is applied in the setting of a professional person or

an individual otherwise providing specialized services allegedly as an

independent contractor": "(1) employer control; (2) the worker's economic

dependence on the work relationship; and (3) the degree to which there has been

a functional integration of the employer's business with that of the person doing

the work at issue." 192 N.J. at 122. The Court held "[t]he test for determining

those aspects of a non-traditional work relationship was set out in Pukowsky"

and confirmed its "acceptance of that test as appropriate for CEPA purposes."

Ibid.

Under the Pukowsky test, a court should consider the following factors

when determining if a plaintiff qualifies as an employee:

(1) the employer's right to control the means and

manner of the worker's performance; (2) the kind of

occupation—supervised or unsupervised; (3) skill; (4)

who furnishes the equipment and workplace; (5) the

length of time in which the individual has worked; (6)

the method of payment; (7) the manner of termination

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of the work relationship; (8) whether there is annual

leave; (9) whether the work is an integral part of the

business of the "employer;" (10) whether the worker

accrues retirement benefits; (11) whether the

"employer" pays social security taxes; and (12) the

intention of the parties.

[312 N.J. Super. at 182-83.]

The factors should be examined in the context of the "totality of the

circumstances." Id. at 182. "[A] number of the factors overlap, and [courts]

weigh the factors qualitatively rather than quantitatively." Hoag v. Brown, 397

N.J. Super. 34, 48 (App. Div. 2007).

The trial court, as we do now, analyzed each of the Pukowsky factors.

The court found each factor weighed against finding plaintiff was the County's

employee. The court found the first, second, and third factors weighed against

plaintiff's position because he had performed "unsupervised" work "that

required the use of his independent professional judgment, skill, and compliance

with relevant professional standards for attorneys" and "[d]efendants did not

have the right to control the means and manner of [his] performance."

County Counsel's duties are determined by the County's Administrative

Code. The duties plaintiff certified he had performed as County Counsel

matched those enumerated in the Code. See Sussex County, N.J., Code § 2.10.

According to plaintiff, he was required to work "established office hours" in the

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Administration Building, but he also certified he set those hours, stating it was

"[his] practice . . . to spend mornings at K&W, afternoons at the County, and

return to K&W" in the evening. He certified he had "reporting obligations" as

County Counsel but did not state whether or how he was supervised, other than

noting he was required to use attorneys approved by the Board, which was

consistent with the Code provision that made his appointment of "assistants or

special counsels" subject to Board approval. Id. at § 2.10(H). Plaintiff's skill

and experience as an attorney are undisputed; so too is his obligation to exercise

independently his professional judgment in accordance with the Rules of

Professional Conduct in representing his clients. See Stomel v. City of Camden,

192 N.J. 137, 155 (2007) (finding a municipal public defender was required to

"exercise independent professional judgment" without city supervision).5 We

5

In Stomel, the Court ultimately affirmed this court's conclusion the plaintiff

could be viewed an employee for purposes of advancing a CEPA claim based

on its review of the facts of that case. Id. at 141. Those facts are distinguishable

from the facts plaintiff alleges in this case. The plaintiff in Stomel had served

as Camden's municipal public defender for seventeen years. Id. at 142.

Throughout that time, the city paid him monthly based on an annual salary. Id.

at 155. He was not paid until the city's law department certified his work had

been done satisfactorily. Id. at 156. The municipal court scheduled

appointments for indigent people to meet with him. Ibid. Sometimes his

appointment was renewed through a new annual contract; sometimes he served

without a new contract, following the terms of the last contract. Id. at 142. At

the time of the alleged adverse employment action, he had not had a new contract

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recognize that plaintiff did not control every aspect of his work as County

Counsel. But the first three Pukowsky factors nevertheless tilt against finding

an employer-employee relationship.

The trial court found the fourth Pukowsky factor – the provider of

equipment and workplace – did not support plaintiff's position because plaintiff

"utilized the resources of his law firm to perform his County Counsel duties"

when he submitted "itemized billing entries . . . on letterhead provided by

[K&W], not by the County." Plaintiff may have used his firm's letterhead to

submit invoices, but the County provided him with office space and equipment

to be used in his capacity as County Counsel. This factor tilts in favor of finding

an employer-employee relationship.

The trial court held the fifth and seventh Pukowsky factors – the length of

time the individual has worked and the manner of termination of the work

relationship – did not support plaintiff's position because his role as County

in over a year. Id. at 142-43. The plaintiff testified as a government witness in

a criminal trial of the municipal prosecutor, who had solicited a contribution

from the plaintiff, threatening he could not guarantee his reappointment if he

failed to contribute. Id. at 143. The plaintiff's testimony implicated the mayor.

Three days after a mistrial was declared in that trial, the mayor sent the plaintiff

a letter, advising him he was being replaced as the municipal public defendant

by another attorney in approximately two weeks. Ibid. Based on those facts,

the Court concluded the plaintiff had set forth a prima facie case he was an

employee for CEPA purposes. Id. at 156.

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Counsel was "meant to be a part-time position under the clear terms of the . . .

RFP" and was limited by code and statute to a three-year term, which had

expired. See N.J.S.A. 40A:9-43; Sussex County, N.J., Code § 2.10. We agree

these factors do not support finding an employer-employee relationship.

The trial court held the sixth factor – the method of payment – did not

support plaintiff's position because the County paid for County Counsel services

by issuing checks to K&W based on K&W invoices. In addition, as plaintiff

conceded in his certification, those payments were deposited in K&W's

operating account. The court also held the eighth, tenth, and eleventh factors,

which address various types of employee benefits, did not favor plaintiff's

position because he did not receive any of those benefits. We agree that all of

those factors cut strongly against finding plaintiff was the County's employee.

As for the ninth factor, whether the work is an integral part of the business

at issue, the trial court found "[p]laintiff's role as County Counsel c[ould not] be

described as an integral part of the business of the employer, which is a

government entity" because his task was "to fulfill the specific, limited role of

providing legal services as and when needed by the County" pursuant to section

2.10 of the Code. We believe this factor based on the existing record favors a

finding of an employer-employee relationship. It is true that as County Counsel,

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plaintiff was not governing. Cf. Sauter, 451 N.J. Super. at 593 (finding the work

of a firefighter was an integral part of the business of a fire company). But

giving plaintiff "every reasonable inference of fact," Major, 224 N.J. at 26, it is

fair to conclude he played an important and possibly integral role in enabling

those who governed to govern.

Regarding factor twelve, the parties' intention, the trial court held the

RFP's Technical Specifications made clear the County was seeking the services

of a "part-time" County Counsel who would "not be hired as an employee, or

receive a salary or benefits." 6 We agree that factor strongly cuts against finding

an employer-employee relationship. We recognize a label placed on a job is not

determinative of whether an employer-employee relationship exists. Sauter, 451

N.J. Super. at 591. But how a position is described to those applying for it can

provide critical insight into the parties' intention.

Weighing those factors qualitatively, we conclude plaintiff's factual

allegations, even considering those made in his certification, are not sufficient

to support a finding he was the County's employee. Without supporting that

6

In his certification, plaintiff stated his "understanding of the words 'not be

hired as an employee' as used in the Technical Specifications refers to the words

'salary or benefit' that directly follow." That assertion does not cause us to

question the clarity of the RFP's language or plaintiff's ability to understand it .

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critical element of his CEPA claim, plaintiff failed to state a claim on which

relief can be granted and the trial court appropriately granted defendants' motion

to dismiss.

In the interest of completeness, we now turn to the trial court's conclusion

about whether plaintiff made sufficient factual allegations to support the third

prong of his CEPA claim: whether defendants took an adverse employment

action against him. Allen, 246 N.J. at 290. Under N.J.S.A. 34:19-2(e),

"retaliatory action" is defined 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." However, "[w]hat constitutes an 'adverse

employment action' must be viewed in light of the broad remedial purpose of

CEPA." Donelson v. DuPont Chambers Works, 206 N.J. 243, 257 (2011).

When a plaintiff has sufficiently alleged an employer took an adverse

employment action as a pretext for discrimination, "the burden of persuasion is

shifted to the employer to rebut the presumption of discrimination by

articulating some legitimate nondiscriminatory reason for the adverse

employment action." Allen, 246 N.J. at 290-91 (quoting Kolb v. Burns, 320 N.J.

Super. 467, 478 (App. Div. 1999)). If the employer articulates a legitimate

nondiscriminatory reason for its action, the burden shifts back to the plaintiff to

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prove "the employer's proffered reasons were a pretext for the discriminatory

action taken by the employer." Id. at 291 (quoting Kolb, 320 N.J. Super. at 478)

The trial court held plaintiff could not establish he suffered a retaliatory

action because he had been appointed to a three-year statutory term that expired

as a matter of law. Citing Abbamont v. Piscataway Township Board of

Education, 269 N.J. Super. 11 (App. Div. 1993), aff'd, 138 N.J. 405 (1994),

plaintiff argues the court "failed to recognize that failure to renew a contract is

a CEPA retaliatory action." The problem with plaintiff's argument is that this

case does not involve the renewal of a contract; it involves the expiration of a

term of office set by the Legislature.

The plaintiff in Abbamont, 138 N.J. at 410, was a non-tenured public-

school teacher who had been hired on an annual basis for three consecutive

school terms. After he complained about safety conditions at the school and

while he was on a permitted temporary leave of absence, he received a letter

from the board of education advising him he would not be rehired. Id. at 413-

14. The plaintiff's CEPA case was tried, and the jury returned a verdict in his

favor. Id. at 413. The Court affirmed a decision of this court reinstating the

jury's verdict after the trial court had dismissed the complaint after the verdict

was rendered. Id. at 413, 435.

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The plaintiff in Yurick v. State, 184 N.J. 70, 73 (2005), was a former

county prosecutor who alleged the Governor and others had violated CEPA in

exercising the statutory power to supersede him as prosecutor after the

expiration of his five-year term. Id. at 74. That term was established by the

Legislature in N.J.S.A. 2A:158-1. Focusing on the unique characteristics of the

county-prosecutor position and on the wide discretion a governor has in

exercising the power of supersession, the Court reinstated the trial court's

dismissal of the plaintiff's CEPA claim. Id. at 83. Holding supersession was

"not the equivalent of removal from office," the Court noted "[p]laintiff 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." Ibid.

We think this case is more akin to Yurick. Unlike the plaintiff in

Abbamont, plaintiff did not have a contractual relationship with defendants that

had been renewed multiple times. Like the plaintiff in Yurick, he was a county

official appointed for a limited term established by the Legislature. N.J.S.A.

40A:9-43. And like the plaintiff in Yurick, he may have hoped he would remain

in office when his statutory term expired, but his factual allegations do not

support the conclusion he had any "reasonable expectation that he would be

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permitted to do so." Yurick, 184 N.J. at 83. Accordingly, we conclude plaintiff,

who was subject to a statutory term of office, failed to allege an adverse

employment action under CEPA.

Because plaintiff did not set forth a prima facie case supporting the

elements of a CEPA cause of action, we affirm the December 28, 2022 order

granting defendants' motion to dismiss and the May 22, 2023 order denying

plaintiff's reconsideration motion.

Affirmed.

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