# Nicoletta v. North Jersey District Water Supply Commission > Supreme Court of New Jersey · July 6, 1978 · 77 N.J. 145 URL: https://www.frixlaw.com/law-library/cases/9754870 ## Case - **Full name:** Nicholas Nicoletta, Plaintiff-Appellant, v. North Jersey District Water Supply Commission of the State of New Jersey Et Al., Defendant-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** July 6, 1978 - **Citations:** 77 N.J. 145; 390 A.2d 90; 1978 N.J. LEXIS 209 - **Precedential status:** Published - **Opinion:** Concurrence - **Judges:** Hughes, Sghrbiber - **Cited by:** 93 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754870 ## How later opinions describe it (automated extraction) - recognizing right to due process protections in administrative disciplinary proceedings implicating reputational liberty interests, including right to confront and cross-examine adverse witnesses - recognizing that the first prerequisite of due process is fair notice, so that a response can be prepared and the respondent can be heard - holding that "the first prerequisite of due process is fair notice, so that a response can be prepared and the respondent fairly heard" - recognizing "the key concept is 'entitlement,'" when deciding whether an asserted property interest triggers constitutional protections - finding the impairment of future employability by operation of state law to be a protectible liberty interest ## Opinion text P ashman, J., concurring. I join fully in the well-reasoned analysis of the Chief Justice’s opinion for the Court which clearly establishes plaintiff’s entitlement to, and non-receipt of, procedural due process in the dismissal proceedings below. Plaintiff’s dismissal from public service implicated his constitutionally protected “liberty” interest and obligated his governmental employer to afford him the safeguards of procedural due process in effecting the termination of his *172 employment. I write separately in an attempt to clarify the rights and duties of governmental employers vis-a-vis their nontenured employees in this context and to note my concern over certain observations made in Part III of the majority opinion which take a rather grudging view of this Court’s power to review the personnel actions of the Commission. I In the absence of any reasonable employee expectancy of continued emplojunent, derived from law, regulation, contract or practice, a governmental employer has a relatively free rein with respect to the termination of an employee. And undeniably not all reasons for the discontinuance of employment implicate such an employee’s liberty interest as that concept has been defined by this Court and the United States Supreme Court. See Williams v. Civil Service Commission, 66 N. J. 152, 156-157 (1974); Board of Regents v. Roth, 408 U. S. 564, 573-575 (1972). Illustrative of these reasons is the case where an employee is hired for a specific limited period and is terminated simply because that period has expired. See Board of Regents v. Roth, supra. However, in the case of a termination precipitated by the alleged misconduct or unsatisfactory performance of the employee which will be disseminated to the extent that the employee’s prospects for future employment could be impaired, the employee’s constitutional entitlement to notice and “some kind of hearing” comes into play. 1 This hearing *173 provides him with the appropriate opportunity to protect himself against being “wrongfully stigmatized” by spurious accusations of impropriety. Governmental employment may not he terminated on grounds of misconduct without fundamentally fair procedures to determine whether the misconduct has in fact occurred, as constitutional due process *174 forbids arbitrary deprivations of liberty. Cf. Goss v. Lopez, 419 U. S. 565, 574 , 95 S. Ct. 729 , 42 L. Ed. 2d 725 (1975). Of course, the employee’s attempt may well prove unsuccessful, with the hearing resulting in the sustaining of the termination and affirmance of the reasons therefor. There is no constitutional proscription of a termination whose bases might ultimately have a detrimental effect on the employee’s subsequent career. As the Supreme Court has observed in another context, “[procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U. S. 247 , 98 S. Ct. 1042, 1050 , 55 L. Ed. 2d 252, 262 (1978). In other words, the hearing may establish that the deprivation of liberty occasioned by the dismissal is warranted because the charges against the employee are valid. The constitutional command is only that no such termination may be accomplished without a hearing at which the employee may attempt to dissuade the employer from discharging him (either by showing lack of culpability or circumstances warranting a reduction in the *175 disciplinary sanction) or, failing that, to convince the employer to mitigate the potentially harmful consequences of the termination by formally modifying the official record of its basis from a stigmatizing to some nonderogatory reason. See generally Codd v. Velger, 429 U. S. 624, 633-34 , 97 S. Ct. 882 , 51 L. Ed. 2d 92 .(Stevens, J., dissenting). 2 In a case such as that before us, the better practice would be for the governmental employer to provide the employee with notice of the charges against him and of its intent to take adverse action against him. The notice should also, in effect, order him to show cause at a hearing to be held a reasonable time thereafter why his employment should not be terminated for the reasons specified in the notice. AVhere the governmental employer has reasonable cause to believe that the employee is guilty of misconduct which, if proven, would justify his dismissal, the employer may appropriately impose a disciplinary suspension with or without pay pending the termination hearing. After the hearing, the decision-making authority will make its determination as to whether the proposed termination for the reasons specified is sustained. *176 3 While a post-termination hearing to determine whether the dismissal will be upheld passes constitutional muster, a pre-termination hearing is much preferable. There the employee is not faced with a fait accompli and will not be confronted with the difficult task of overcoming the psychological resistance inherent in an attempt to upset a decision already made. I agree with the Court’s refusal to direct that plaintiff be reinstated with back pay. Nicoletta was deprived of his constitutional right to procedural due process in his dismissal from employment. Nevertheless, the situation in this case is to be distinguished from the constitutional violation occurring when the termination of a governmental employee is predicated upon his exercise of constitutionally protected rights. In such a case, it is the governmental employer’s reason for, rather than its method of, terminating the employee which is constitutionally invalid. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283 , 97 S. Ct. 568 , 50 L. Ed. 2d 471 (1977); Perry v. Sindermann, 408 U. S. 593, 597-598 , 92 S. Ct. 2694 , 33 L. Ed. 2d 570 (1972); Pickering v. Bd. of Ed., 391 U. S. 563, 568 , 88 S. Ct. 1731 , 20 L. Ed. 2d 811 (1968); English v. College of Medicine and Dentistry of New Jersey, 73 N. J. 20, 23 (1977); Williams v. Civil Service Commission, supra, 66 N. J. at 157-158; Donaldson v. Bd. of Ed. of No. Wildwood, 65 N. J. 236, 242 (1974); Winston v. Bd. of Ed. of So. Plainfield, 64 *177 N. J. 582 (1974); Burlington County Evergreen Park Mental Hosp. v. Cooper, 56 N. J. 579, 583 (1970); Endress v. Brookdale Community College, 144 N. J. Super. 109, 130 (App. Div. 1976). As the Supreme Court stated in Perry v. Sindermann, supra: For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. * ® * [408 U. S. at 597, 92 S. Ct. at 2697] This limitation on the powers of a governmental employer exists irrespective of the employment status of the employee. In Mt. Healthy City Bd. of Ed. v. Doyle, supra, Justice Eehnquist recognized that an employee’s constitutional claims are not defeated by his lack of tenured status: *' *■ * Even though he could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, * * * he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms. [429 U. S. at 283-284, 97 S. Ct. at 574 (citations omitted)] Where the dismissal of an employee is in retaliation for constitutionally protected activity, the termination is void ab initio and the employee is entitled to reinstatement with hack pay to the date of the illegal discharge in order to remedy the infringement of his substantive constitutional rights. Eestoring the status quo ante by making the employee whole is necessary since the employee could not have been validly terminated in the first place. However, in the instant ease, it is the method by which Ficoletta’s termination was effected which is constitutionally *178 defective, since his dismissal from public service triggered his constitutional right to procedural due process and he did not receive the required hearing. The substantive basis of his termination, if factually supported, was clearly valid. In contrast to the case where the discharge is illegal on its merits, a termination which is only procedurally defective requires a remedy appropriate to the less egregious nature of the constitutional violation. The constitutional violation in such a case, namely, the failure to accord procedural due process, is not the cause of the termination, as it is in the retaliatory discharge situation. Where the only injury suffered has been the denial of a termination hearing, automatically ordering back pay for an employee whose procedurally defective termination might be proven to have been substantively justified would be tantamount to a windfall. Cf. Carey v. Piphus, supra, 435 U. S. at 260 , 98 S. Ct. at 1051 , 55 L. Ed. 2d at 263 . 4 The appropriate remedy is to direct that the employee be made whole by receiving the hearing to which he was entitled in the first place. Since even after a proper hearing is held the original termination may stand, if the factual justification therefor is established, ordering the employee’s reinstatement pending the hearing would make him more than whole. 5 The employee is en *179 titled to receive the remedy which will cure the constitutional deprivation he has suffered and no more. Assuring that the employee is provided with the constitutionally mandated termination hearing does exactly that. II However, I am troubled by the implications of the Court’s rather circumscribed view of the potential results of the hearing it grants plaintiff. See ante at 171. The Court may be construed as suggesting that even if plaintiff is able to totally invalidate the factual predicate of his discharge, so that the Commission could have no basis for reaffirming its prior decision to dismiss him for that particular reason, the Commission can nevertheless decide to terminate his employment for no reason at all in the exercise of its discretion under N. J. S. A. 58:5A — 2. I believe that according the Commission such broad power over its employees would permit arbitrary action by that governmental agency and could deny plaintiff and other employees of the Commission substantive due process. Although the issue is not directly presented in this appeal, I am constrained to comment upon it. Admittedly, N. J. S. A. 58:5A-2 confers broad powers on the Commission with respect to the employment of its police force, providing, in pertinent part, that the 'Commission “shall have sole control” of all employment matters. The Court interprets this statute as granting the Commission the right to terminate plaintiff’s employment with or without cause, see anta at 150, citing our recent decision in English v. College of Medicine and Dentistry, supra. However, this broad grant of power, which concededly greatly narrows the scope of judicial review of the merits of the Commission’s personnel decisions, is not absolute. As the Court recognizes, termination for an illegal reason, such as the exercise of First Amendment rights, would not be countenanced. See ante at 155-156. Moreover, even in the ease of private employers, who are generally not subject to the constitutional constraints *180 binding governmental employers, the purportedly untrammeled right to terminate without cause is qualified by numerous statutory restrictions on the reasons for employee discharge. See, e.g., N. J. S. A. 34:15-39.1 (unlawful to discharge employee claiming worker’s compensation benefits); N. J. S. A. 10:5-12(d) (unlawful to take reprisals against any person who has filed a complaint with the Division on Civil Rights); 42 U. S. C. § 2000e-3 (unlawful employment practice for an employer to discriminate against any employee who has filed a discrimination charge with the Equal Employment Opportunity Commission); 29 U. S. C. § 158 (a) (3) and (4) (unfair labor practice for employer to discriminate against an employee because of union activities or of his filing an unfair labor practice charge with the National Labor Relations Board). See also Cooper v. Nutley Sun Printing Co., Inc., 36 N. J. 189, 197 (1961) (N. J. Const. (1947), Art. I, para. 19, prevents private employers from discharging employees for collective organizational activities). In my view, with respect to a governmental employer, the right to discharge is further qualified by the prohibition of any termination of employment for an arbitrary and capricious reason, even where no liberty interest is implicated. The principle that governmental entities may act only in a manner consistent with due process is fundamental in our democratic system. In its affirmative formulation, this constitutional guarantee requires that all governmental action be rationally related to the furtherance of a legitimate governmental objective. While the mandate that governmental action have a rational basis may not, in the instant context, rise to the level of a rule that the termination of governmental employment may be based only upon good cause, it surely requires that the basis for such governmental action be something more than “no cause.” The Commission’s “sole control” over the employment of its police must be construed as being subject to the implied qualification that no termination may be based on an irrational cause. As eloquently stated by Justice Marshall: *181 The prior decisions of this Court * ~ * establish a principle that is as obvious as it is compelling- — i. e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect to employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory or contractual controls, a government employer is different. The government may only act fairly and reasonably. [Board of Regents v. Roth, supra, 408 U. S. at 588, 92 S. Ct. at 2714 (Marshall, J., dissenting) (footnotes omitted)] See Arnett v. Kennedy, 416 U. S. 134, 183 , 94 S. Ct. 1633 , 40 L. Ed. 2d 15 (1974) (White, J., concurring in part, dissenting in part); Cafeteria Workers v. McElroy, 367 U. S. 886, 898 , 81 S. Ct. 1743 , 6 L. Ed. 2d 1230 (1961); Slochower v. Bd. of Ed., 350 U. S. 551, 556 , 76 S. Ct. 637 , 100 L. Ed. 692 (1956); Wieman v. Updegraff, 344 U. S. 183, 192 , 73 S. Ct. 215 , 97 L. Ed. 216 (1952). Indeed, absent such a limitation on the Commission’s authority, substantial questions concerning the constitutional permissibility of such an unrestricted delegation of legislative power would be raised. Although this intermediate standard is difficult to articulate with precision, it at least requires that no governmental employee may be validly terminated for a reason that lacks any rational connection to his employment. 6 The late Chief Justice Weintraub grappled with this same problem in his opinion in Zimmerman v. Bd. of Ed. of Newark, 38 N. J. 65 (1962) : The Legislature intended wide latitude in the employing authority to determine fitness for permanent employment. It is clear that *182 public employment may not be refused upon a basis which would violate any express statutory or constitutional policy. A simple example would be discrimination for x-aee or religion. But I am not sure such specific limitations are the only restraints. If the employing agency, for an absurd example, thought blondes were intrinsically too frivolous for permaxient employment, a court would find it difficult to withhold its hand. But if we may inquire into “unreasonableness,” it would seem to follow that there must be a “reason,” i. e., “cause” for refusal to continue the teacher into a tenure status. That course has its difficulties. It would not mean the court would not recognize a wide range of “reasons” or would lightly disagree with the employer’s finding that the “reason” in fact existed. But it would follow that upon demand the teacher would be entitled to a statement of the grounds, with the right to a hearing and to a review as to whether the grounds are arbitrary ixx nature or devoid of factual support. [38 N. J. at 80 (Weintraub, C. J., concurring) (citations omitted)] It would not seem open to serious dispute that where the actual basis of an employee’s termination is a reason wholly irrelevant to his employment, such as, for example, the mere whim of his superiors, the governmental employer has violated that employee’s constitutional right to be free from arbitrary and capricious governmental action. This interest is as much the subject of constitutional protection as its more famous constitutional brethren. A non-policymaking, non-confidential governmental employee cannot, consistent with due process, be discharged from a job that he is satisfactorily performing solely for such an arbitrary reason. Cf. Elrod v. Burns, 427 U. S. 347, 375 , 96 S. Ct. 2673 , 49 L. Ed. 2d 547 (1976) (Stewart, J., concurring). Accordingly, in my view the Commission’s discretionary authority is not unrestricted and its personnel actions may be set aside if they are shown to be arbitrary, capricious or otherwise oppressive. As is the case with the other situations where the reason for termination is itself constitutionally proscribed, an employee so terminated is entitled to reinstatement with back pay to remedy his constitutional deprivation. While I have every confidence that the officials of the Commission and other governmental entities possessing similarly *183 plenary authority over any or all of their employees will at all times act in conformance with the public trust reposed in them, the danger that some might read the opinion of the Court as inferentially sanctioning conduct which to me would constitute an unconstitutional abuse of those broad powers compels me to add this word of caution lest we be so misconstrued. I do not understand the Court’s references to Bishop v. Wood, 425 U. S. 34 , 96 S. Ct. 1281 , 47 L. Ed. 2d 556 (1976), and Paul v. Davis, 424 U. S. 693 , 96 S. Ct. 1155 , 47 L. Ed. 2d 405 (1976), see ante at 157-162, to indicate its approval of the rationale of those cases, aptly described by Justice Brennan in dissent as “overtly hostile to the basic constitutional safeguards of the Due Process Clauses of the Fifth and Fourteenth Amendments * * Bishop v. Wood, supra, 426 U. S. at 361, 96 S. Ct. at 2085 (Brennan, J., dissenting). As the Chief Justice correctly points out, in New Jer- *173 sey, as a result of Civil Service regulation (N. J. A. C. 4:1-8.14), see ante at 159-160, the effect of the mere fact of an employee’s dismissal from governmental service on his prospects for future employment in the public sector will automatically satisfy even the Supreme Court’s narrow definition of the liberty interest protected by the federal constitution. See ante at 159-162. The dissent’s claim, see post at 189-190 that the disability resulting from this regulation is inapplicable to plaintiff because his employment was not subject to Civil Service seems unwarranted in view of the absence of any limitation on the definition of “public service” as used in N. J. A. O. 4:l-8.14(b) (6) to the “classified” public service. We thus need not consider the impact of the fact of such a dismissal on future employment prospects in the private sector or of the potential stigma (including injury to reputation) flowing from the reasons for the dismissal in assessing whether plaintiff’s liberty interest has been infringed. With respect to Bishop v. Wood’s narrowing of the circumstances in which a discharge for a blameworthy cause may be found to have stigmatic legal implications which infringe on an employee’s protected liberty interest, I disagree with the disingenuous reasoning of the Supreme Court on the federal constitutional issue. As tellingly observed by Justice Brennan, in Bishop, the Court * ** * effectively destroyed] even that last vestige of protection for “liberty” by holding that a State may tell an employee that he is being fired for some nonderogatory reason, and then turn around and inform prospective employers that the employee was in fact discharged for a stigmatizing reason that will effectively preclude future employment. [426 U. S. at 351-352, 96 S. Ct. at 2080 (Brennan, J., dissenting)] A pre-Bishop v. Wood commentator has succinctly noted the damage to an individual’s future employment opportunities created by any dismissal from public employment for failure to render satisfactory or acceptable service: * * * Thg standards for satisfactory government service are not extraordinarily high and failure to meet them for whatever reason carries heavy overtones of incompetence. Moreover, all reasons for such dismissals, whether publicized or not, tend to find *174 their way into data banks. It is unrealistic to blink at the serious, perhaps insuperable, difficulties that a dismissed public employee may experience in finding alternate employment, due merely to the fact that he has been fired by the government. [R. Johnson, “Probationary Government Employees and the Dilemma of Arbitrary Dismissals,” 44 Univ. of Cincinnati L. Rev. 698, 712-713 (1975) (footnotes omitted)] Where an employee is dismissed for a more blameworthy reason, such as misconduct, the damage to his prospects for future employment is necessarily magnified greatly. Unless any publication of the reason for dismissal is to be prohibited, a rather unlikely eventuality at best, it borders on the absurd to believe that the mere fact of nonpublieation at the precise time of the termination means that the dismissal cannot detrimentally affect the employee’s prospects for future employment. The ultimate touchstone for finding an infringement of liberty must be the potential negative impact of the termination of governmental employment on future employability, whether that impact results from the fact of dismissal alone or from the underlying reasons therefor. The dissent relies on the Godd majority’s dictum that the sole purpose of the termination hearing is to provide an opportunity for the stigmatized employee to vindicate his name, see post at 193, for its conclusion that refutation of the charges underlying the termination and mitigation of the sanction are issues not cognizable at the hearing. However, it is noteworthy that Justice Stevens, the author of Bishop v. Wood, supra, dissented in Godd. He observed that in neither Roth, supra, nor Bishop did the Supreme Court “state or imply that a name-clearing hearing was the orily remedy mandated by the Constitution.” 429 U. S. at 634 n. 6, 97 S. Ct. 882, 888 . As he cogently demonstrates, under Roth the name-clearing hearing may be sufficient where only the reputational injury aspect of the employee’s protected liberty interest is implicated. However, even assuming that a hearing of such a limited scope would satisfy due process standards in the reputational context, where an employee’s future employability may be adversely affected by the stigmatization incident to his dismissal from public employment, due process requires a hearing of broader scope before such a deprivation of his liberty may be imposed. See 429 U. S. at 633 n. 3, 97 S. Ct. 882 . An employee suspended without pay pending a hearing who exonerates himself at his hearing should receive back pay to the date of his suspension in addition to being reinstated if he can show" that his employer lacked reasonable cause to believe that he was guilty of dischargeable conduct at the time of his suspension. Under these circumstances, suspension without pay is arbitrary. However, since I would assume that governmental employers normally would not impose so severe a sanction as a suspension without pay in the absence of a reasonable, good faith belief of the employee’s culpability, the occasions where an ultimately exonerated employee receives back pay for the period of his improper suspension should be rare. The availability, as a result of Cwrey, in a federal civil rights action of nominal damages as a remedy for a denial of procedural due process, see ante at 367, is irrelevant to the issue of the type of relief warranted in direct appeal from the action of a governmental body in dismissing an employee. I intimate no view, nor do I understand the Court to, as to whether the limitation imposed by Carey on the redress available for such federal constitutional violations has any effect on the at-times more solicitous protection afforded by our own constitution. Tlie situation may differ in a case where the employer could not have received a disciplinary suspension pending a termination hearing. In view of the broad grant of power accorded the governmental employer by the statute herein, it would seem that the power to suspend an employee prior to termination is encompassed therein. Unlike my dissenting brethren, see post at 195 n. 6, I do not equate the absence of a requirement that the discharge of an at-will governmental employee be predicated upon just cause with an affirmative holding that such an employee may be discharged “for any reason.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754870. Public record. Not legal advice.