Maimone v. City of Atlantic City

903 A.2d 1055, 188 N.J. 221, 24 I.E.R. Cas. (BNA) 1378, 2006 N.J. LEXIS 1136
CourtSupreme Court of New Jersey
DecidedJuly 20, 2006
StatusPublished
Cited by63 cases

This text of 903 A.2d 1055 (Maimone v. City of Atlantic City) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maimone v. City of Atlantic City, 903 A.2d 1055, 188 N.J. 221, 24 I.E.R. Cas. (BNA) 1378, 2006 N.J. LEXIS 1136 (N.J. 2006).

Opinions

Judge SKILLMAN

(temporarily assigned) delivered the opinion of the Court.

This appeal involves a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by a police officer who alleges he was transferred from detective to patrolman in retaliation for his objections to the Chief of Police’s decision to terminate enforcement of provisions of the Code of Criminal Justice prohibiting promotion of prostitution and restricting the location of sexually-oriented businesses.

I

Plaintiff Angelo Maimone has been a member of the Atlantic City Police Department since 1988. He was transferred in 1991 from a patrolman position to detective in the Special Investigations Unit. As a result, plaintiff became contractually entitled after one year to receive an additional 3% of his base salary. Beginning [226]*226in 1993, plaintiff was assigned to conduct investigations of prostitution and other sexually-related offenses, which he continued to do until early 2001.

In May 2000, defendant Arthur C. Snellbaker was appointed Chief of the Atlantic City Police Department. According to plaintiff, around eight months after Snellbaker’s appointment, Captain William Glass told him at a staff meeting that he could not initiate any new promotion of prostitution investigations unless they “directly impacted the citizens of Atlantic City.” Shortly thereafter, plaintiffs immediate supervisor, Sergeant Glenn Abrams, directed him to terminate all pending investigations into the promotion of prostitution and to conduct only narcotics investigations. Plaintiff alleges that Abrams told him that “they,” referring to prostitution investigations, “don’t exist.” Plaintiff, who at that point was the only detective still actively involved in promotion of prostitution investigations, understood this directive to apply not only to him but also to all other officers in the Special Investigations Unit.

Around the same time Abrams gave plaintiff this directive, the files plaintiff had maintained regarding persons involved in the promotion of prostitution were removed from a filing cabinet under his control, and thereafter, plaintiffs access to those files was restricted. When plaintiff complained to Abrams about his loss of access to these files, Abrams allegedly told him: ‘You’re never going to see the files again.”

On April 6, 2001, plaintiff sent a memorandum to Sergeant Abrams regarding his inability to gain access to those files, which stated in part:

Late this past year I was advised that Sgt. Coholan of the Chiefs of Police Office seized a filing cabinet from the Special Investigations Office. This filing cabinet contained numerical prostitute background files in two drawers. The other two drawers contained Escort Service/Massage Service as well as pimp intelligence files. (Many of these files contain sensitive material.)
I was advised that if I needed to see these files, the new procedure was that I was to report during the day to the Chiefs Office. I was to log in and out of a secure file room, which I complied with. I was then advised that the files were moved again and only told the lawyers had them.
[227]*227As part of my duties I routinely update files on Escort and Massage services working in Atlantic City. I noted at least seven new services operating this month alone. I have no file space for these new files nor do I have any means of cross-referencing these files against current files without access to them____
I am respectfully requesting this report be forwarded to Chief Arthur C. Snellbaker, for a response. I am requesting instructions as to if I am to continue gathering such files or am I to cease such activities.

According to plaintiff, after Abrams read this memorandum, he shook his head and said to plaintiff: “You’re asking for it.”

In 2001, Maimone also complained about Atlantic City’s failure to enforce N.J.S.A. 2C:34-7, which makes it a fourth-degree offense for a sexually-oriented business to operate within 1,000 feet of a church or school.1 After the county prosecutor decided that N.J.S.A. 2C:34-7 should be enforced by the revocation of the mercantile licenses of offenders rather than by criminal prosecution, plaintiff wrote letters to the municipal solicitor requesting the initiation of proceedings to revoke the licenses of sexually-oriented businesses that were operating in violation of this prohibition. When the city solicitor failed to take any action, plaintiff sent a memorandum to Abrams, dated May 26, 2001, which stated in part:

I am respectfully asking, that this Office request that the mercantile license of AC News and Video be revoked, due to the fact that this location is clearly in violation of 2C:34-7. This location is clearly a detriment to the neighborhood. There is a Covenant House for juveniles on the same block as well as an elementary school and Synagogue being nearby. As you are aware, it has been and continues to be [228]*228the practice of the Atlantic County Prosecutor’s Office, not to prosecute this statute. It is their contention that civil remedies (IE: Removal of Mercantile license) would be sufficient and thus relieving the Prosecutors Office from utilizing their limited resources in prosecution.
If the city chooses not to enforce this statute in this matter, all future prosecutions will be jeopardized.

Within days after he sent this memorandum, Captain Glass said to plaintiff: “You’re out of here, you’re going to patrol.” Effective June 10, 2001, plaintiff was transferred from his detective position in the Special Investigations Unit to patrol officer. Plaintiff was told that the reason for his transfer was an April 17, 2001 newspaper story that disclosed he had attended the wedding of a daughter of a suspected organized crime figure.

II

Plaintiff subsequently brought this CEPA action against Atlantic City and Chief Snellbaker.2 After the completion of discovery, defendants moved for summary judgment. The trial court reviewed the motion under the analytical framework set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462, 828 A.2d 893 (2003):

A plaintiff who brings a cause of action pursuant to N.J.S.A. 34:19-3c must demonstrate that: (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. 34:19-3c; (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.

The trial court concluded that plaintiff had presented sufficient evidence to support jury findings in his favor under the second, third and fourth tests set forth in Dzwonar. First, the court held that plaintiffs complaints to his superiors concerning their alleged policy decision not to enforce laws relating to promotion of prostitution and restrictions on the location of sexually-oriented busi[229]*229nesses was a “whistle-blowing” activity.

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903 A.2d 1055, 188 N.J. 221, 24 I.E.R. Cas. (BNA) 1378, 2006 N.J. LEXIS 1136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maimone-v-city-of-atlantic-city-nj-2006.