Presented to the Municipal Excess Liability Joint Insurance Fund April 12, 2013

1. Public Entity Litigation -- Update 2013 -- Presented to the Municipal Excess Liability Joint Insurance Fund April 12, 2013 Eric L. Harrison, Esq. – Fred Semrau, Esq.

2. POL AND EPL CLAIMS:FEE-DRIVEN ■No proportionality required between amount of judgment and fee award ■ Lodestar calculation ■ Enhancement under certain statutes to reflect level of risk (i.e. “Rendine” enhancement) ■ Wide discretion for reduction – sometimes none at all, even when most claims or defendants dismissed.

3. Offers of Judgment in Federal CourtFederal Rule of Civil Procedure 68 Marek v. Chesny, 473 U.S. 1 (1985) ■ In a federal fee-shifting case where plaintiff recovers less than offer of judgment, offering defendants will not be held liable for attorney fees incurred by plaintiff after offer. ■ “It is immaterial whether the offer recites that costs are included, whether it specifies the amount the defendant is allowing for costs, or, for that matter, whether it refers to costs at all. As long as the offer does not implicitly or explicitly provide that the judgment not include costs, a timely offer will be valid.” ■ Pivotal question: Does the statute define attorney fees as “costs”? (42 U.S.C. §1988 v. ADEA) ■ Safest option: Offer a sum certain “plus all attorney fees and costs accrued to date”

4. Offers of Judgment in State CourtNJ Rule of Court 4:58-3(c) • Best v. C&M Door Controls, 200 N.J. 348 (2009) Reversed and remanded, with instructions to consider prior offer in calculating fee award: • “[I]f a judge determines, under all the circumstances, that defendant proffered a reasonable offer of judgment that plaintiff unjustifiably rejected, that is a factor to be taken into account in determining plaintiff’s entitlement to fees.” • The solution: Offer a fixed amount “plus all reasonable fees and costs incurred to date”

5. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • An employer shall not take any retaliatory action against an employee because the employee does any of the following: • a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, . . . . • c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: • (1) is in violation of a law, or a rule or regulation promulgated pursuant to law; • (2) is fraudulent or criminal; or • (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

6. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • What is a “clear mandate of public policy”? • Attorney General Guidelines? • Terms of a Collective Bargaining Agreement? • Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188 (1998): a “salutary limiting principle [of CEPA] is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee” • So . . . Whistleblowing motivated purely by self-interest is non-actionable, right?

7. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • Maimone v. City of Atlantic City, 188 N.J. 221 (2006): Summary judgment precluded by fact question as to whether officer had reasonable belief that chief's policy decision on allocation of police resources was incompatible with a clear mandate of public policy precluded summary judgment. • Hernandez v. Montville Board of Education, 354 N.J.Super. 467 (App. Div. 2002): Custodian’s complaint to principal of overflowing toilets and malfunctioning light in exit sign sufficient to sustain jury verdict for plaintiff. • Everyone’s a whistleblower!

8. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • A possible common sense limitation: No right to sue when the “whistleblowing” falls within job requirements • White v. Starbucks, A-3153-09: District manager responsible for “ensuring that employees adhere to legal and operational compliance requirements.” • Store managers complained of disrespect, customer complaints • She reported suspected theft, unsanitary conditions, “after hours sex parties” • Trial court dismissed because “the issues on which she bases her claim fall within the sphere of her job-related duties”; Appellate Division affirmed

9. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • Hitesman v. Bridgeway Inc. (March 2013) • A licensed or certified health-care professional may assert a claim against his or her employer pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, based on a reasonable belief that the employer’s conduct “constitutes improper quality of patient care[.]” N.J.S.A. 34:19-3a(1) and c(1). • The statutory definition of “improper quality of patient care” includes the violation of “any professional code of ethics.” N.J.S.A. 34:19-2(f). • In this appeal, we consider whether plaintiff’s proof, and specifically his reliance on a professional code of ethics not applicable to his employer, was sufficient to support a liability verdict in his favor. • We conclude that, as a matter of law, plaintiff failed to prove the first element of his CEPA claim.

10. Conscientious Employee Protection Act (CEPA), N.J.S.A. § 34:19-3 • Houston v. Randolph Township (U.S.D.C., Summary Judgment Granted March 2013) • Plaintiff volunteer firefighter resigned from Rapid Intervention Crew training position in protest over deployments, citing NFPA model code • Chief suspended him from all training for insubordination • Case dismissed on summary judgment because plaintiff could not cite a law, regulation or clear mandate of public policy which he reasonably believed was violated

11. First Amendment Speech on Matters of Public Concern • Garcetti v. Ceballos, 126 S.Ct. 1951 (2006): • Deputy district attorney wrote a disposition memo recommending dismissal of charges because of inaccuracy of memo seeking warrant • Transferred, denied a promotion • Speech pursuant to official duties is not protected • … Just as “whistleblowing” pursuant to official duties should not be protected under CEPA

12. Political Retaliation • Montone v. City of Jersey City, Third Cir. (March 2013) • Sergeants in the Jersey City Police Department all of whom ranked within the top eleven slots on the 2003-2006 promotion list, filed this action alleging that Jersey City failed to promote them to lieutenant in retaliation for exercise of First Amendment • During Troy's tenure as police chief, no promotions were made to lieutenant in retaliation for Montone's active support of Healy's opponent in a mayoral election. • The District Court misapplied the summary judgment standard, improperly dismissed evidence of a culture of political patronage, and erred in giving substantial weight to evidence of the promotion of one Manzo supporter; and erred in concluding that Montone's gender discrimination complaints did not involve matters of public concern. • Asriab plaintiffs have standing to bring an action for First Amendment political affiliation retaliation even though the retaliation was directed towards Montone and that the District Court erred in granting summary judgment for defendants on the Astriab plaintiffs' claim because there is a genuine issue of material fact as to whether Montone's political conduct was a motivating factor in defendants' decision not to promote the Astriab plaintiffs.

13. Political Retaliation • Vaticano v. Edison, Third Circuit (Feb. 2013) • Deputy Chief could not demonstrate political retaliation in non-promotion to Chief or assignment to tasks he considered demeaning • Plaintiff could not demonstrate that his non-promotion or job assignments constituted retaliation for protected involvement in prior litigation of another officer

14. Law Against Discrimination • Lasky v. Borough of Hightstown, 426 N.J. Super. 68, 43 A.3d 445 (App. Div. 2012) • In public accommodation claims, different standards apply to claims of specific accessibility barriers v. general program access barriers • It is entirely reasonable and consistent with the spirit, if not letter, of the Division's implementing regulations, to require qualified persons with a disability requesting a reasonable accommodation to apprise the public entity of his or her disabling condition and any suggestions for such possible public accommodations. • On the other hand, where a more generalized claim alleging overall lack of access is made, a plaintiff seeking redress should not be required, as a prerequisite to filing such a claim, to first make a request for a reasonable accommodation.

15. Law Against Discrimination • Lasky v. Moorestown, 425 N.J.Super. 530 (App.Div. 2012) • Plaintiff … contends that once he proposes methods of making the park readily accessible, the burden shifts to defendant to prove they are not achievable without undue financial and administrative burdens. We disagree and therefore find no error in omitting such a notion from the court's jury instructions. • While it seems only reasonable for the proponent of the affirmative defense to prove the existence of undue financial or administrative burdens, where the defense is simply that a reasonable alternative means of access exists, the burden of proof does not shift. • Because defendant claimed it would have employed an alternative effective means of access had plaintiff requested it, the court was not obligated to instruct that it was defendant's burden to prove that plaintiff's proposed methods of making the park readily accessible were not achievable and would cause undue financial and administrative burdens.

16. Dual Administrative Charges and Lawsuits • Winters v. North Hudson Regional Fire and Rescue (N.J. Supreme Court, September 2012) • Years of employee disputes • 2005 disciplinary charges for submitting false report, making false claims • 2009 demotion, 60 day suspension • Following injury in 2006, plaintiff continued to criticize NJRFR and appeared on TV show examining the department • Investigation revealed violation of sick time policy • Termination in 2007, appealed to Civil Service commission • Retaliation asserted as a defense; termination upheld • Retaliation lawsuit under CEPA, LAD and Civil Rights Act barred.

17. Workers CompensationRetaliation • Stancil v. ACE USA(N.J. Supreme Court, August 2012) • In this matter, we are asked to create a common law cause of action that would permit an injured employee, who is separately entitled to receive workers' compensation benefits, to sue his employer's compensation carrier directly for pain and suffering when it results from the carrier's delay in payment for medical treatment, prescriptions, or related services. We decline this invitation to create a new cause of action for three essential reasons. • Our statutory workers' compensation system has stood as a model of a fair and efficient mechanism for compensation of injured workers for nearly a century. To the extent that it has in recent years been criticized for shortcomings, including the existence of recalcitrant carriers, our Legislature has responded swiftly and decisively. For all of these reasons, we decline the invitation to create a common law remedy.

18. Litigation Immunity • Murray v. Plainfield Rescue Squad (NJ Supreme Court, July 2012) • In this wrongful-death/survival action, the Plainfield Rescue Squad is alleged to have unreasonably — and therefore negligently — delayed the transport of a gunshot victim to a nearby hospital, thereby causing his death. The individual members of the Rescue Squad are not the subject of the civil suit. • We now reverse the dismissal of the wrongful-death/survival claims against the Rescue Squad. Although N.J.S.A. 26:2K-29 states that the "officers and members" of a rescue squad shall not be liable for civil damages in rendering "intermediate life support services in good faith" to a patient, the statute provides no similar immunity to a rescue squad as an entity. A plain-language reading of N.J.S.A. 26:2K-29 leads to the conclusion that on the summary-judgment record before us, the Plainfield Rescue Squad is subject to a civil suit for negligence. • January 2013: Bill A-3282 Passes Assembly Health Committee with Bipartisan Support • Clarifies that first aid, ambulance or rescue squads, as entities, have immunity from civil damages in certain circumstances

19. Litigation Immunity • Wilson v. Jersey City (NJ Supreme Court, 2012) • In this appeal, we must determine whether 9-1-1 operators, along with their public-entity employers, are statutorily immune from civil liability for the negligent mishandling of emergency calls. The paramount issue before us is the scope of the 9-1-1 immunity statute, N.J.S.A. 52:17C-10. • In light of the language of N.J.S.A. 52:17C-10, its legislative history, and the overall objectives of the statutory scheme, we conclude that the enactment confers immunity on the 9-1-1 operators and public entity in this case for any negligence in the "delivery" of 9-1-1 services, including the mishandling of emergency calls. • Although we reverse on this issue, we nevertheless remand to the Appellate Division to address an issue it left undecided: whether the conduct of the 9-1-1 operators constituted wanton and willful disregard for the safety of persons, conduct that would deny defendants protection under the 9-1-1 immunity statute.

20. Litigation Immunity • Polzo v. County of Essex (NJ Supreme Court 2012) • We must determine whether a county can be held liable for a fatal accident that occurred when a person lost control of her bicycle while riding across a two-foot wide, one-and-one-half inch depression on the shoulder of a county roadway. • We now hold that the Appellate Division erred in suggesting that public entities may have to employ the equivalent of roving pothole patrols to fulfill their duty of care in maintaining roadways free of dangerous defects. • In this case, just five weeks before the accident, while filling some potholes, the County surveyed the entire length of the subject roadway. Even when viewed in the light most favorable to plaintiff, we cannot conclude that the County was on constructive notice of a "dangerous condition" on the shoulder of its roadway that "created a reasonably foreseeable risk" of death, or that the County's failure to correct this depression before the tragic accident was "palpably unreasonable." See N.J.S.A. 59:4-2

21. Litigation Immunity • Henebema v. South Jersey Transportation Authority (App. Div. March 2013) • Pedestrian hit by a car on A.C. Expressway after calling 911 for assistance, squad cars not deployed promptly • The parties contested the predicate facts relevant to determining whether defendants either exercised discretionary decision-making or performed ministerial acts in connection with dispatch procedures. That distinction is central to applying the correct standard of liability under N.J.S.A. 59:2-3(d) (requiring proof that a public entity’s discretionary decisions were “palpably unreasonable”). The question is whether a judge or jury should resolve that threshold dispute. • When the evidence establishes a genuine issue of material fact regarding whether a public entity’s alleged failures were the result of discretionary decision-making as to how to use its resources, or instead involved ministerial acts mandated by law or practice, then that fact issue must be submitted to the jury. • Damages determination undisturbed, remand for liability trial

22. Open Public Records Act • O’Boyle v. Longport (App. Div. 2012) • Litigation-related documents between defense counsel and defendants, other attorneys were not public records • Application of attorney-client, work product privileges under common interest rule • Under common law right of access, no particularized interest to overcome privilege

23. Open Public Records Act • Burke v. Brandes (App. Div. 2012) • OPRA Request to Governor’s office for “government records in its possession or control regarding ‘EZ Pass benefits afforded to retirees of the Port Authority, including all... correspondence between the Office of the Governor ... and the Port Authority...’" • Because plaintiff described the records sought with the requisite specificity and narrowed the scope of the inquiry to a discrete and limited subject matter, we conclude his request was neither vague nor overbroad. • The request sought the records themselves, not data, information or statistics to be extracted, gleaned or otherwise derived therefrom. Involving no research or analysis, but only a search for, and production of, what proved to be readily identifiable records, plaintiff's properly circumscribed and tailored request was wrongly invalidated as overbroad.

24. Open Public Records Act • Sussex Commons Associates v. Rutgers (Supreme Ct. 2012) • Developer that was planning to build an outlet mall brought action under OPRA to obtain documents from a public law school clinic that represented a private group opposing the plan. • Supreme Court held that records related to cases at public law school clinics are not subject to OPRA. • The Court held that while Rutgers University falls under OPRA’s broad definition of ‘public agency’, clinical legal programs do not perform any government functions and case-related records do not shed light on the operation of government or expose misconduct or wasteful government spending. • Common-law right of access does not extend to records of a legal clinic at a public law school.

25. Open Public Records Act • Valley Hospital v. New Jersey Dep’t of Health and Senior Services (App. Div. 2012) • Government Records Council denied Valley Hospital’s OPRA request to obtain a draft report prepared by staff within the New Jersey Department of Health concerning Hackensack University Medical Center’s (HUMC) application for a certificate of need seeking transfer of a closed hospital’s license to HUMC and permission to reopen hospital. • While OPRA’s definition of a ‘government record’ is broad, it specifically excludes inter-agency or intra-agency advisory, consultative or deliberate material. This exemption has been construed to encompass the deliberative process privilege, which has its roots in the common law. • Deliberative process privilege has allowed the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which its decisions and policies are formulated. • Draft report was fully protected as deliberate material. As to the common law, Valley Hospital did not overcome strong public policy attached to deliberative materials, especially internal advice to a government decision-maker.

26. Open Public Records Act • Wolosky v. Township of Sparta (App. Div. 2012) • Mr. Wolosky submitted an OPRA request seeking copies of minutes of the Township Council’s executive session meetings. The Township provided the requested materials, but made seventy one redactions to the copies. Mr. Wolosky instituted legal proceedings seeking production of non-redacted copies. • After conducting an in-camera review of the non-redacted materials, it was determined that the Township inappropriately redacted three out of seventy one items. • Pursuant to OPRA, a requestor is entitled to reasonable attorney's fees if the requestor obtains a judgment or enforceable consent decree in an OPRA proceeding, or if the litigation is the catalyst for the relief ultimately achieved. • The starting point for determining the amount of a reasonable attorney’ fee is the lodestar; i.e. the number of reasonable hours spent multiplied by a reasonable hourly rate. • When a requestor only achieves limited success in a lawsuit, the award of an attorney's fee based on the lodestar may not be reasonable. • Court reduced $5058 attorney’s fee award to $500.