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Legal Q & A

 

Whistleblower Protection
Diversity and Library Privacy

Deborah M. Kole
League Staff Attorney


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Deborah M. Kole, League Staff Attorney

Q A member of the police department is suing the municipality under the Conscientious Employee Protection Act (CEPA). He claims that when he complained about a fellow officer who was accepting bribes, he was transferred from a position on the narcotics task force to a desk job doing routine paper work. I thought that CEPA only applies when an employee is demoted, suspended or discharged, but a colleague tells me that this standard has changed in New Jersey. Is this true?

A Recent New Jersey case law has indeed set forth a new standard for suits under CEPA, and awarded substantial damages for emotional distress based upon it. In two Appellate Division cases CEPA complaints that had been dismissed by the lower court were reinstated. These courts found that a retaliatory lateral transfer can be equivalent to a demotion under CEPA under certain circumstances.

In Guslavage v. City of Elizabeth, 2004 WL 3089743, a police officer was transferred to a basement desk job from a high profile position in narcotics after he went to the county prosecutor about a colleague who was using drugs. The Court said that moving him to the less desirable position was in essence a demotion because “the terms and conditions of employment are broader than title and salary.” Similarly, in Nardello v. Township of Voorhees, 377 N.J. Super. 428 (2005), the Court allowed the suit to go forward when the plaintiff was a police lieutenant who complained about cover-ups in his department and was then transferred from a position supervising SWAT team detectives to one supervising dispatchers and performing bathroom maintenance.

Neither of the plaintiffs in these cases lost pay or rank from the alleged retaliation. In allowing these suits, the Courts continued the broadening trend of the definition of retaliation under CEPA. Therefore, the suit you describe is likely to be viewed as a valid one to go forward under CEPA

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Q We  are a municipality with large populations of both Hispanics and African Americans. We have two fire companies, and, for whatever reason, one of them has most of the Hispanic and African American members. In furtherance of diversity, I have suggested that some of these individuals be transferred to the other fire company. However, I was told that this can get us in legal trouble. Is this advice correct?

A A federal court in New Jersey has ruled that a “race-based diversity policy,” like the one you describe, cannot be used by a municipality unless the imbalance it seeks to remedy was caused by past intentional discrimination or passive participation in third-party intentional discrimination. In Lomack v. City of Newark et al, No. 05-4126, Third Circuit, filed September 18, 2006, the Court ruled in favor of firefighters who had been transferred under such a policy. In this case, the city had been sued years before by the federal government for a pattern or practice of discrimination in the hiring and promotion of minority firefighters. That suit resulted in a consent decree that did not find unlawful discrimination, but required that affirmative action be taken to increase the number of minority firefighters.

The Court found that the decree did not mandate the policy of transferring firefighters to achieve diversity. While government has a compelling interest in remedying its own discrimination, when it is neither an active nor a passive participant in discrimination, and de facto segregation has resulted from people choosing to work near their homes, no such compelling interest exists to support such an involuntary transfer policy.

Therefore, it would seem that the policy you suggest would only be appropriate if the racial imbalance in your fire departments results from intentional or passive participation in discrimination by the municipality in the past. This is a complex issue, and you should consult with your municipal attorney before considering any action in this area

Q Is there any state law protecting the confidentiality of people who use a public library?

A N.J.S.A. 18A:73-43.2 treats any library records that contain the name or other personally identifying details regarding library users as confidential. They cannot be disclosed unless they must be for proper operation of the library, the user requests disclosure, or a court or court order requires disclosure by subpoena.

This column is for informational purposes only, and is not intended as legal advice.

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