Date: 05-02-2001

Case Style: Mark G. Baldassare v. State of New Jersey

Case Number: 00-5263

Judge: Scirica

Court: United States Court of Appeals for the Third Circuit

Plaintiff's Attorney: Linda B. Kennry and Nancy S. Martin of Kenney, Schaer & Martin, Red Bank, New Jersey

Defendant's Attorney: Barbara H. Parker, Office of County Counsel, Hackensack, New Jersey for Bergen County.

J. Sheldon Cohen and Peter A. Tucci of DeCotiis, Fitzpatrick, Gluck, Hayden & Cole, Teaneck, New Jersey for Office of the Prosecutor, Bergen County.

Dennis G. Harraka of Greenberg, Ferrara, Covitz, Turitz, Harraka & Goldberg, Hacksensack, New Jersey for the Board of Chosen Freeholders of Bergen County.

Description: The Bergen County Prosecutor demoted and later fired one of his investigators allegedly for his role in an investigation of fellow law enforcement officers. The principal issue on appeal is whether the investigator's dismissal violated his First Amendment rights. Holding the prosecutor's interest in an efficient workplace outweighed the investigator's interest in his speech, the District Court granted summary judgment for the prosecutor and related state entities on the First Amendment claim and declined exercising supplemental jurisdiction over his remaining state law claim.

I.

FACTS

In 1983, Mark Baldassare commenced working at the Bergen County Prosecutor's Office as an agent; in 1984 he was promoted to investigator; and in 1989 he was promoted to Lieutenant of Investigators and Director of the Computer Division.3 Over the years, Baldassare received several promotions culminating in his appointment in January 1995 as Acting Chief of Investigators by the Ber gen County Prosecutor, John Fahy.

The incident that sets the stage for this lawsuit took place in 1994 when allegations of criminal activity began to circulate within the Bergen County Pr osecutor's Office. At a disciplinary hearing of Senior Investigator Richar d Barbato, his attorney accused Deputy Chief Ed Denning and Lieutenant Mike Carlino of a "car scam"--buying previously leased county vehicles well below market price. Baldassare reported these allegations to First Executive Assistant Robert Hennessey and Prosecutor Fahy, who later instructed Baldassare to ascertain whether the cars owned by Denning and Carlino had been previously leased by the County. After determining the vehicle identification numbers matched, Prosecutor Fahy instructed Baldassare to perform an internal investigation into the allegations against Denning and Carlino. At its conclusion, Pr osecutor Fahy decided Denning and Carlino should be char ged criminally and authorized a complaint. Because of a conflict of interest, Prosecutor Fahy turned the matter over to the New Jersey Attorney General. But after investigating, the Attorney General's Criminal Division dismissed the charges for lack of evidence of criminal intent.

On February 28, 1995, Deputy Attorney General Charles Buckley questioned Baldassare about his r ole in the Denning and Carlino investigation. Buckley allegedly told Baldassare that Denning and Carlino wer e friends and that criminal charges should not have been pursued. He then allegedly asked Baldassare to name all those involved in the investigation, noting his unhappiness that "two good men's careers had been ruined."

The following day, Prosecutor Fahy resigned and Buckley became Acting Prosecutor for Bergen County. Baldassare contends it soon became clear that Buckley held him responsible for the officers' punishment, and began engaging in "rude, disrespectful and r etaliatory conduct."

Buckley subsequently demoted Baldassare two levels from Acting Chief of Investigators to Captain; transferred him to the Bergen County Police Academy; and prohibited him from further contact with the Bergen County Prosecutor's Office Computer Division which he previously managed. Baldassare also contends Buckley sear ched for evidence that would cast him in an unfavorable light. The matter came to a head, Baldassare charges, when Buckley terminated him with neither notice nor cause on October 10, 1995.

Buckley maintains that after assuming office as Acting Prosecutor, he realized Baldassar e was not qualified to serve as Acting Chief of Investigators. Buckley's defense details Baldassare's dearth of qualifications and errors, which include making false accusations, mishandling a murder and an organized crime investigation, and attempting to cover-up the improper discharge of his firearm. Moreover, Buckley insists that Baldassare was insubordinate and exhibited an unhelpful attitude. For these reasons--and not for retaliatory purposes--Buckley professes he demoted Baldassare fr om Acting Chief of Investigators to Captain and assigned him to the Police Academy in June 1995. When Baldassare purportedly failed to adjust his poor attitude and adequately per form his duties, Buckley fired him.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None