Siss v. County of Passaic

In Siss v. County of Passaic, 75 F. Supp. 2d 325, 328 (D.N.J. 1999), aff'd, 234 F.3d 1265 (3d Cir.2000) (unpublished table decision), plaintiff was terminated from his position as Assistant County Counsel after an election transferred the political make-up of the Board of Freeholders. Plaintiff asserted several state and federal claims against the Board and other defendants. Id.at 327-28. In interpreting the controlling New Jersey case law, the court stated the following: The Appellate Division in Taylor did not expressly articulate the distinction between the circumstances before it and those in Pillsbury. See Hiering v. Township of Jackson, 248 N.J. Super. 37, 43 n. 2, 44, 589 A.2d 1373 (Law Div. 1990), aff'd, 248 N.J. Super. 9, 589 A.2d 1357 (App.Div.1991) (arguing that no real factual distinction exists and doubting that Pillsbury remains good law). In this Court's view, however, there is a meaningful distinction to be drawn based on the absence in Taylor of any statutory protection specifically for an attorney. N.J.S.A. 38:16-1 is a tenure provision of general applicability, whereas the provision at issue in Pillsbury, N.J.S.A. 40A:9-43, applies specifically to attorneys, i.e. county counsel. The Appellate Division seems to have drawn this distinction in Hiering v. Township of Jackson. . . . The Court concludes that, under New Jersey law, in the absence of a contrary statutory provision specifically applicable to attorneys, an attorney has no right to retain a position once discharged by a client under RPC 1.16(a)(3). Plaintiff can point to no statutory provision protecting his right to his position, and none specifically applicable to attorneys. Therefore, under RPC 1.16(a)(3), he had no right to retain his position when the Board of Freeholders sought to discharge him. For that reason as well, the Court determines that plaintiff had no protected property interest in maintaining his position within the meaning of the Due Process Clause. Id. at 343-44. In upholding the termination of an Assistant County Counsel, Judge Bissell found significant that County Counsel received a three-year term, whereas an Assistant County Counsel "was an at-will employee." Id. at 342.