Baldassare v. County of Bergen

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

5-2-2001

Baldassare v. County of Bergen
Precedential or Non-Precedential:

Docket 00-5263

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Filed May 2, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5263

MARK G. BALDASSARE,
Appellant

v.

THE STATE OF NEW JERSEY; COUNTY OF BERGEN;
COUNTY OF BERGEN BOARD OF CHOSEN
FREEHOLDERS; OFFICE OF THE PROSECUTOR;
CHARLES R. BUCKLEY, under color of state law,
individually and in his capacity as Acting Pr osecutor for
Bergen County; JOHN and JANE DOE 1-10, individually
in their official capacities

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 95-cv-06460
(Honorable Katharine S. Hayden)

Argued December 13, 2000

Before: SCIRICA and AMBRO, Circuit Judges,
and POLLAK, District Judge*

(Filed: May 2, 2001)

_________________________________________________________________
* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
LINDA B. KENNEY, ESQUIRE
(ARGUED)
NANCY S. MARTIN, ESQUIRE
Kenney, Schaer & Martin
The Galleria, Two Bridge Avenue
Atrium Building No. 5, Second Floor
Red Bank, New Jersey 07701

Attorneys for Appellant

BARBARA H. PARKER, ESQUIRE
Office of County Counsel
Administration Building
Court Plaza South
21 Main Street
Hackensack, New Jersey
07601-7000

Attorney for Appellee,
County of Bergen

J. SHELDON COHEN, ESQUIRE
(ARGUED)
PETER A. TUCCI, JR., ESQUIRE
DeCotiis, Fitzpatrick, Gluck, Hayden
& Cole
Glenpointe Centre West
500 Frank W. Burr Boulevard
Teaneck, New Jersey 07666

Attorneys for Appellees,
Office of the Prosecutor and
Charles R. Buckley, Acting
Prosecutor for Bergen County

DENNIS G. HARRAKA, ESQUIRE
Greenberg, Ferrara, Covitz, Turitz,
Harraka & Goldberg
505 Main Street
Hackensack, New Jersey 07601

Attorney for Appellee,
Board of Chosen Freeholders of
Bergen County

2
OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Bergen County Prosecutor demoted and later fired
one of his investigators allegedly for his r ole 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 r emaining
state law claim.1 For reasons that follow, we will reverse in
part, affirm in part, vacate in part, and r emand.2
_________________________________________________________________

1. The District Court had jurisdiction under 28 U.S.C. S 1331 and 42
U.S.C. SS 1983, 1988, and supplemental jurisdiction over the state
claims under 28 U.S.C. S 1367. We have jurisdiction under 28 U.S.C.
S 1291 because the District Court order disposed of all federal claims.

We exercise plenary review over the District Court's grant of summary
judgment. Latessa v. N.J. Racing Comm'n, 113 F.3d 1313, 1317 (3d Cir.
1997). In conducting our review, we view the r ecord in the light most
favorable to the party opposing the motion and draw all reasonable
inferences in his favor. Fogarty v. Boles, 121 F.3d 886, 887 (3d Cir.
1997); Azzaro v. County of Allegheny, 110 F.3d 968, 970 (3d Cir. 1997)
(en banc). This court must make an " `independent constitutional
judgment on the facts of the case' " as to whether the speech involved is
constitutionally protected. Connick v. Myers, 461 U.S. 138, 150 n.10
(1983) (quoting Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (opinion of
Brennan, J.)); Watters v. City of Philadelphia, 55 F.3d 886, 891 (3d Cir.
1995).

2. The District Court also held that plaintif f 's suit under New Jersey's
Conscientious Employee Protection Act waived all other related state law
claims. We will affirm.

3
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.4 Despite the Attorney
_________________________________________________________________

3. We review the facts in the light most favorable to the nonmoving party.
For this reason, we will present Baldassar e's version of the events
leading up to his dismissal.

4. In a memo on the Denning and Carlino matter , a New Jersey Deputy
Attorney General concluded:

Upon a thorough review of all available evidence in this matter,
including over 30 witness interviews, analysis offiles and

4
General's decision, Prosecutor Fahy brought administrative
charges of wrongdoing against Denning and Carlino. As a
result, both were suspended without pay. Denning chose to
retire.

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
_________________________________________________________________

documents produced by Bergen County, the BCPO and BCNTF,
ALCO, and GMAC and particularly in light of the internal
procedures existing at BCPO and BCNTF , it is respectfully
recommended that this office decline pr osecution in this matter
based upon the lack of criminal intent sufficient for a successful
prosecution.

As set forth above the theft and misconduct char ges are not
supported by the evidence. . . . It is further r ecommended that a
more appropriate remedy for the defendants' actions be to refer
this
matter for any and all administrative action that the BCPO would
deem appropriate.

Memorandum from Frank J. Brady, Jr., Deputy Attorney General,
Corruption/Antitrust Division to Terrence P. Farley, Director, and
Michael Bozza, Deputy Director, Department of Law and Public Safety for
the State of New Jersey's Division of Criminal Justice (October 24, 1994).

5
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.

II.

PROCEDURAL HISTORY

Baldassare sued Buckley, Bergen County, the Bergen
County Prosecutor's Office, the State of New Jersey and the
County of Bergen Board of Chosen Fr eeholders under 42
U.S.C. S 19835 for violating his procedural and substantive
due process rights by "fail[ing] to allow him to exercise his
freedom of speech in speaking out about various public
issues and/or in exercising his role as Captain of the
_________________________________________________________________

5. Title 42 U.S.C. S 1983 provides:

Every person who, under color of any statute, or dinance,
regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to
the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress
. . . .

42 U.S.C. S 1983.

6
County Prosecutor's Office when he investigated and
reported other officers for their violation of the law and
public policy." Baldassare also brought state law claims--
breaches of contract, violation of New Jersey's
Conscientious Employee Protection Act ("CEP A"), N.J. Stat.
Ann. SS 34:19-1 to -8, and violations of the New Jersey
Constitution.

Defendants filed motions to dismiss. The District Court
dismissed Baldassare's Fifth and Fourteenth Amendment
due process claims and his CEPA claim against the State of
New Jersey on sovereign immunity grounds. After
discovery, the District Court granted defendants' motion for
summary judgment and declined to exercise supplemental
jurisdiction over the state law CEPA violation. Baldassare
appeals the grant of summary judgment on his claims
brought under 42 U.S.C. S 1983 for violation of his First
Amendment rights, tortious violation of his state
constitutional right to freedom of speech, and tortious
interference of economic advantage.

III.

FIRST AMENDMENT

A public employee has a constitutional right to speak on
matters of public concern without fear of r etaliation. Rankin
v. McPherson, 483 U.S. 378, 383-84 (1987); Feldman v.
Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994) ("A state
cannot lawfully discharge an employee for r easons that
infringe upon that employee's constitutionally pr otected
interest in freedom of speech."). Public employers cannot
silence their employees simply because they disappr ove of
the content of their speech. Rankin, 483 U.S. at 384;
Watters, 55 F.3d at 891. While"the government's role as
employer . . . gives it a freer hand in r egulating the speech
of its employees than it has in regulating the speech of the
public at large," this hand cannot act with impunity. Waters
v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion);
Watters, 55 F.3d at 895-96.

A public employee's retaliation claim for engaging in
protected activity must be evaluated under a three-step

7
process. Green v. Phila. Hous. Auth. , 105 F.3d 882, 885 (3d
Cir. 1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.
1996). First, plaintiff must establish the activity in question
was protected. Holder v. City of Allentown , 987 F.2d 188,
194 (3d Cir. 1993). For this purpose, the speech must
involve a matter of public concern. Connick, 461 U.S. at
147; Watters, 55 F.3d at 892. Once this threshold is met,
plaintiff must demonstrate his interest in the speech
outweighs the state's countervailing interest as an employer
in promoting the efficiency of the public services it provides
through its employees. Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968) (requiring courts to strike"a balance
between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it perfor ms through its
employees"); Azzaro, 110 F.3d at 976; Green, 105 F.3d at
885. These determinations are questions of law for the
court. Waters, 511 U.S. at 668; Green, 105 F.3d at 885.

If these criteria are established, plaintif f must then show
the protected activity was a substantial or motivating factor
in the alleged retaliatory action. Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Watters, 55
F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258,
1270 (3d Cir. 1994). Lastly, the public employer can rebut
the claim by demonstrating "it would have r eached the
same decision . . . even in the absence of the pr otected
conduct." Doyle, 429 U.S. at 287; Swineford, 15 F.3d at
1270 (citing Czurlanis v. Albanese, 721 F .2d 98, 103 (3d
Cir. 1983)). The second and third stages of this analysis
present questions for the fact finder and ar e not subject to
review in this case. Green, 105 F.3d at 889 (recognizing
second and third steps in Pickering/Mt. Healthy analysis
are questions for fact finder); see also Watters, 55 F.3d at
892 n.3; Zamboni v. Stamler, 847 F.2d 73, 79 n.6, 80 (3d
Cir.) (noting whether protected activity acted as substantial
or motivating factor in discharge and whether same action
would have been taken regardless ar e questions for jury),
cert. denied, 488 U.S. 899 (1988); Johnson v. Lincoln Univ.,
776 F.2d 443, 454 (3d Cir. 1985) (holding "second and third
questions . . . should be submitted to the jury").

8
A.

MATTER OF PUBLIC C ONCERN

Our initial inquiry trains on whether Baldassar e's
conduct in the investigation qualifies as a matter of public
concern. Connick, 461 U.S. at 146; Swineford, 15 F.3d at
1270-71. "A public employee's speech involves a matter of
public concern if it can `be fairly considered as relating to
any matter of political, social or other concer n to the
community.' " Green, 105 F .3d at 885-86 (quoting Connick,
461 U.S. at 146). In this respect, we focus on the content,
form, and context of the activity in question. Connick, 461
U.S. at 147-48; Watters, 55 F .3d at 892. The content of the
speech may involve a matter of public concer n if it attempts
"to bring to light actual or potential wr ongdoing or breach
of public trust on the part of government officials." Holder,
987 F.2d at 195 (internal quotations and citation omitted);
see also Swineford, 15 F.3d at 1271 ("[S]peech disclosing
public officials' misfeasance is protected."). The District
Court ruled that Baldassare's conduct in the investigation
constituted a matter of public concern. W e agree.

In Feldman v. Phila. Hous. Auth., 43 F .3d 823 (3d Cir.
1995), we recognized the compilation and distribution of a
public auditor's report involved matters of public concern.
The plaintiff, James Feldman, worked as the director of the
Philadelphia Housing Authority's Internal Audit Department
where he was responsible for unearthing and investigating
corruption, fraud and illegality. As part of his duties,
Feldman was required to share hisfindings with the
agency's executive director and board of commissioners.
When Feldman prepared a critical r eport aimed at
improprieties in certain personnel decisions by the
executive director and chairman of the board of
commissioners, the executive director fir ed him before the
report could be circulated. Alleging he was fired in
retaliation for protected speech, Feldman brought suit
under 42 U.S.C. S 1983 and Pennsylvania's"whistleblower"
statute. We found his report satisfied the threshold
requirement because "[t]he very purpose of his auditing
reports was to ferret out and highlight any improprieties
that he found at [the Pennsylvania Housing Authority].

9
Disclosing corruption, fraud and illegality in a government
agency is a matter of significant public concer n." Feldman,
43 F.3d at 829.

It seems likely the scope of Baldassare's duties as a
general investigator was broader than Feldman's. But the
underlying issue is similar, namely, whether Baldassare's
role in an internal investigation of alleged criminal
wrongdoing by officials in the Bergen County Prosecutor's
Office implicates First Amendment protection.

Defendants contend Baldassare perfor med his internal
investigation of Officers Denning and Carlino in the normal
course of his duties as an investigator at the instruction of
Prosecutor Fahy. Because the report was pr epared as part
of Baldassare's employment, defendants ar gue it does not
satisfy the "matter of public concern" r equirement. In
support, they rely on a decision by the Court of Appeals for
the Eleventh Circuit which held statements made in a
police accident report and related deposition did not
constitute speech on a matter of public concer n. Morris v.
Crow, 142 F.3d 1379 (11th Cir . 1998). Analyzing police
reports in relation to matters of public concern, the Court
of Appeals for the Eleventh Circuit stated:

Police reports reflect information of general public
interest and any information concer ning police conduct
and public safety could be considered to r each matters
of public interest. The fact that such infor mation may
be of general interest to the public, however , does not
alone make it of "public concern" for First Amendment
purposes.

Morris, 142 F.3d at 1381.

We believe the comparison is inapt. In Morris, the court
found the officer's report of a car accident and subsequent
testimony did not constitute a public matter because the
expression did not evince an attempt "to bring to light
actual or potential wrongdoing or breach of public trust on
the part of government officials." Morris, 142 F.3d at 1382
(citation and quotation omitted). Moreover , the court noted
that the officer's professional duties r equired him to provide
the information. It is undisputed that Baldassare was also
required to perform his investigation. But even under the

10
Morris rationale, Baldassare's investigation would still
constitute a matter of public concern because it attempted
to expose " `specific wrongs and abuses within the county
government.' " Morris, 142 F.3d at 1382 (quoting Warnockv.
Pecos County, 116 F.3d 776, 780 (5th Cir . 1997)). Our
jurisprudence makes clear that an internal investigation
into the alleged criminal actions of public employees "falls
squarely within the core public speech delineated in
Connick." Swineford, 15 F .3d at 1271 (internal quotations
and citation omitted); but see Gonzalez v. City of Chicago,
239 F.3d 939, 942 (7th Cir. 2001) ("Speech which is made
in all respects as part of the employee's job duties is
generally not the protected expression of the public
employee.").

Defendants also stress the internal natur e of the
investigation counsels against finding Baldassar e's conduct
involves a public matter. But the inter nal character of the
investigation is not necessarily significant, because our
inquiry focuses on the nature of the infor mation, not its
audience. We have recognized that

the community's interest in the free exchange of
information and ideas relating to matters of public
concern is not limited to public declarations. That
interest is implicated in [internal] exchanges . . . as
well as in exchanges between an individual and
members of the public. [Internal] dissemination of
information and ideas can be as important to effective
self-governance as public speeches. Thus, if the
content and circumstances of a[n] [internal]
communication are such that the message conveyed
would be relevant to the process of self-governance if
disseminated to the community, that communication is
public concern speech, even though it occurr ed in a
private context.

Azzaro, 110 F.3d at 977-78 (citing Connick, 461 U.S. at
146, 148); see also Rankin, 483 U.S. at 387 n.11 ("The
private nature of the statement does not . . . vitiate the
status of the statement as addressing a matter of public
concern.") (citing Givhan v. W. Line Consol. Sch. Dist., 439
U.S. 410, 414-16 (1979)). It appears, therefor e, we have
declined to distinguish between a public employee's

11
expression "as an employee" and a public employee's
expression "as a citizen." Azzar o, 110 F.3d at 979. Instead,
we concentrate on the value of the speech itself.

In Connick v. Myers, 461 U.S. 138 (1983), an assistant
district attorney circulated a questionnaire in her office "to
gather ammunition for another round of contr oversy with
her superiors" in an effort to oppose a transfer. 461 U.S. at
148. Despite her personal motivation to derail her transfer,
the questionnaire satisfied this threshold requirement
because one question addressing pressur e to work in
political campaigns raised a matter of public concer n.
Likewise, Baldassare's motive for perfor ming the
investigation is immaterial.

Baldassare's investigation sought " `to bring to light
actual or potential wrongdoing or breach of public trust' "
by the officers he investigated. Holder, 987 F.2d at 195
(quoting Connick, 461 U.S. at 148). "Needless to say,
allegations of corrupt practices by government officials are
of the utmost public concern." O'Donnell v. Yanchulis, 875
F.2d 1059, 1061 (3d Cir. 1989). For these reasons, we hold
Baldassare's conduct and expression in the internal
investigation of employees at the Bergen County
Prosecutor's Office constituted a matter of public concern.

B.

BALANCING OF INTERESTS

We next turn to whether Baldassar e's free speech interest
in his investigation is outweighed by any injury his conduct
could cause the interests of the prosecutor as a public
employer. Pickering, 391 U.S. at 568; Green, 105 F.3d at
887. In striking this balance, the public's inter est in the
expression may be significant. O'Donnell , 875 F.2d at 1061.
The public employer, furthermor e, bears the burden of
justifying the discharge, which " `varies depending upon the
nature of the employee's expression.' " Watters, 55 F.3d at
895 (quoting Connick, 461 U.S. at 150). Above all, no single
factor involved in this balancing is dispositive; they are all
" `weights on the scales.' " Zamboni, 847 F.2d at 79 (quoting
Czurlanis, 721 F.2d at 107).

12
On the employee's side of this balance, the public's
interest in exposing potential wrongdoing by public
employees is especially powerful. We have made clear that
"[s]peech involving government impr opriety occupies the
highest rung of First Amendment protection. Mor eover, the
public's substantial interest in unearthing governmental
improprieties requires courts to foster legitimate
whistleblowing." Swineford, 15 F .3d at 1274; see also
Feldman, 43 F.3d at 829 ("The inter ests of [the auditor], as
well as the public, in exposing governmental wrongdoing
. . . [are] very strong."); O'Donnell, 875 F.2d at 1062 ("The
public has a significant interest in encouraging legitimate
whistleblowing . . . .").

Defendants suggest that Baldassare's conduct utterly
destroyed "a needed close working relationship" with the
chief prosecutor. Czurlanis, 721 F.2d at 106; see also
Sprague v. Fitzpatrick, 546 F.2d 560, 565 (3d Cir. 1976),
cert. denied, 431 U.S. 937 (1977). Because the r elationship
between prosecutor and investigator demands trust and
confidence, they argue, its wholesale disruption deprives
Baldassare's expression of constitutional protection. With
respect to the employer, we must consider "whether the
[expression] impairs discipline by superiors or harmony
among co-workers, has a detrimental impact on close
working relationships for which personal loyalty and
confidence are necessary, or impedes the per formance of
the speaker's duties or interferes with the regular operation
of the enterprise." Rankin, 483 U.S. at 388; O'Donnell, 875
F.2d at 1061. In calibrating the significance of the
disruption, the relationship between the employer and the
employee is particularly important. Sprague, 546 F.2d at
564. Specifically, we must look to the "[p]roximity within an
organizational hierarchy [a]s a significant factor in the
employer's demonstration that a public employee's speech
had a detrimental impact on a necessarily close working
relationship." Swineford, 15 F .3d at 1272-73 (holding
county voter registrar's interest in comments regarding
electoral improprieties did not outweigh the state's interest
in efficiency when discharged); see also Zamboni, 847 F.2d
at 79 (holding court must determine "whether
[investigator's] functional role in the prosecutor's office was

13
of such proximity to [his employer] that his speech
destroyed a needed close working relationship").

In this vein, defendants argue Baldassar e was terminated
because his professional relationship with Buckley had
completely deteriorated as a result of his r ole in the
investigation. Citing Sprague v. Fitzpatrick, 546 F.2d 560,
565 (3d Cir. 1976), cert. denied, 431 U.S. 937 (1977),
defendants contend the categorical disruption of a close
working relationship effected by an employee's conduct is
unprotected as a matter of law. In Sprague , the District
Attorney of Philadelphia, F. Emmett Fitzpatrick, fired his
First Assistant, Richard Sprague, after he sharply criticized
the truth of public statements made by the District
Attorney. In a criminal prosecution, First Assistant Sprague
had been seeking a sentencing recommendation of two and
a half to five years for a convicted criminal, Joseph
Nardello. Subsequently, the District Attor ney intervened
and recommended probation at Nardello's sentencing
hearing. It was later discovered the District Attorney had
previously represented Nardello's co-defendant and his
motives for the recommendation were questioned. In several
public declarations, the District Attorney maintained his
office suggested the recommendation and/or a sentencing
agreement had been made with Nardello by the previous
District Attorney. When Sprague challenged the veracity of
these public comments in an interview published in The
Philadelphia Inquirer, he was fir ed.

In weighing the relevant interests, we found "[t]he crucial
variant in [the Pickering] balance appears to have been the
hierarchical proximity of the criticizing employee to the
person or body criticized." Sprague, 546 F.2d at 564.
Although we held Sprague's comments touched on
important issues that fell within the purview of the First
Amendment, the Pickering balance did not"tilt" in his favor
because "the effectiveness of the employment relationship
between employee-speaker and employer-tar get [was] so
completely undermined." Id. at 565.

We find the reliance on Sprague misplaced. Sprague
voluntarily criticized and publicly admonished his employer
for whom he acted as an "alter ego." W e found his actions
completely destroyed a working relationship that was

14
dependent on mutual trust and confidence.6 Baldassare's
demotion from Acting Chief Investigator to Captain and
subsequent transfer to the police academy belie a
comparison to the undoing of a "close working r elationship"
in Sprague.7 Moreover, Baldassare was directed to perform
_________________________________________________________________

6. We rested this conclusion on guidance we drew from the Supreme
Court's earlier holding in Pickering. In Pickering, the Court held a high
school teacher could not be dismissed for criticizing a school board's
handling of financial issues in a letter to a local newspaper. In its
opinion the Court presaged the questions raised in Sprague when it
recognized that Pickering's

statements [were] in no way directed towards any person with whom
[he] would normally be in contact in the course of his daily work
as
a teacher. Thus no question of maintaining either discipline by
immediate superiors or harmony among coworkers is presented
here. [Pickering's] employment relationships with the Board and, to
a somewhat lesser extent, with the superintendent ar e not the kind
of close working relationships for which it can persuasively be
claimed that personal loyalty and confidence ar e necessary to
their
proper functioning.

* * *

It is possible to conceive of some positions in public employment
in
which the need for confidentiality is so gr eat that even
completely
correct public statements might furnish a permissible ground for
dismissal. Likewise, positions in public employment in which the
relationship between superior and subor dinate is of such a
personal
and intimate nature that certain forms of public criticism of the
superior by the subordinate would seriously undermine the
effectiveness of the working relationship between them can also be
imagined.

391 U.S. at 569-70, 570 n.3.

On this basis, we found that despite the "grave public import" of
Sprague's comments, the Pickering balance leaned in the public
employer's direction because "the ef fectiveness of the employment
relationship between employee-speaker and employee-target [was] so
completely undermined." Sprague, 546 F.2d at 565. "Indeed, the public
uproar engendered by Sprague's pronouncements is precisely the factor
that so thoroughly curtailed Sprague's usefulness as Fitzpatrick's
deputy." Id.
7. Defendants also point out that under New Jersey law, investigators
serve at the pleasure of the prosecutor . N.J. Stat. Ann. S 2A:157-10
(West 2000); Cetrulo v. Byrne, 157 A.2d 297, 300-01 (N.J. 1960).

15
the investigation by his employer, Pr osecutor Fahy, and he
did not impugn the integrity of his superior . See id.; see
also Roseman v. Ind. Univ. of Pa. at Ind., 520 F .2d 1364,
1368 (3d Cir. 1975) (upholding dismissal of First
Amendment claim when speaker's expression "called into
question the integrity of the person immediately in charge
of running a department"), cert. denied, 424 U.S. 921
(1976). A similar relationship is not at issue here.

There is little doubt that Baldassare's investigation
threatened to undermine the effectiveness of the
prosecutor's office based on the "potential disruptiveness of
the speech." Waters, 511 U.S. at 680. Furthermore, there is
no doubt that Baldassare's role in the investigation
impaired his working relationship with Buckley.
Nonetheless, we have long recognized:

The First Amendment balancing test [of Pickering] can
hardly be controlled by a finding that disruption did [or
could] occur. An employee who . . . exposes . . .
corruption in her office no doubt may disrupt and
demoralize much of the office. But it would be absurd
to hold that the First Amendment generally authorizes
. . . officials to punish subordinates who blow the
whistle simply because the speech somewhat disrupted
the office . . . . The point is simply that the balancing
test articulated in Pickering is truly a balancing test,
with office disruption or breached confidences being
only weights on the scales.

O'Donnell, 875 F.2d at 1062 (quoting Czurlanis, 721 F.2d at
107 (emphasis in original)); see also Feldman , 43 F.3d at
830 ("Exposing waste, fraud, and corruption within an
agency will likely cause disruption, particularly when done
by a person whose responsibility it is to unveil such
conduct. This type of disruption however, cannot justify a
retaliatory charge."). Under this view, Baldassare cannot be
faulted in the Pickering analysis for disruption caused by
an internal investigation into fellow officers.

Therefore, we hold that Baldassare's expression in his
investigation is constitutionally protected. Because there is
a strong public interest in uncovering wr ongdoing by public
employees, his investigation involved a matter of public

16
concern. Because we find that Baldassar e's conduct
involved a matter of significant public concer n and the
state has failed to establish its interest outweighed its
employee's, we find the District Court err ed in holding the
expression was not protected by the First Amendment.
Accordingly, we will reverse and r emand this matter to the
District Court.

C.

UNRESOLVED ISSUES

There remain disputed issues as to the r easons for
Baldassare's dismissal. If the fact finder concludes that
Baldassare was discharged for his involvement in the
investigation, defendants still have an opportunity to
demonstrate they would have followed the same course of
action.8 On remand, Baldassare bears the burden of
establishing his protected conduct in his investigation of
Denning and Carlino served as a substantial or motivating
factor in his dismissal. Doyle, 429 U.S. at 287; Feldman, 43
F.3d at 829. Defendants can rebut this claim if they can
demonstrate by a preponderance of the evidence Baldassare
was terminated for other reasons. W atters, 55 F.3d at 892
(citing Doyle, 429 U.S. at 287).
_________________________________________________________________

8. The Supreme Court ensured public employers would have this
protection when it recognized:

A borderline or marginal candidate should not have the employment
question resolved against him because of constitutionally protected
conduct. But the same candidate ought not be able, by engaging in
such conduct, to prevent his employer fr om assessing his
performance record and reaching a decision . . . [to terminatehis
employment] on the basis of that recor d, simply because the
protected conduct makes the employer mor e certain of the
correctness of its decision.

Doyle, 429 U.S. at 286.

17
IV.

QUALIFIED IMMUNITY

Defendants insist they are immune under the doctrine of
qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800
(1982). The District Court mentioned this defense
approvingly in its oral decision. But it r emains unavailing.
Defendants assert that Baldassare's First Amendment
rights against retaliation were not clearly established at the
time Buckley chose to discharge him, citing Sprague, 546
F.2d 560, and Hooper v. Nacrelli , 512 F.Supp. 363 (E.D.Pa.
1981) (dismissing police chief 's complaint alleging
infringement of his First Amendment rights when mayor
demoted him). As noted, Sprague does not control the
expression at issue. Defendants' argument that
Baldassare's First Amendment rights wer e not clearly
established cannot be sustained. See, e.g., Green v. Phila.
Hous. Auth., 105 F.3d 882 (3d Cir . 1997) (holding voluntary
court appearance by police officer constituted matter of
public concern); Watters v. City of Philadelphia, 55 F.3d 886
(3d Cir. 1995) (holding police department could not dismiss
employee for criticizing departmental program in newspaper
article); Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir.
1995) (holding housing authority could not dismiss public
auditor for report detailing wrongdoing by housing
authority officials); Holder v. City of Allentown, 987 F.2d
188 (3d Cir. 1993) (holding city could not terminate city
employee for criticizing public employment r esidency
requirement in local newspaper); O'Donnell v. Yanchulis,
875 F.2d 1059 (3d Cir. 1989) (holding township could not
dismiss police chief for protected speech); Czurlanis v.
Albanese, 721 F.2d 98 (3d Cir. 1983) (holding county
unlawfully discharged county mechanic for criticizing his
department at public meetings). Some years ago, we
recognized that "as of 1982 the law was`clearly established'
that a public employee could not be demoted in r etaliation
for exercising his rights under the first amendment."
Zamboni, 847 F.2d at 80 n.7 (inter nal quotations and
citation omitted).

Our decision rests solely on the protected status of
Baldassare's conduct during his internal investigation. We

18
express no opinion as to any issue left for adjudication. In
particular, we render no opinion on Baldassare's
competency.9 Our holding is limited to whether an
investigator's internal report of alleged wrongdoing by other
officers is a matter of public concern that justifies First
Amendment protection under the Pickering balancing test.

V.

CEPA CLAIM

The District Court held that Baldassare's initiation of a
retaliation claim under New Jersey's Conscientious
Employee Protection Act ("CEPA") ef fected a waiver of his
other state law claims, which were based on identical facts.
Of these claims, Baldassare only appeals the waiver of his
claims alleging tortious violation of his state constitutional
right to freedom of speech and tortious inter ference with
economic advantage. We will affirm.

We examine the state law claims in light of the statute's
language and its interpretation by New Jersey courts. In
1986, the New Jersey legislature enacted CEP A to protect
public employees who "blow the whistle" on governmental
organizations or employees engaged in wr ongful conduct
from retaliatory action.10 Abbamont v. Piscataway Township
_________________________________________________________________

9. The question of Baldassare's competency is one for the fact finder.
Feldman, 43 F.3d at 831 (holding "[employer's] attack on [employee's]
alleged incompetence as the reason for his dismissal raised a jury
issue").

10. The category of actions provided by the statute includes:

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 or another
employer, with whom there is a business relationship, that the
employee reasonably believes is in violation of a law, or a rule or
regulation promulgated pursuant to law, or , in the case of an
employee who is a licensed or certified health car e professional,
reasonably believes constitutes improper quality of patient care;

19
Bd. of Educ., 650 A.2d 958, 964 (N.J. 1994). As part of the
statute, the state legislature included a waiver provision
that provides:

Nothing in this act shall be deemed to diminish the
rights, privileges, or remedies of any employee under
any other federal or State law or regulation or under
any collective bargaining agreement or employment
contract; except that the institution of an action in
accordance with this act shall be deemed a waiver of
the rights and remedies available under any other
contract, collective bargaining agreement, State law,
rule or regulation or under common law.

N.J. Stat. Ann. S 34:19-8.

The New Jersey Supreme Court has interpr eted the scope
of this waiver provision and concluded:

[O]nce a CEPA claim is "instituted," any rights or
claims for retaliatory discharge based on a contract of
employment; collective bargaining agreement; State
_________________________________________________________________

b. Provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any violation
of law, or a rule or regulation promulgated pursuant to law by the
employer or another employer, with whom ther e is a business
relationship, or, in the case of an employee who is a licensed or
certified health care professional, pr ovides information to, or
testifies before, any public body conducting an investigation,
hearing or inquiry into the quality of patient car e; or

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 r egulation promulgated
pursuant to law or, if the employee is a licensed or certified
health care professional, constitutes impr oper quality of patient
care;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy
concerning the public health, safety or welfar e or protection of
the environment.

N.J. Stat. Ann. S 34:19-3.

20
 law, whether its origin is in the Legislatur e, the courts,
the common law or rules of the court; or regulations or
decisions based on statutory authority, are all waived.
The waiver exception contains a list of sour ces of law
that may provide a bundle of rights protecting
employees from retaliatory dischar ge. Parallel claims
based on those rights, privileges and remedies are
waived because they represent multiple or duplicative
claims based on retaliatory discharge.

Young v. Schering Corp., 660 A.2d 1153, 1160 (N.J. 1995).

By contrast, the court found the waiver would not apply to
"those causes of action that are substantially independent
of the CEPA claim." Id. Because Baldassare's state law
claims arise from the same set of facts surr ounding his
retaliation claim, and CEPA prohibits litigating duplicative
claims, we will affirm the order dismissing his other state
law claims.

The District Court declined to exercise supplemental
jurisdiction over Baldassare's remaining CEPA claim since
the dismissal of his First Amendment claim disposed of all
federal issues.11 But given our reversal of the grant of
summary of judgment on Baldassare's retaliation claim
under the First Amendment, we will vacate the District
Court's order declining to exercise supplemental
jurisdiction over his CEPA claim. We express no opinion on
whether the District Court should exercise supplemental
jurisdiction in this matter.

VI.

CONCLUSION

For the foregoing reasons, we will r everse the judgment of
the District Court regarding the First Amendment
protection accorded the plaintiff 's investigatory conduct,
_________________________________________________________________

11. This claim alleges the defendants violated CEPA by improperly
punishing Baldassare in response to his r ole in the investigation of
Officers Denning and Carlino and the charges subsequently brought
against them.

21
vacate the court's order declining jurisdiction over his CEPA
claim, and remand for further proceedings consistent with
this opinion. We will affirm the judgment of the District
Court dismissing Baldassare's other tort claims.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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