concurring.
We concur in the Courts affirmance of the Appellate Divisions holding that the punitive award cannot stand in this matter due to the trial courts failure to charge the jury properly on upper management. So long as punitive damages are available against public entities, we cannot say that there is a better standard than the one proposed by the Court. This case illustrates the difficulty—and perhaps the impossibility—of fashioning jury instructions *434that will allow the rational assessment of punitive damages against a public entity.
Had the issue squarely been raised, we would have been inclined to address a more fundamental question—whether Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 735 A.2d 548 (1999), erroneously interpreted the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49(LAD), to permit punitive damages to be assessed against public entities. Today, in Green v. Jersey City Board of Education, 177 N.J. 434, 445, 828 A.2d 869, 890 (2003), the Court has construed the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -9 (CEPA), to allow an award of punitive damages against a public entity. We respectfully dissented in Green. The judicial debate over the proper interpretation of the CEPA and LAD in respect of the availability of punitive damages against public entities has come to an end. If the Court has misconstrued those statutes, as we believe it has, the Legislature is not without a remedy to correct the mistake.
For modification and affirmance—Chief Justice PORTIZ, and Justices COLEMAN, LONG, VERNIERO, LaVECCHIA and ALBIN—6.
Opposed—None.