                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2918-15T4

ANDREW FREY, ALEX BADAMO,
and RALPH EUSEBIO,

        Plaintiffs-Appellants,

and

SAMUEL TORRES,

        Plaintiff,

v.

CITY OF HOBOKEN,
LOCAL 1078 HOBOKEN FIREFIGHTERS, and
MATTHEW MARKEY, Local 1078 President,

     Defendants-Respondents.
________________________________________

              Submitted December 19, 2017 – Decided July 19, 2018

              Before Judges Carroll, Leone, and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              5045-13.

              Law Offices of Louis A. Zayas, attorneys for
              appellants (Louis A. Zayas, of counsel and on
              the briefs; Alex Lee and Cory Bonk, on the
              briefs).
            Dvorak & Associates, LLC, attorneys for
            respondent City of Hoboken (Lori A. Dvorak,
            of counsel; Kurt J. Trinter, on the brief).

            Cohen, Leder, Montalbano & Connaughton, LLC,
            attorneys for respondents Local 1078 Hoboken
            Firefighters, Matthew Markey, and Local 1078
            President (Bruce D. Leder, on the brief).

PER CURIAM

       Plaintiffs   Andrew   Frey,   Alex      Badamo,   Ralph    Eusebio,   and

Samuel Torres filed a five-count complaint in the Law Division

against defendants City of Hoboken (City), Hoboken Firefighters

Association, Local 1078 (Local), and its president Matthew Markey.

Count one alleged all defendants violated the Civil Rights Act

(CRA), N.J.S.A. 10:6-1 to -2.           The complaint alleged Markey and

the     Local   committed    tortious       interference   with    contractual

relations in count two, tortious interference with prospective

economic advantage in count three, and breach of contract in count

four.     Count five alleged Markey breached his fiduciary duty.

       Frey, Badamo, and Eusebio (plaintiffs)1 appeal from multiple

orders granting summary judgment in favor of defendants; denying

plaintiffs' motions for reconsideration; and denying their motion

to disqualify counsel representing Markey and the Local.                      We

affirm.




1
    Samuel Torres has not appealed.

                                        2                              A-2918-15T4
                                       I.

      Summary    judgment      must   be      granted    if    "the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."                   R. 4:46-

2(c). "An issue of fact is genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on

the motion, together with all legitimate inferences therefrom

favoring the non-moving party, would require submission of the

issue to the trier of fact."          Ibid.

      The court must "consider whether the competent evidential

materials presented, when viewed in the light most favorable to

the   non-moving      party,    are   sufficient    to    permit      a   rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party."       Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995).          "[T]he court must accept as true all the

evidence which supports the position of the party defending against

the   motion    and   must   accord   [that     party]   the   benefit     of   all

legitimate inferences which can be deduced therefrom[.]"                   Id. at

535 (citation omitted).

      An appellate court "review[s] the trial court's grant of

summary judgment de novo under the same standard as the trial

                                        3                                  A-2918-15T4
court."      Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,

224 N.J. 189, 199 (2016).          We must hew to that standard of review.

                                         II.

       Plaintiffs appeal Judge Francis B. Schultz's December 9, 2014

order granting the City summary judgment on count three, the only

count against the City.          That count alleged the City violated the

CRA by conspiring with Markey and the Local to deprive plaintiffs

of their constitutional rights.

                                          A.

       Regarding      the    City's     motion,   the   following    facts    are

undisputed     unless       otherwise    indicated.     Plaintiffs   have    been

employed as firefighters by the City since at least 2004.                    They

took   the    Civil   Service     test    for   promotion   to   captain.     The

resulting list issued June 10, 2009, ranked Badamo 13th, Eusebio

15th, and Frey 16th among twenty-three eligible candidates.

       In May 2011, the first twelve firefighters on the 2009 list

were promoted to captain.             After those promotions, Badamo became

1st, Eusebio 3rd, and Frey 4th on the 2009 list.

       An "Ordinance to Amend Section 59A-31" was proposed.                    It

stated that Hoboken wished to promote four firefighters to the

rank of captain in anticipation of retirements on or before April

1, 2013.      It proposed amending the Table of Organization (Table)

to temporarily raise the maximum number of captains from thirty

                                          4                             A-2918-15T4
to thirty-four, with that level to decrease back to thirty as

current captains retired.

     The proposed ordinance was placed on the agenda for the

November 28, 2012 City Council meeting.   However, on November 27,

Hoboken withdrew the proposed ordinance from the agenda.

     The following emails were proffered.       At 11:56 p.m. on

November 27, Tooke emailed Chief Blohm saying "[b]efore we can

determine to proceed we will need some additional information."

Tooke asked the Chief for a projection of savings assuming the

four firefighters promoted to captain would waive the raise in pay

until the retirement of the four captains.    About an hour later,

Blohm responded that a detailed savings projection was not possible

but that there would be savings from reduced overtime.

     Tooke's email also requested an official union position on

the proposal.   On December 3 Markey emailed Tooke "following up

with our conversation last week regarding [the Local's] position,"

and stating he would respond after a meeting on December 11 where

it would be discussed with the membership.   Within an hour, Tooke

emailed Markey "to confirm that the issue of temporarily changing

the [Table] to increase the number of [c]aptains has been tabled,

and would not be on the council agenda, until such time as the

collective bargaining units have had a chance to discuss and

consider the issue and respond."

                                5                           A-2918-15T4
     On December 12, 2012, the 2009 list was replaced by a new

list based on a new examination.2      The 2012 list ranked Markey's

brother 4th, Markey 13th, Eusebio 23rd, and Frey 28th.      Badamo was

not on the list.

     According to emails, on December 14 Markey emailed Tooke and

said the Local had discussed the proposal and was in favor of

raising the Table but wanted the raise to be permanent.                  On

December 21, Markey said the same in a letter emailed to Tooke.

     On March 19, 2013, Battalion Chief Luis Moreno announced that

the first eight candidates on the 2012 list would be promoted to

captain, including Markey's brother.        After those promotions,

Eusebio became 15th, and Frey 20th.

                                  B.

     In opposition to the City's motion for summary judgment,

plaintiffs    submitted   certifications   from   Eusebio   and     Frey.

Regarding the City, Eusebio and Frey averred that Tooke knew or

"should have known" Markey was not the proper party with whom to

discuss promotions, which were normally handled by Fire Superiors

Local 1076.    Eusebio averred Mayor Zimmer was communicating to


2
  A promotional list generally expires "three years from the date
of its establishment," N.J.S.A. 11A:4-6, but "[w]hen a promotional
list for a law enforcement or firefighter title is extended until
a new promotional list is available for certification and
appointments, the extended list shall expire when the new
promotional list is issued," N.J.A.C. 4A:4-3.3(e).

                                  6                               A-2918-15T4
Markey.   Frey also averred Tooke's communicating with Markey was

the beginning of a conspiracy to secure political support for

Mayor Zimmer in return for allowing the 2009 list to expire.

Plaintiffs did not aver any personal knowledge of such a scheme.

     The judge properly did not view this vague "conjecture and

speculation" as creating genuine issues of fact.   Under Rule 4:46-

5(a),

          When a motion for summary judgment is made and
          supported as provided in this rule, an adverse
          party may not rest upon the mere allegations
          or denials of the pleading, but must respond
          by affidavits meeting the requirements of R.
          1:6-6 . . . setting forth specific facts
          showing that there is a genuine issue for
          trial.

Rule 1:6-6 requires that affidavits be "made on personal knowledge,

setting forth only facts which are admissible in evidence to which

the affiant is competent to testify."    Thus, "[a] certification

will support the [denial] of summary judgment only if the material

facts alleged therein are based, as required by Rule 1:6-6, on

'personal knowledge.'"   Wells Fargo Bank, N.A. v. Ford, 418 N.J.

Super. 592, 599 (App. Div. 2011).     "[I]nadmissible hearsay" or

supposition "cannot be considered evidence in the summary judgment




                                7                           A-2918-15T4
record."     Chi. Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 457

(App. Div. 2009).3

      The judge found the only allegation regarding the City based

on   personal    knowledge    was    Frey's   certification      that,   at   the

November 28 City Council meeting, Tooke told him "the ordinance

was removed at the request of President Markey for the Union to

review and approve."         However, this allegation did not create a

genuine issue of fact as it was substantially consistent with the

emails and Tooke's certification.             "[W]here the party opposing

summary judgment points only to disputed issues of fact that are

'of an insubstantial nature,' the proper disposition is summary

judgment."      Brill, 142 N.J. at 529 (citation omitted).

      In any case, the alleged dispute was not material because

neither it nor any evidence proffered by plaintiffs supported a

CRA violation.      The CRA "is a means of vindicating substantive

rights and is not a source of rights itself."              Gormley v. Wood-

El, 218 N.J. 72, 98 (2014).            Similarly, "the 'gist of [a civil

conspiracy] is not the unlawful agreement, "but the underlying

wrong   which,    absent     the    conspiracy,   would   give    a   right     of




3
  Later, in their depositions, plaintiffs admitted they had no
personal knowledge whether Markey and Tooke reached any such
agreement, or whether Markey or the Local ever supported Mayor
Zimmer.

                                        8                                A-2918-15T4
action."'"    Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177-78

(2005) (citations omitted).

       Plaintiffs claimed the underlying wrong was punishment for

their political affiliation.        The grant or denial of a promotion

to a non-political position "based on political affiliation or

support are an impermissible infringement on the First Amendment

rights of public employees."        Rutan v. Republican Party, 497 U.S.

62, 75 (1990); see Lapolla v. Cty. of Union, 449 N.J. Super. 288,

300 (App. Div. 2017).

       "A   plaintiff      who   alleges    retaliation     for    political

affiliation must show: (1) he was 'employed at a public agency in

a position that does not require political affiliation'; (2) he

was 'engaged in constitutionally protected conduct'; and (3) the

conduct was 'a substantial or motivating factor in the government's

employment decision.'"       Lapolla, 449 N.J. Super. at 298 (citation

omitted).    However, plaintiffs failed to proffer any evidence to

support     the   second    or   third     prerequisites.         Plaintiffs'

certifications did not state they were engaged in protected conduct

or had a political affiliation, that their conduct or affiliation

was known to the City, or that it was a motivating factor in the

City's decision to withdraw the proposed ordinance.               See id. at

303.    Without proof of an underlying wrong, the judge "correctly



                                      9                               A-2918-15T4
dismissed the conspiracy count."        Rezem Family Assocs. v. Borough

of Millstone, 423 N.J. Super. 103, 122 (App. Div. 2011).

     Plaintiffs    also   claim   summary   judgment   was   premature    as

discovery   was   incomplete.     However,   "[a]   motion   for   summary

judgment is not premature merely because discovery has not been

completed, unless plaintiff is able to '"demonstrate with some

degree of particularity the likelihood that further discovery will

supply the missing elements of the cause of action."'"             Badiali

v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citations

omitted).

     Plaintiffs argued they wanted to depose Tooke, but failed to

show that would "produce any additional facts necessary to a proper

disposition of the motion."        DepoLink Court Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 341 (App. Div.

2013).   Plaintiffs now contend they should have been allowed to

depose Tooke and Markey before the City received summary judgment.

However, plaintiffs deposed them afterwards, and cannot point to

anything in their depositions which provided the missing evidence

of retaliation against plaintiffs based on political affiliation.

Plaintiffs have shown nothing that would "alter the outcome."

Young v. Hobart W. Grp., 385 N.J. Super. 448, 469 (App. Div. 2005).

Thus, the judge properly granted summary judgment to the City.



                                   10                              A-2918-15T4
                                  III.

     Plaintiffs next appeal Judge Schultz's December 4, 2015 order

denying reconsideration of the December 9, 2014 order granting

summary judgment to the City.4     Plaintiffs contend the depositions

of Tooke and Markey revealed numerous "incongruities."          However,

as the judge ruled, the alleged inconsistencies are "trivial" and

not material to show retaliation for political affiliation.

     On reconsideration, plaintiffs presented the certification

of Angel Alicia, who was the City's Director of Public Safety

under Mayor Zimmer until April 2011.           Alicia's certification

stated: "In my time as Director, I did not have any direct or

indirect   conversations   with   Union   President   Markey   about   any

efforts to promote fire fighters"; "the local unions would not

have been part of those conversations, but rather the Fire Chief";

"there was no requirement or legitimate purpose to request or

obtain union approval by Local 1078 in order to promote fire

fighters to captain" as "the decision to promote rests exclusively

with the City."



4
 Plaintiffs' motion was not untimely because the December 9, 2014
order "adjudicate[d] fewer than all the claims as to all the
parties" and thus was "subject to revision at any time before the
entry of final judgment in the sound discretion of the court in
the interest of justice." Lombardi v. Masso, 207 N.J. 517, 534
(2011) (quoting R. 4:42-2); see Dickson v. Selective Ins. Grp.,
Inc., 363 N.J. Super. 344, 349 n.3 (App. Div. 2003).

                                  11                             A-2918-15T4
     However, this was not just a simple promotion.             Rather, it

was a proposed ordinance to amend the Table.             Moreover, the

proposal was for only a temporary increase in the number of

captains permitted by the Table, and the City wanted the promoted

firefighters to waive the higher captain's salary, until the

existing captains retired.      As the judge noted, "[t]he proposed

ordinance clearly impacted both unions, especially if the newly

promoted   captains   would   have   captain   responsibility    but   only

firefighter salaries" and if the increase in the Table was only

temporary.   Under these unusual circumstances, Tooke's attempt to

ascertain Local 1078's position before the proposed ordinance was

submitted to the Council was not evidence of a wrongful act, even

if Alicia handled different circumstances differently in his day.

     Nonetheless, Alicia opined that "there is no purpose in

withdrawing an ordinance seeking to change the [Table] to promote

four fire fighters to allow the union to vote on it."             However,

Alicia's opinions on the purposes of defendants were inadmissible.

Alicia did not claim personal knowledge of their purposes as

required by Rule 1:6-6, his opinion was not based on his sensory

perceptions as required for a lay opinion under N.J.R.E. 701, and

he was not proffered as an expert under N.J.R.E. 702.              In any

event, his opinion "represented only his personal view," Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 401 (2014), and was thus

                                     12                            A-2918-15T4
"'insufficient to satisfy a plaintiff's burden on a motion for

summary judgment,'" Satec, Inc. v. Hanover Ins. Grp., Inc., 450

N.J.   Super.   319,   330   (App.   Div.   2017)   (citation   omitted).

"Inadmissible evidence may not be used to affect the outcome of a

summary judgment motion."      Randall v. State, 277 N.J. Super. 192,

198 (App. Div. 1994).

       Alicia also asserted that "[d]uring my time" as director, the

Table was "flexible, and promotions over the Table . . . were

allowed when necessary to meet the public safety needs in the City

of Hoboken."    However, "[t]he enabling statutes for the creation

of police departments, N.J.S.A. 40A:14-118, and fire departments,

N.J.S.A. 40A:14-7," allow the governing body to adopt ordinances

"creating a table of organization."         In re Referendum Petition to

Repeal Ordinance 04-75, 388 N.J. Super. 405, 417 (App. Div. 2006);

see N.J.S.A. 40A:14-7 ("The governing body of any municipality,

by ordinance, may create and establish a paid or part-paid fire

department and . . . appoint such members, officers and personnel

as shall be deemed necessary.").            In limiting the number of

captains to thirty in the Table, Hoboken's governing body stated:

"The staff of the Division of Fire shall not exceed the following

sworn personnel, within the budgetary constraints established by

the Council[.]"    Hoboken Code § 59A-31 (emphasis added).



                                     13                           A-2918-15T4
     "The established rules of statutory construction govern the

interpretation of a municipal ordinance."      Twp. of Pennsauken v.

Schad, 160 N.J. 156, 170 (1999).      "In analyzing legislation, 'the

words "must" and "shall" are generally mandatory.'"         State v.

Sorensen, 439 N.J. Super. 471, 488 n.6 (App. Div. 2015) (quoting

Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 391 (1959)).

Here, the governing body's use of "shall" "clearly indicates that

[it] meant [the Table] to be mandatory."     See State v. Thomas, 188

N.J. 137, 149 (2006).   Thus, § 59A-31's limit of thirty captains

was mandatory, not flexible, and "no appointment may be made to

any [fire] department position not created" by ordinance.          See

Reuter v. Borough Council, 167 N.J. 38, 43 (2001).5     Accordingly,

Alicia's opinion that the Table was flexible was an erroneous

opinion on a question of law which must be disregarded on summary

judgment.   See Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63,

73 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006).6


5
 In Reuter, our Supreme Court held the enabling statute for police
"require[s] the type and number of police positions to be created
by ordinance." 167 N.J. at 41; see Loigman v. Twp. Comm., 409
N.J. Super. 13, 22-26 (App. Div. 2009). We need not decide whether
the governing body was required to similarly specify the type and
number of fire positions, as it chose to exercise its power to do
so.
6
  Tooke testified that when    promotions have occurred despite the
limits in the Table, "it's    been a matter of days or a couple of
weeks, not several months."    In any event, Tooke too cannot change
the mandatory language of §   59A-31.

                                 14                           A-2918-15T4
      In any event, Alicia's certification provided no evidence

that Tooke's attempt to obtain union concurrence was intended to

retaliate against plaintiffs for their political affiliation.

Plaintiffs cite Alicia's observation that "[d]uring my time as

Director of Public Safety," "Mayor Zimmer was politically attacked

by   the    police   union   give[n]    her   proposal   to    layoff    police

officers," but "[t]here was no similar political opposition from

the fire fighter union."         However, Alicia's alleged observation

about the earlier threatened layoffs does not show Markey had any

political motivation to retaliate against plaintiffs regarding the

proposed Ordinance in November 2012.7

      In any event, "a trial court's reconsideration decision will

be   left   undisturbed      unless   it    represents   a    clear   abuse    of

discretion."     Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,

440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 283 (1994)).                 There was no

abuse of discretion here.




7
  Moreover, in opposing the summary judgment motion by Markey and
the Local, plaintiffs had already admitted that Markey was elected
president of the Local in May 2011, after Alicia's tenure, and
that Markey "complained about the City's plan to layoff
firefighters and sent letters and emails to the Administration in
protest," including letters to Mayor Zimmer.

                                       15                               A-2918-15T4
                                IV.

     Plaintiffs also appeal Judge Christine M. Vanek's November

2, 2015 order granting summary judgment to Markey and the Local

on every count except breach of contract, her February 5, 2016

order denying reconsideration of that order, and her February 5,

2016 order granting summary judgment to Markey and the Local on

the breach of contract count.      We affirm substantially for the

reasons set forth in Judge Vanek's written opinion dated November

4, 2015, and her written opinions dated February 5, 2016.             In

addition to our discussion above, we add the following.

     Count one, plaintiffs' CRA claim against Markey and the Local,

failed given the absence of proof that the City conspired to

violate plaintiffs' civil rights.      The CRA protects against the

deprivation of or interference with civil rights by a person or

entity "acting under color of law."      N.J.S.A. 10:6-2; see Perez

v. Zagami, LLC, 218 N.J. 202, 217 (2014).       Thus, "a private CRA

cause of action only may be pursued against persons acting under

color of law."   Perez, 218 N.J. at 204.        "[T]he CRA does not

provide a private action based on a deprivation of civil rights

irrespective of state action[.]"     Id. at 216 & n.4.   In any event,

plaintiffs also failed to proffer evidence that Markey or the

Local conspired to deprive them of civil rights based on their

political affiliation.

                                16                             A-2918-15T4
      In count two, plaintiffs could not show Markey or the Local

tortiously interfered with any contract plaintiffs might have with

the City, because plaintiffs had no contractual right to be

promoted.     "No right accrues to a candidate whose name is placed

on an eligible list.     'The only benefit inuring to such a person

is that so long as that list remains in force, no appointment can

be made except from that list.'"      In re Foglio, 207 N.J. 38, 44

(2011) (citations omitted).

      Similarly, plaintiffs did not show tortious interference with

prospective economic advantage under count three.      "A plaintiff

shows causation when there is 'proof that if there had been no

interference there was a reasonable probability that the victim

of the interference would have received the anticipated economic

benefits.'"     Printing Mart-Morristown v. Sharp Elecs. Corp., 116

N.J. 739, 759 (1989) (citation omitted).   Plaintiffs' claim relies

on the suppositions, for which they submitted no proof, that the

proposed ordinance would have passed on first reading on November

28, that it would have passed on second reading, that it would

have been signed by the Mayor, and that the City would then have

hired new captains, all before the 2009 list expired on December

11.   Moreover, the second reading must "be at least 10 days after

the first reading," N.J.S.A. 40:49-2(b), and the next scheduled

City Council meeting was December 19, 2012, after the 2009 list

                                 17                         A-2918-15T4
expired.   Plaintiffs offered no proof that the City Council would

have wanted or been able to schedule an emergency session solely

to promote them rather than other firefighters who attained a

higher score on a more recent examination.

     Under count four, plaintiffs also failed to show a breach of

contract by Markey or the Local.        "The relationship between a

member and a union is a contractual one; the union's bylaws and

constitution are the contract, and the contract is enforceable in

state court."   Sheet Metal Workers' Intern. Ass'n Local Union 22

v. Kavanagh, 443 N.J. Super. 39, 43 (App. Div. 2015).       However,

plaintiffs cannot identify a provision of the Local's constitution

or bylaws that was violated.

     To support count five charging        Markey with a breach of

fiduciary duty, plaintiffs cite the Labor-Management Relations Act

and Labor-Management Reporting and Disclosure Act (LMRDA), but

those acts do not apply where the employer is "any State or

political subdivision thereof."      29 U.S.C. §§ 152(2), 402(e).    In

any event, the LMRDA imposes a fiduciary duty on union officers

to handle union money and property "'solely for the benefit of the

organization and its members,'" not for failing to consult with

members as alleged by plaintiffs.      Dzwonar v. McDevitt, 177 N.J.

451, 468 (2003) (quoting 29 U.S.C. § 501(a)).



                                18                            A-2918-15T4
     It is undisputed Markey and the Local owe "a duty of fair

representation" to its members.              D'Arrigo v. N.J. State Bd. of

Mediation, 119 N.J. 74, 76 (1990).            "The duty requires a union 'to

serve   the    interests   of   all         members    without     hostility     or

discrimination    toward   any,    to       exercise     its     discretion    with

complete good faith and honesty, and to avoid arbitrary conduct.'"

Maher v. N.J. Transit Rail Operations, 125 N.J. 455, 476 (1991)

(quoting Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry,

494 U.S. 558, 563 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177

(1967))).     Nonetheless, the "concept of 'fair representation' is

a limited one," and the duty is breached "'only when a union's

conduct toward a member of the collective bargaining unit is

arbitrary,    discriminatory,     or    in    bad     faith.'"      Saginario    v.

Attorney General, 87 N.J. 480, 488, 494 n.7 (1981) (quoting Vaca,

386 U.S. at 190); see Maher, 125 N.J. at 478.

     "[U]nder the 'arbitrary' prong, a union's actions breach the

duty of fair representation 'only if [its conduct] can be fairly

characterized as so far outside a "wide range of reasonableness"

that it is wholly "irrational" or "arbitrary."'" Marquez v. Screen

Actors Guild, 525 U.S. 33, 45 (1998) (quoting Air Line Pilots

Ass'n v. O'Neill, 499 U.S. 65, 78 (1991)).                     It was not wholly

"irrational" for Markey to seek time for the Local to discuss, or

to oppose, a proposal that would not permanently increase the

                                       19                                 A-2918-15T4
number of captains but would do so only temporarily and with a

waiver of the salary increase.          See Air Line Pilots Ass'n, 499

U.S. at 67.    Allowing such a temporary increase with a waiver of

the salary increase would set a precedent a union may wish to

oppose.    "A union's decision to avoid [a] slippery slope is not a

fortiori a decision made in bad faith."          See Marquez, 525 U.S. at

48.

      Under the discrimination prong, "a plaintiff must 'adduce

substantial evidence of [bias] that is intentional, severe, and

unrelated to legitimate union objectives.'"           Maher, 125 N.J. at

478 (alteration in original) (quoting Amalgamated Ass'n of St.,

Elec. Ry. & Motor Coach Emps. v. Lockridge, 403 U.S. 274, 301

(1971)).      As set forth above, plaintiffs failed to show any

political bias against them, and have not alleged any other

discriminatory bias.     See Vaca, 386 U.S. at 177.         In any event,

to seek time to consider, or to oppose, the proposal was not

unrelated to legitimate union objectives.

      Moreover,   it   was   not   a    breach   of   the   duty   of   fair

representation if the result of Markey's consulting with the union

about the proposed ordinance meant any promotions would go not to

the persons ranked highly on the 2009 list, such as plaintiffs,

but to other union members who scored higher on the more recent

test.     A union does not breach the "duty of fair representation

                                   20                               A-2918-15T4
in   taking   a   good     faith   position   contrary   to   that    of   some

individuals whom it represents nor in supporting the position of

one group of employees against that of another."                  Humphrey v.

Moore, 375 U.S. 335, 349 (1964) (finding no breach where a union

president "supported one group and opposed the other" even though

he represented both).          Unions frequently face decisions that

benefit some of their members and harm other members.              "Thus, the

mere fact that a negotiated agreement results . . . in a detriment

to one group of employees does not establish a breach of duty by

the union." Belen v. Woodbridge Twp. Bd. of Educ., 142 N.J. Super.

486, 491 (App. Div. 1976).

      Thus, "on the motion for summary judgment, [plaintiffs] ha[d]

the additional burden of furnishing proof of some probative value

showing that the union acted in bad faith."              Donnelly v. United

Fruit Co., 40 N.J. 61, 96 (1963).             "There must be 'substantial

evidence   of     fraud,   deceitful    action   or   dishonest    conduct.'"

Amalgamated Ass'n, 403 U.S. at 299 (quoting Humphrey, 375 U.S. at

348).

      Plaintiffs failed to meet this high standard.                  They cite

Tooke's deposition testimony that the proposed ordinance was based

on suggestions Markey made in early fall.              If true, that shows

Markey was originally trying to arrange for captain positions for

plaintiffs to fill.        That Markey tried to submit the proposal to

                                       21                              A-2918-15T4
the membership also does not show bad faith.8          They argue Markey

wanted the proposed ordinance withdrawn on November 28 because he

knew it would benefit him and his brother, but there was no

evidence that Markey knew the new list was coming out soon or that

he or his brother scored highly on that list.

       Plaintiffs   argue   that   after   the   proposed   ordinance   was

withdrawn, Markey failed to call a union meeting to discuss the

proposed ordinance, but Frey and Eusebio certified that "[o]n

December 11, 2012, Markey scheduled a union meeting.              At this

meeting, Markey suggested to raise the [Table]."        Plaintiffs argue

that Markey was promoted to captain in March 2013, but Markey was

not among the eight firefighters who were promoted.9

       Plaintiffs also cite Frey's certification:

            When I contacted President Markey to inquire
            about why the ordinance was removed, President
            Markey initially pretended that he had no idea
            that there was an ordinance and stated that
            he did not know what I was talking about.
            Later, President Markey said that Director
            Tooke wanted to discuss it with the union
            members.




8
  To the extent plaintiffs argue that Markey should have gotten
the City to propose the ordinance earlier, "negligence does not
constitute a breach of the statutory duty of fair representation."
Brooks v. N.J. Mfrs. Ins. Co., 170 N.J. Super. 20, 35 (App. Div.
1979).
9
    By the time Tooke testified in 2015, Markey had been promoted.

                                    22                             A-2918-15T4
However, this too was not substantial evidence of fraud, deceitful

action, or dishonest conduct. Judge Vanek properly granted summary

judgment to Markey and the Local.

                                    V.

     Finally, plaintiffs appeal Judge Schultz's July 11, 2014

order denying their motion to disqualify counsel representing

Markey and the Local. The "determination of whether counsel should

be disqualified is, as an issue of law, subject to de novo plenary

appellate review."    City of Atl. City v. Trupos, 201 N.J. 447, 463

(2010).    "[A] motion for disqualification calls for us to balance

competing interests, weighing the need to maintain the highest

standards of the profession against a client's right freely to

choose his counsel."      Twenty-First Century Rail Corp. v. N.J.

Transit Corp., 210 N.J. 264, 273-74 (2012) (quoting Dewey v. R.J.

Reynolds    Tobacco   Co.,   109    N.J.   201,   218   (1988)).          As

"[d]isqualification of counsel is a harsh discretionary remedy

which must be used sparingly[,]" a party seeking disqualification

must meet a "high standard."       O Builders & Assocs., Inc. v. Yuna

Corp. of NJ, 206 N.J. 109, 130 (2011) (alterations in original)

(citation omitted).




                                   23                              A-2918-15T4
     Plaintiffs first claimed counsel had a conflict of interest

because he represented both Markey and the Local.10    However, "[a]

lawyer representing an organization may also represent any of its

directors, officers, employees, members, shareholders or other

constituents, subject to the provisions of RPC 1.7."    RPC 1.13(e).

"For purposes of this rule 'organization' includes any . . .

union[.]"   RPC 1.13(f).

     Nonetheless, plaintiffs claimed the representation of both

the Local and Markey violated RPC 1.7.    That rule provides that

absent consent "a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest," which

exists if "the representation of one client will be directly

adverse to another client," or if "there is a significant risk

that the representation of one or more clients will be materially

limited by the lawyer's responsibilities to another client [or] a

former client."   RPC 1.7(a).

     Plaintiff did not make either showing. Plaintiffs sued Markey

and the Local together, alleging in count three that they conspired

together, and alleging in counts one through four that they were

liable together. Count five alleged Markey "breached his fiduciary



10
   "Our jurisprudence has entertained disqualification motions
filed by the attorney's adversary."    Van Horn v. Van Horn, 415
N.J. Super. 398, 412 (App. Div. 2010).

                                24                           A-2918-15T4
duty to [p]laintiffs," and his duty to fairly represent plaintiffs.

Plaintiffs did not allege or show that Markey violated any duty

to the Local.

      Second, plaintiffs claimed counsel had a conflict of interest

because he represented the Local of which plaintiffs were members.

Plaintiffs assert they were represented by counsel because he

represented the Local.            However, "a lawyer employed or retained

to   represent     an    organization      represents      the   organization    as

distinct    from    its     directors,         officers,   employees,   members,

shareholders or other constituents."               RPC 1.13(a).     Thus, counsel

did not represent plaintiffs merely because he represented the

union.     See McCarthy v. John T. Henderson, Inc., 246 N.J. Super.

225, 230 (App. Div. 1991).

      Moreover, plaintiffs did not claim counsel had represented

them personally.         Counsel stated he had never represented any of

the plaintiffs, and had never met three of them.                 Plaintiffs were

unable to identify any confidential information counsel had about

them, or whether counsel had any contact with plaintiffs.                       The

judge found no evidence counsel ever had any relationship with

counsel, and that there was no conflict of interest or impropriety.

      Plaintiffs        invoke    RPC   1.9,    which   addresses   "[d]uties    to

[f]ormer [c]lients."             However, an alleged "former client should

have the initial burden of proving that by application of RPC 1.9

                                         25                               A-2918-15T4
it     previously   had   been   represented   by   the   attorney     whose

disqualification is sought."       Dewey, 109 N.J. at 222.

       Plaintiffs relied on State v. Galati, 64 N.J. 572 (1974),

concerning the Policemen's Benevolent Association (PBA).             Id. at

573.     Galati "preclude[d] a PBA attorney in the future from all

representations [of an officer being criminally prosecuted] in

which an officer from the same PBA chapter will be called to

testify."    Id. at 578.    Galati ruled the PBA had a special role:

            Representatives of law enforcement such as
            police are components of th[e] administration
            of justice. The PBA has, in the public mind,
            a quasi-official status, as the conspicuous
            spokesman for the interests of all policemen.
            Any failure of confidence in the PBA
            diminishes confidence in the police force as
            a whole, and thus in the administration of
            justice.

            [Id. at 577.]

Galati stressed that disqualification of a PBA lawyer was necessary

to avoid the appearance of impropriety.         Id. at 576-78.

       However, our Supreme Court has refused to "extend Galati to

representatives of firefighters' unions."           Flamma v. Atl. City

Fire Dep't, 118 N.J. 583, 587 (1990).          The Court emphasized that

a firefighters' local "is not an organization of law-enforcement

officials, nor does it have the 'quasi-official status' and close

relationship to the administration of justice that the PBA has."

Ibid.    "[A]bsent a special relationship between the union and the

                                    26                               A-2918-15T4
administration        of   justice,    there    is    no   significant   risk      of

detriment to public confidence in the justice system requiring the

attorney's disqualification for an 'appearance of impropriety.'"

Id. at 588.

       Moreover, "[a] sea change occurred in 2004, when the RPCs

were     amended   to      eliminate   the     'appearance      of   impropriety'

provisions from all RPCs, including RPC 1.7(c) and RPC 1.9(c)."

State v. Hudson, 443 N.J. Super. 276, 288 (App. Div. 2015).                      The

Supreme Court since held that "the 'appearance of impropriety'

standard no longer retains any continued validity in respect of

attorney discipline." In re Supreme Court Advisory Comm. on Prof'l

Ethics    Op.   No.    697,   188   N.J.     549,    568   (2006).    "The    Court

emphasized the doctrine is not a factor to be considered in

determining whether a prohibited conflict of interest exists under

RPC 1.7 . . . or 1.9 as its use 'injects an unneeded element of

confusion[.]'"        Hudson, 443 N.J. Super. at 288-89 (quoting Ethics

Op. No. 697, 188 N.J. at 562 n.5).             Accordingly, we held in Hudson

that "[t]o the extent the conclusion in Galati was based on an

appearance of impropriety analysis, it conflicts with the Court's

direction, declaring the amorphous and impractical appearance of

impropriety doctrine may not serve as a basis to disqualify counsel

because of a perceived conflict of interest."                 Id. at 289.



                                        27                                  A-2918-15T4
    Plaintiffs failed to show any prior representation, let alone

a conflict of interest.   Accordingly, the judge properly denied

plaintiffs' motion to disqualify counsel.

    Affirmed.




                              28                          A-2918-15T4
