                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-5091-15T1

KEVIN HARVARD,

     Plaintiff-Appellant.
                                        APPROVED FOR PUBLICATION
v.
                                            August 12, 2019
STATE OF NEW JERSEY,                       APPELLATE DIVISION
JUDICIARY, ATLANTIC-
CAPE MAY VICINAGE,

     Defendant-Respondent.
—————————————————————————————————

         Argued November 14, 2017 – Decided January 29, 2018

         Before Judges Hoffman, Gilson and Mayer.

         On appeal from Superior Court of New Jersey,
         Law Division, Cumberland County, Docket No.
         L-0850-13.

         Frank L. Corrado argued the cause for
         appellant (Barry, Corrado & Grassi, PC,
         attorneys; Frank L. Corrado, on the briefs).

         Kimberly A. Eaton, Deputy Attorney General,
         argued the cause for respondent (Christopher
         S. Porrino, Attorney General, attorney;
         Melissa H. Raksa, Assistant Attorney General,
         of counsel; Gregory J. Sullivan, Deputy
         Attorney General, on the brief).

     The opinion of the court was delivered by

HOFFMAN, J.A.D.
      In 2000, the Assignment Judge for the Atlantic-Cape May

Vicinage (the Vicinage) appointed plaintiff Kevin Harvard as a

Special Civil Part Officer (SCPO).               In 2010, the Vicinage began

investigating plaintiff's financial records and eventually found

over a dozen violations of various directives of the Administrative

Office of the Courts (AOC).                 As a result, in July 2012, the

Assignment      Judge    for    the        Vicinage     terminated      plaintiff's

appointment in accordance with AOC Directive # 2-07, which states

a   SCPO's    "appointment     may    be    terminated     at   any    time    in   the

discretion of the Assignment Judge."

      One year later, in July 2013, plaintiff filed a complaint in

the Law Division alleging violations of the Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, the New Jersey

Civil   Rights     Act    (CRA),      N.J.S.A.        10:6-1    to    -2,     and   his

constitutional substantive and procedural due process rights.

After the parties completed discovery, the Vicinage successfully

moved   for    summary    judgment,         resulting    in     the   dismissal       of

plaintiff's complaint with prejudice.                 Plaintiff then filed this

appeal, seeking reversal of the June 29, 2016 order granting

summary judgment.        For the following reasons, we affirm.

      We review an order granting summary judgment de novo, applying

the same standard used by the trial court, L.A. v. N.J. Div. of

Youth & Family Servs., 217 N.J. 311, 323 (2014), which requires

                                            2                                  A-5091-15T1
denial of summary judgment if "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."   Townsend v. Pierre, 221 N.J. 36, 59 (2015) (quoting Davis

v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)); see also

R. 4:46-2(c).    Similarly, our review of legal issues is de novo.

Waskevich v. Herold Law, P.A., 431 N.J. Super. 293, 297 (App. Div.

2013).

     Viewed most favorably to plaintiff, the summary judgment

record    established   the   following   relevant   facts.   In     2000,

following his appointment as a SCPO, plaintiff established an

office in his home.     Around 2004, plaintiff hired three employees

to help run his office; the Vicinage was not involved in his

decision to hire these employees.

     In its written opinion, the trial court succinctly described

the relationship between SCPOs and their respective vicinages:

                 Judiciary Human Resources is not involved
            in the recruitment or employment process for
            SCPOs. Instead, the appointment of SCPOs is
            by court order signed by the Assignment Judge.
            The court order expressly states "that this
            appointment may be discontinued at the
            discretion of the court."         The consent
            paragraph of the appointment order expressly
            states that "I understand that a [SCPO] is not
            an employee of the New Jersey Judiciary."


                                    3                              A-5091-15T1
               SCPOs are categorized as independent
          contractors under AOC directives, considered
          to be independent contractors by Judiciary
          Human Resources, and their legal status is
          that of an independent contractor for tax and
          labor law purposes. SCPOs are not paid a
          salary. They are compensated by commissions
          and fees set by statute. They do not receive
          any of the perquisites and emoluments enjoyed
          by judiciary employees.   By way of example,
          SCPOs are not members of the Public Employee
          Retirement System ("PERS"), are not eligible
          for pension benefits, do not receive health
          or life insurance coverage benefits, and are
          not subject to minimum       wage and hour
          requirements. SCPOs do not receive any paid
          vacation or sick leave.   The judiciary does
          not make any employer-based social security
          contributions on behalf of SCPOs.       SCPOs
          receive a Form 1099, not a W-2 form . . . .

               SCPOs are purely at-will appointees that
          serve at the pleasure of the [V]icinage
          Assignment Judge. They are not appointed for
          a statutory term of office or a defined
          contractual period, and have no tenure rights
          or civil service rights.      SCPOs are not
          appointed annually or for any other time
          period.   They serve until their appointment
          is discontinued.

               SCPOs work independently, at their own
          pace, and provide their own equipment,
          offices, vehicles and insurance.   SCPOs can
          hire their own employees without vicinage
          approval unless the employee would assist in
          serving process.   Bank accounts utilized by
          SCPOs are in their name, not in the name of
          the judiciary.

     SCPOs   serve    various       court   documents,    including

landlord/tenant summonses, complaints, and warrants of removal,

for which they receive statutory fees. SCPOs also conduct physical

                                4                           A-5091-15T1
lock-outs of tenants under warrants of removal, for which they

receive direct payment from the landlords.              They also serve wage

executions on employers, levies on banks, and related turnover

orders, for which they receive statutory commissions.

     SCPOs must designate an accountant to audit their financial

records on an annual basis.           AOC Directive # 4-03.             The Trial

Court Administrator and Vicinage Finance Manager must review and

approve this designation.          Ibid.     "Annually, at the end of the

State fiscal year (July 1 - June 30), but before November 1,"

SCPOs   must   escheat    any    unclaimed    checks    to   the    State.      AOC

Directive # 3-03.

     Plaintiff    designated       Robin     Shields,   CPA,       to   audit   his

financial records.       From 2006 through 2009, Shields annually noted

that plaintiff "has outstanding checks on his books that should

be written off his books as uncleared (not presented for payment),

the amounts and details of which are to be available for ten years

from the date written.          The matching funds should be paid to the

State for escheatment."          In 2007, the Trial Court Administrator

reviewed Shields' audit report and informed plaintiff he should

have escheated the uncleared checks noted in Shields' 2006 audit.

     Shields' 2010 report stated plaintiff was depositing funds

"four to six weeks after they appear[ed] on the cash receipts

journal.   This is not in accordance with the regulations."                     AOC

                                       5                                   A-5091-15T1
Directive # 4-03 required weekly deposits.              In an addendum report,

Shields again noted that plaintiff failed to escheat many unclaimed

checks "as required."

     On December 13, 2010, plaintiff sent the Vicinage a letter

in response to Shields' 2010 report.                   He wrote, "The date I

assign[ed] to the posted funds is a reference identifier that my

system uses to sort and reference the posted funds.                 That date has

little bearing on the calendar date the funds are presented at the

bank."    He assured the Vicinage that "[a]ll funds are deposited

weekly as required by the rules regarding same.                  I have used this

procedure successfully and without incident for the past eleven

years and eleven months."

     At the same time Shields sent her report to the Vicinage, she

sent another copy to the AOC's Internal Audit Unit (IAU).                     After

reviewing the report, the IAU began an investigation to assess

plaintiff's compliance with AOC directives.                 The IAU initially

found    five    problems    with   plaintiff's       financial    practices:    1)

plaintiff was depositing funds more than a week after they appeared

in his cash receipts journal;              2) plaintiff's records stated he

collected       $125,600    in   June,    but   he   deposited    $127,000;      3)

plaintiff       was   not   annually     escheating    unclaimed    checks;      4)

plaintiff was not disbursing his funds on a monthly basis, as



                                           6                              A-5091-15T1
required under AOC Directive # 4-031; and 5) plaintiff had $134,000

in outstanding checks but $130,000 in the checking account.                    At

some point after receiving Shields' report, the IAU met with

Shields.     The meeting confirmed the IAU's concerns regarding

plaintiff's financial records.

     Around January 2011, the Vicinage learned the State had a tax

judgment against plaintiff for $5,904.96.            AOC Directive # 2-07,

states that a potential SCPO "must not               have any outstanding

judgments against him [or] her."           According to plaintiff, he paid

the judgment the same day he received it.

     In February 2011, the IAU met with plaintiff.                   Plaintiff

claimed    his   accounting    software     prevented   him    from    posting

multiple checks from the same person on the same day, so he

occasionally     had   to   backdate   checks   to   enter    them    into   the

software.   The IAU knew other SCPOs who used plaintiff's software

without similar problems, but plaintiff said he had not purchased

software updates, as they had done.

     The Vicinage consequently asked plaintiff for a working copy

of his software. "[U]nder protest but in an attempt to cooperate,"

plaintiff claims he "provided his computer [software] to the



1
   The IAU suspected plaintiff had numerous checks outstanding
from prior months because he was backdating them to appear to
comply with AOC directives.

                                       7                                A-5091-15T1
Vicinage for review."   By this point, however, plaintiff claims

he had already hired a programmer to fix his computer program.

When asked at his deposition whether he produced "anything to the

Vicinage indicating that" past improper postings "was due to a

glitch" in his computer, plaintiff replied, "No."

      On October 18, 2011, the IAU issued a report assessing

plaintiff's financial records, listing thirteen "issues of non-

compliance" with AOC directives.      The report included a finding

that plaintiff had failed to maintain required records of trust

fund activity and had failed to escheat funds to the State, in

violation of other directives.

     On October 20, 2011, Shields issued her 2011 report, which

supported the IAU's findings.    On December 7, 2011, plaintiff sent

the Vicinage a letter attacking Shields' 2011 report, describing

it as "full of material errors" and "overall unreliable."           He

added, "This audit report does not reflect the activities of my

financial records during the period under review."

     On July 30, 2012, the Assignment Judge notified plaintiff by

letter that his "service as a [SPCO] is discontinued."    The judge

later explained that the "key basis" for his decision was findings

contained in the October 18, 2011 letter from the IAU, and the

"lack of any additional justification" or "explanation" regarding

these findings.

                                  8                          A-5091-15T1
     In addition to asserting claims of CEPA, CRA, and due process

violations, plaintiff's complaint also alleged that the Vicinage

had acted arbitrarily and capriciously under the common law, in

depriving him of his continued appointment and his entitlement to

commissions earned.        Plaintiff alleged he "was the only African-

American     [SCPO]   in      the   [V]icinage,"     claiming    he    received

differential treatment "because of that."

     After hearing oral argument, the motion judge entered the

order under review, setting forth his reasons in a comprehensive

fifty-page    written      decision.        The   judge   addressed    each    of

plaintiff's claims in detail and explained why each claim lacked

merit.

     First,    the    judge    determined     that   plaintiff   was    not    an

"employee" for CEPA purposes.          The judge reasoned the majority of

the factors in the Pukowsky2 test weighed in favor of classifying

plaintiff as an independent contractor and not an employee because:

he was hired as an independent contractor, he did not receive a

salary or benefits, he was taxed as an independent contractor, he

controlled his own schedule and work subject only to accounting

and financial reporting requirements imposed by AOC Directives,



2
   Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div.
1998).


                                        9                               A-5091-15T1
he selected his own accountant for his annual financial report;

the SCPO position was at will serving at the pleasure of the

Assignment Judge; SCPO services were not integral to the business

of the Vicinage; and the SCPO position involved specialized skills

not possessed by Vicinage employees.

     Second, the judge concluded plaintiff did not engage in

actionable    whistle-blowing    under   CEPA.        He   reasoned     that

plaintiff's complaints to the Vicinage, and the practices of the

Vicinage and the AOC, did not concern the health, safety, or

welfare of the public and did not report a public harm.          The judge

also concluded plaintiff's complaints to the Vicinage concerned a

private disagreement over his accounting practices, commissions,

and reputation.

     Third,   the   judge   determined   that   the   Vicinage   does   not

constitute a "person" amenable to suit under the CRA.            The judge

completed an analysis using the three Fitchik3 factors.               Under

factor one, the judge found that any judgment in favor of plaintiff

would be paid out of State revenue.      The judge reasoned the second

Fitchik factor weighed in favor of classifying the Vicinage as a

State entity because the State funds, administers, and operates



3
   Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655,
659 (3d Cir. 1989) (en banc).


                                  10                               A-5091-15T1
it.     The   judge   found   that    the   third   Fitchik    factor   favored

classifying the Vicinage as an arm of the State because the

Vicinage has little to no autonomy outside of the authority the

State has granted it, and the AOC is a State entity managed by the

Chief Justice and the Acting Administrative Director.

      Fourth, the judge concluded plaintiff failed to establish due

process claims under Article I, paragraph 1 of the New Jersey

Constitution.      Regarding his substantive due process claim, the

judge   reasoned      plaintiff      had    no   entitlement    to   continued

employment, and no precedent recognized substantive due process

protection for one's good reputation.               The judge also observed

that Rule 6:12-3(b) called for another SCPO to proceed with the

execution of all writs that had been delivered to a prior SCPO who

is no longer able to act.

      Finally, the judge determined that plaintiff's allegation

that the Vicinage arbitrarily deprived him of his protected liberty

interest in continued employment free of injury to his reputation

was time-barred.      The judge reasoned that to the extent plaintiff

relied on the prerogative writ of certiorari, the forty-five day

limitation under Rule 4:69-6(a) barred his claim.

      On appeal, plaintiff presents five arguments: 1) the trial

court erroneously found that plaintiff was not a Vicinage employee

under CEPA; 2) the trial court erroneously found that plaintiff

                                       11                               A-5091-15T1
did not engage in whistle-blowing activity; 3) the Vicinage is a

person subject to suit under the CRA; 4) plaintiff has stated a

claim   that     the    Vicinage     violated    his    State    constitutional

substantive and procedural due process rights; and 5) plaintiff

has stated a timely common law claim of arbitrary treatment under

the fundamental fairness doctrine.

      We have considered each of plaintiff's arguments in light of

our review of the record and applicable principles of law. We

discern no basis to disturb the order granting summary judgment.

We therefore affirm, substantially for the reasons set forth by

the   motion    judge    in   his   thorough    and    well-reasoned     written

decision.      We add the following comments.

      Even if we were to accept plaintiff's argument that the motion

record precluded a finding that, as a matter of law, plaintiff was

not a Vicinage employee for CEPA purposes, the record clearly

demonstrates that plaintiff failed to establish a whistle-blower

claim under CEPA.       See Turner v. Associated Humane Soc'ys, Inc.,

396 N.J. Super. 582, 594 (App. Div. 2007) (holding that a complaint

that "deals with the employee's personal harm, not harm to the

public" is not viable under CEPA).            The record lacks any credible

evidence of harm to the public.

      Regarding    plaintiff's       due    process    claim,   the   Fourteenth

Amendment   to    the    United     States   Constitution       and   Article    I,

                                       12                                 A-5091-15T1
paragraph 1 of the New Jersey Constitution protects individuals

from deprivations of life, liberty, and property, without due

process of law.        See Doe v. Poritz, 142 N.J. 1, 99 (1995).                      The

essence of procedural due process is notice and an opportunity to

be heard.     See State v. Garthe, 145 N.J. 1, 8 (1996).                     There are

no bright-line rules to judge the constitutionality of a particular

procedure employed in a proceeding; "[i]t is a flexible concept

and   calls   for     such   procedural      protections         as   the    particular

situation     demands."       N.J.    Div.   of    Youth     &    Family     Servs.    v.

M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003).

      Substantive      due    process    "protects       individuals          from    the

'arbitrary exercise of the powers of government' and 'governmental

power [. . .] being used for [the] purposes of oppression.'"

Filgueiras v. Newark Pub. Schs., 426 N.J. Super. 449, 469 (App.

Div. 2012) (quoting Felicioni v. Admin. Office of the Courts, 404

N.J. Super. 382, 392 (App. Div. 2008) (alteration in original)).

Substantive     due    process,      however,     "is   reserved       for    the    most

egregious governmental abuses against liberty or property rights,

abuses that 'shock the conscience or otherwise offend . . .

judicial notions of fairness . . . [and that are] offensive to

human   dignity.'"           Ibid.    (alteration       in   original)         (quoting

Felicioni, 404 N.J. Super. at 469).               When determining the extent

of this protection, New Jersey courts must weigh the "nature of

                                        13                                      A-5091-15T1
the    affected        right,   the     extent          to    which    the    governmental

restriction      intrudes       upon    it,       and    the    public       need   for   the

restriction."          Visiting Homemaker Serv. of Hudson Cty. v. Bd. of

Chosen Freeholders, 380 N.J. Super. 596, 610 (App. Div. 2005)

(quoting Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985)).

       "[A]n employee hired at will has no protected interest in his

employment and may not prevail on a claim that his or her discharge

constituted a violation of property rights."                      Morgan v. Union Cty.

Bd. of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div.

1993).    An at-will employee's termination may, however, implicate

a     liberty    interest       when        the    termination          may     result      in

disqualification from future public appointment.                          Ibid.

       Depending        on   the    context,            New    Jersey's       doctrine      of

fundamental        fairness           augments           "existing           constitutional

protections" or exists "as an independent source of protection

against state action."             Doe, 142 N.J. at 108 (quoting State v.

Ramseur, 106 N.J. 123, 377 (1987) (Handler, J., dissenting)).                               It

"serves to protect citizens generally against unjust and arbitrary

governmental       action,      and     specifically            against        governmental

procedures that tend to operate arbitrarily."                         Ibid.    "Fundamental

fairness    is     a     doctrine      to    be     sparingly         applied.       It     is

appropriately applied in those rare cases where not to do so will

subject the defendant to oppression, harassment, or egregious

                                             14                                      A-5091-15T1
deprivation."     Ibid. (quoting State v. Yoskowitz, 116 N.J. 679,

712 (1989) (Garibaldi, J., concurring and dissenting)).

     In support of his claim that the Vicinage violated his

procedural due process rights by terminating his appointment,

plaintiff argues he "demonstrated a state-protected 'entitlement'

to unpaid future commissions on writs he served before he was

terminated, and he has further established that [the] Vicinage has

deprived him of that entitlement without offering him any process

whatsoever."    We disagree.

     Plaintiff overlooks Rule 6:12-3(b), which requires the court

to reassign cases to another SCPO in place of a SCPO who, "for

any . . . reason is unable to act."        R. 6:12-3(b).     The replacement

SCPOs shall "proceed with and complete the execution of all writs"

previously    delivered    to   the   replaced    officer.      Ibid.        The

replacement SCPOs are entitled to the commissions from their work,

not the replaced officer.       See N.J.S.A. 22A:2-37.2.

     Given the Vicinage's extensive investigation of plaintiff's

conduct, and the numerous chances it offered him to explain it,

the Vicinage provided plaintiff due process, and that process only

served   to    confirm    his   significant      non-compliance   with       AOC

directives.     Plaintiff's contention that he never received "an

opportunity to explain himself or rebut the charges against him"

is a bald assertion, unsupported by the record.

                                      15                                A-5091-15T1
Affirmed.




            16   A-5091-15T1
