A federal Judge dismissed a complaint by a former Hackensack Board of Education attorney against the city's mayor and other school board members claiming he was defamed by them, leading to his termination following a local election.

The defendants in the case, including Hackensack Mayor John Labrosse and the school board members, moved to have plaintiff Richard Salkin's claims dismissed with prejudice, which the court granted.

U.S. District Senior Judge William J. Martini of the District of New Jersey said in a Dec. 13 opinion that the mayor's action and those of his team members did not constitute a violation of Richard Salkin's civil rights or defamation, because the defendants acted as private citizens and not as elected officials.

Salkin's Section 1983 claim was dismissed for lack of official action, and since his Civil Rights Act claim was based on the same facts, it was also dismissed. Martini also denied a motion for leave to amend the complaint.

Senior Judge William Martini of the U.S. District Court for the District of New Jersey. (Courtesy photo)

"Here, plaintiff failed to cure deficiencies by amendments previously," Martini said. "In any event, an amendment would be futile because (a) the pre-election conduct does not constitute action under color of state law and (b) the post-election conduct did not violate a clearly established right defined at the appropriate level of generality."

On Sept. 14, 2018, Salkin filed a complaint against Labrosse and Hackensack School Board members Frances Cogelja and Lance Powell, as well as opposing school board candidate Carlos Velez. Other defendants named in the suit included campaign manager Wendy Martinez and Vision Media Marketing principal Philip Swibinski.

Ryan Lockman of Mark Frost & Associates in Philadelphia represented Salkin. Lockman was not immediately available for comment. But Salkin issued a statement.

"We will proceed with a defamation case which we are confident with," Salkin said in a phone call Monday. "The judge issued an opinion and we will live with that. But we believe we have a solid defamation case."

Thomas Cafferty of Gibbons in Newark represented Labrosse. Cafferty also was not available.

Former Deputy Attorney General Benjamin H. Zieman represented school board members Cogelja, Powell and Velez. Zieman could not comment.

Patrick Metz of Dario, Albert, Metz & Eyerman in Hackensack, who represented Martinez, also could not be reached for comment, nor could R. Scott Fahrney Jr. of Kaufman, Semeraro & Leibman in Fort Lee, who represented Swibinski and Visio Media Marketing Inc.

Salkin alleged that, during a 2018 campaign for three positions on the Hackensack School Board, the defendants defamed him by making statements during their reelection campaign about his job performance and political affiliations, which he said resulted with him being let go as school board attorney.

In a June 13, 2019, opinion, the court dismissed Salkin's civil rights claims because the conduct at issue occurred while the candidate defendants were private citizens acting alone, and thus, Salkin failed to plead conduct "under color of state law." The court permitted Salkin to amend his complaint. A third amended complaint asserted three claims:

1. First Amendment retaliation and Section 1983 conspiracy against all defendants except Vision.
2. Violations of New Jersey's Civil Rights Act against the same defendants.
3. Defamation by all defendants.

The defendants filed four separate motions to dismiss, all arguing that Salkin failed to plausibly allege action under color of state law. They also claimed qualified immunity.

"The court agrees with defendants," Martini wrote. "'Mere[] private conduct, no matter how discriminatory or wrongful' does not fall within the scope of Section 1983."

Martini said Salkin's theory that "Powell, Velez, Cogelja, Martinez and Swibinski acted in concert with Mayor Labrosse, who acted under color of law" and "upon becoming board members, defendants Powell, Velez, and Cogelja refused to issue a resolution re-appointing plaintiff, thus indicating that Plaintiff would be terminated and giving him no choice but to resign" didn't hold up.

On Feb. 26, 2018, Martinez filed an Open Records Act request related to Salkin's bills "on behalf of the other individual defendants, in order to retaliate against him for his actual and/or perceived conduct and association with the school board candidates up for election," the suit claimed, per Martini.

Martini said this action was open to all citizens.

The suit also pointed to a press release from April 5 from Labrosse and the Labrosse team, which claimed that Salkin raised his own compensation as school board attorney by 50%, overbilled taxpayers thousands of dollars and was working without a contract, according to the decision, which noted that the release demanded Salkin repay the city a portion of his fees.

A subsequent campaign ad in the form of a letter laying out Salkin's alleged misdeeds was later issued, according to the decision.

"While plaintiff attributes this conduct to the mayor, that is not enough to constitute action under color of law," Martini wrote. "Nothing in the vague allegation of Labrosse's 'affiliation' and his team's public support of the candidate defendants constitutes official conduct, despite their government positions."

Martini said Labrosse, who was not up for reelection himself at the time, was not acting in the capacity of a candidate when he made public statements in a press release and campaign letter.

"These facts (and reasonable inferences drawn there from) are insufficient to constitute official conduct," Martini added. "It was 'private politicking.'"

As for Salkin's contention that the defendants' refusal to reappoint him violated his civil rights, Martini said that was not up to the court to decide because the defendants are protected by qualified immunity.

The judge said Salkin failed to point to clearly established law that prohibits the conduct at issue.

"Even if the court were to generalize the right more broadly and assume the candidate defendants' conduct was akin to affirmatively firing plaintiff, qualified immunity would still attach," Martini added.

"More importantly, it precludes a finding that reasonable board members would have known their conduct violated plaintiff's rights," he said.