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When the New Jersey Education Association needs advice on a major legal issue affecting teachers and their rights, it turns to its general counsel, the veteran labor firm of Zazzali, Fagella & Nowak. But the 11-lawyer Newark, N.J., partnership has plenty of other clients, too, and in defense of one of them last month it made an argument that might not thrill the NJEA’s 167,000 members, particularly the ones who teach at county colleges. The firm asked Union County, N.J., Superior Court Judge William Wertheimer to dismiss a whistleblower suit by a Union County College professor on grounds that the cause of action isn’t available to teachers with tenure. Partner Robert Fagella and associate Colin Lynch argued in a brief that tenured educators are protected by their status and therefore are not the kind of at-risk employees the Legislature had in mind when it wrote the Conscientious Employee Protection Act of 1986. Under such a theory, thousands of tenured teachers would have no resort to CEPA protections, but Wertheimer wouldn’t bite. On April 27, he rejected the theory and said the plaintiff could pursue her whistleblower claim against the college and Zazzali Fagella’s client, the chairman of the plaintiff’s department. Fagella declines to discuss the matter, but his firm’s attempt seems to be an example of the ideological ambivalence arising these days as employment law firms ply their trade among clients with diverse interests. It’s a swirl of unions, management, individual employees on both sides and, occasionally, employees who are plaintiffs in one discrimination case and defendants in another. Indeed, the plaintiff’s lawyer, Linda Wong of Princeton, N.J.’s Wong Fleming, who represents plaintiffs and defendants in employment matters, says, “sometimes these things go both ways.” On a simpler level, Zazzali Fagella’s advancement of the CEPA theory appears to be the exercise of an attorney’s duty to do the best for a client even if it means taking positions that would make another client cringe. The NJEA hierarchy doesn’t seem to mind. Organization spokeswoman Karen Joseph shrugs off the firm’s position. “We are one of their clients, but not their only client,” she says. And, when asked whether the CEPA argument squared with the NJEA’s view of the statute, Joseph says the association doesn’t have an overall policy on that particular law. Not all NJEA activists are so blase. Christopher Berzinski, a field representative for the association’s southern region, recalls lobbying for the whistleblower statute when he worked for the American Association of University Professors. He says Zazzali Fagella’s argument was “clearly erroneous.” Almost three-quarters of the NJEA’S membership has tenure, and a diminution of their rights would be a concern, he says. In Lioy v. Union County College, UNN-L-108-00, tenured biology Professor Mary Jean Lioy alleges that the school and another defendant, department Chairman William Dunscombe, retaliated against her when she complained about the use of dangerous and unlawful amounts of formaldehyde in college laboratories. He diminished her power, put her at risk of losing her job and withheld wages to which she was entitled, the complaint alleges. The defense says it’s just a personality clash and that the charges are simply not true. For authority that tenured teachers aren’t covered by the whistleblower statute, N.J.S.A. 34:19, Zazzali Fagella cited Casamasino v. City of Jersey City, 304 N.J. Super. 226, a 1997 decision that says a CEPA claim by a city tax assessor was precluded. As a tenured employee under New Jersey law, the assessor was not the type of employee the Legislature intended the CEPA to protect, the appeals panel said. The issue wasn’t ruled on by the state supreme court. In Lioy’s case, Zazzali Fagella’s brief says a tenured professor at Union County College “is not the type of employee who harbored deep-rooted fear that her livelihood would be taken away if she spoke out against UCC’s activities, policies or practices.” “Her statutory tenure undercuts and bars her claim,” the brief says. Wong, who with partner Daniel Fleming represents the plaintiff, argued that while a tax assessor is protected from a city’s retaliation, there are plenty of things a school and a department chairman can do to a tenured professor beyond firing her. Wertheimer agreed. “While tenured professors are protected to an extent by their tenured status, they may still hold a genuine fear of adverse or retaliatory action by their employers so as to be afforded protection under CEPA,” the judge wrote. “Her tenure does not insulate her from other efforts to change the terms and conditions of her employment, such as transfers to other departments, being exposed to reduction in force actions, and suspension,” he continued. Wong says, “We believed all along there was no merit to the argument and the judge agreed with us.” The college’s lawyer, Victor Rotolo of Lebanon, N.J.’s Rotolo Midlige, says there are no plans to appeal Wertheimer’s ruling. He adds that he’s confident the facts will show that the school and co-defendant Dunscombe aren’t liable. As for Fagella’s legal theory — which Rotolo says he conceived even though Fagella’s firm wrote the brief — “he’s got to make that argument for that professor, he’s got a client he’s got to represent.” Employment lawyers outside the case didn’t want to comment on Zazzali Fagella, but they agreed in general that once a firm decides to undertake a representation there is obviously nothing wrong with trying to win a dismissal on a ground problematic to another client. Bennet Zurofsky, a partner at Newark, N.J.’s Reitman Parsonnet, another traditional labor firm that has branched into other fields of employment law, recalls the story about Abraham Lincoln taking one legal position for a client in the morning and the opposite view for another client in the afternoon, before the same judge. “How can you do that?” the judge asked Lincoln. “I was wrong this morning,” Lincoln replied. A crucial question though, Zurofsky suggests, is whether attorneys should agree to take the case in the first place. Zurofsky and Walter Lucas, of West Orange, N.J.’s Lucas Savits & Marose, say ideological purity in the employment field is particularly difficult because the problems go beyond divisions between plaintiffs and defendants. Firms that have traditionally represented unions are comfortable with arguments that reinforce the power of labor organizations. “But they don’t always think in terms of individual members’ rights,” Lucas says. Lucas and Zurofsky say, however, that it’s hard to imagine a union not being in favor of the whistleblower statute. Wong, the plaintiff’s lawyer in Lioy’s case, says a lot of firms like her nine-lawyer partnership work for various sides in labor cases and constantly grapple with these issues and resolve them by limiting the types of cases they will take. Some firms that have won large sexual harassment verdicts, for example, will do management work but not if it requires representation of sexual harassment defendants, she says. And firms that do both sides often enough to have broad experience, she says, “don’t waste their clients’ money by making motions that obviously have no merit.”

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