Full opinion text
OPINION LECHNER, District Judge. This was an action brought by the plaintiff, Robert Scully (“Scully”), against defendants, the Borough of Hawthorne, the Council for the Borough of Hawthorne (the “Borough Council”), Fred Criscitelli, David A. Noble, Lois Cuecinello, John G. Lane, Joseph Metzler, Marge Shortway, Patrick Botbyl, Brian Carmen and Joseph Walilko (collectively, the “Defendants”). Scully sought to recover damages for an alleged wrongful demotion pursuant to 42 U.S.C. § 1983 (“Section 1983”) and various provisions of the laws of the State of New Jersey. The instant matter was tried to a jury, and Scully was awarded $89,500 in compensatory and punitive damages. Scully was also reinstated to his prior position. Currently pending is the motion of the Defendants for judgment as a matter of law (the “Motion for Judgment as a Matter of Law”) pursuant to Rule 50(b) of the Federal Rules of Civil Procedure (“Rule 50(b)”). For the reasons set forth below, the Motion for Judgment as a Matter of Law is granted in part and denied in part. Facts A. Parties Scully is a resident of Hawthorne, New Jersey and an employee in its police department (the “Borough Police Department”). Scully alleges he was wrongfully demoted from the rank of Lieutenant as a result of the actions of the Defendants. The Borough of Hawthorne is a political subdivision of the State of New Jersey. At all relevant times, the Borough of Hawthorne was the employer of Scully. The Borough Council is the governing legislative body of the Borough of Hawthorne. The Borough Council is comprised of elected officials. Fred Criscitelli became the mayor of the Borough of Hawthorne (“Mayor Criscitel-li”) in January of 1998 as a result of an election held in November of 1997. Before his election as mayor, Mayor Criscitelli was an elected member of the Borough Council. Lois Cuccinello (“Councilwoman Cucci-nello”), John Lane (“Councilman Lane”), Joseph Metzler (“Councilman Metzler”), Marge Shortway (“Councilwoman Short-way”) and Patrick Botbyl (“Councilman Botbyl”) were elected members of the Borough Council. David A. Noble (“Chief Noble”) was the Chief of Police for the Borough of Hawthorne. Brian Carmen (“Officer Carmen”) and Joseph Walilko (“Officer Walilko”) were employed as officers by the Borough Police Department. B. Procedural History Scully filed the initial complaint in this matter on 30 March 1998. Scully filed an amended complaint (the “Amended Complaint”) on 16 June 1998. Defendants filed an answer to the Amended Complaint (the “Answer”) on 13 July 1998. On 24 July 1998, a scheduling conference was attended by counsel for all parties to this action. Pursuant to, an order, dated 24 July 1998, the parties were directed to submit agreed-upon jury charges and an agreed-upon verdict sheet by 2 November 1998 (the “Agreed Jury Charges,” the “Agreed Verdict Sheet”). The Agreed Jury Charges and the Agreed Verdict Sheet were submitted on 9 November 1998. Pursuant to a stipulation between the parties, dated 9 November 1998, (the “9 November 1998 Stipulation of Dismissal”) the following counts, or portions of these counts, were dismissed with prejudice and without costs to any party: (1) Count One of the Amended Complaint was dismissed as to Councilwoman Cuccinello, Councilman Met-zler and Councilman Botbyl; (2) Count Two of the Amended Complaint was dismissed as to Officer Carmen, Officer Walilko and John Does 1-30; (3) Count Three of the Amended Complaint was dismissed in its entirety; (4) Count Four of the Amended Complaint was dismissed as to Councilwoman Cuccinello, Councilman Met-zler and Councilman Botbyl; (5) Count Five of the Amended Complaint was dismissed in its entirety; (6) Count Six of the Amended Complaint was dismissed as to Councilwoman Cuccinello, Councilman Met-zler, Councilman Botbyl, Officer Carmen, Officer Walilko and John Does 1-39; and (7) Count Ten of the Amended Complaint was dismissed in its entirety. See 9 November 1998 Stipulation of Dismissal. Pursuant to a stipulation and order, dated 16 March 1999, Count Nine of the Amended Complaint, alleging violations of public policy, was dismissed as to Councilwoman Cuccinello and Councilman Met-zler. The trial of this matter, before a jury, commenced on 16 March 1999. This matter was tried from 16 March 1999 through 23 March 1999. On 19 March 1999, Defendants filed a motion to amend the Answer (the “19 March 1999 Motion to Amend Answer”). The 19 March 1999 Motion to Amend Answer was denied. Also on 19 March 1999, upon completion of Scully’s case in chief, Defendants moved for judgment as a matter of law (the “19 March 1999 Motion for Judgment as a Matter of Law”) pursuant to Rule 50(a) of the Federal Rules of Civil Procedure (“Rule 50(a)”). In Response to the 19 March 1999 Motion for Judgment as a Matter of Law, Scully consented to the dismissal of this matter as to Councilwoman Shortway. Accordingly, Councilwoman Shortway was dismissed as a Defendant. The 19 March 1999 Motion for Judgment as a Matter of Law was denied as to the remaining Defendants. Defendants completed their case on 19 March 1999. The jury was charged on 22 March 1999 and began deliberations on that date. The Jury returned a verdict in favor of Scully on 23 March 1999. Following the verdict, Scully moved for reinstatement to the rank of lieutenant; this motion was granted. C. Background 1. Evidence Presented at Trial Scully had been a member of the Borough Police Department for approximately twenty years. Scully began his employment with the Borough Police Department as a patrolman, and was promoted to the rank of Sergeant in November of 1993. During the fall of 1997, there was a campaign and election for mayor of the Borough of Hawthorne (the “November 1997 Election”). Scully openly supported the incumbent mayoral candidate, Paul Engelhardt (“Former Mayor Engel-hardt”). Scully demonstrated his support for Former Mayor Engelhardt by placing a campaign sign on the lawn of his home and by contributing money. During the 1997 election campaign, Mayor Criscitelli, Councilwoman Shortway and Councilman Lane were all members of the Borough Council and were politically aligned in opposition to Former Mayor Engelhardt. The campaign for the November 1997 Election was apparently contentious, particularly in light of litigation by Mayor Criscitelli against Former May- or Engelhardt to compel disclosure of Former Mayor Engelhardt’s campaign contributors. Mayor Criscitelli, Councilwoman Short-way and Councilman Lane formed a group called the “A Team,” so named because their party was listed on the A-line on the ballot. The “A Team” distributed a campaign flyer that listed the names of individuals who were alleged to have a financial interest in the campaign of Former Mayor Engelhardt. Scully was listed -among the names of those having a financial interest in the campaign of Former Mayor Engel-hardt. In addition, the campaign flyer distributed by the “A Team” suggested Scully might have a promotion “in the works” on account of his contributions to the campaign of Former Mayor Engel-hardt. On 5 November 1997, the day after the November 1997 Election, Scully was approached by Lieutenant Kenyon, his superior officer. Lieutenant Kenyon stated he had attended the victory party for Mayor Criscitelli and “[Mayor Criscitelli] told me he’s coming after you the first of the year and you might be a lieutenant, but you’re going to be walking McFarlan Avenue.” Shortly after the “A Team” distributed its campaign flyer to the residents of the Borough of Hawthorne, postings of anonymous caricatures, cartoons and other material disparaging of Scully and Former Mayor Engelhardt began to be posted in the locker room of the Borough Police Department. This material was posted on lockers, walls, and the PBA bulletin board. The postings depicted Former Mayor Engelhardt as a Nazi. In addition, the postings portrayed Scully as a puppet of Former Mayor Engelhardt, disparaged his intelligence and qualifications, and suggested his career was “going down the toilet” on account of his support for Former Mayor Engelhardt. Scully testified he complained to Chief Noble concerning the postings on two or three occasions. Chief Noble, while denying Scully had complained to him concerning the postings, testified that he allowed such postings to continue because they provided a source of levity. Mayor Criscitelli, a councilman at the time of the November 1997 Election, defeated Former Mayor Engelhardt. Mayor Criscitelli took the oath of office on 1 January 1998. Before the November 1997 Election, in approximately late October 1997, Scully was informed by Chief Noble that he would be promoted to the rank of Lieutenant. On 11 November 1997, approximately one week after the November 1997 Election, Scully was promoted to the rank of Lieutenant by Former Mayor Engelhardt. In a ceremony attended by his family and the highest ranking police officer on duty, Scully took the oath of office for a police Lieutenant; the oath was given by Former Mayor Engelhardt. Following the promotion ceremony, Scully reported for work wearing the uniform of a police Lieutenant. Scully was congratulated on his promotion by Chief Noble. Chief Noble also gave Scully the breast and hat shields of a police Lieutenant, Although Scully reported to work as a Lieutenant during the period commencing on 11 November 1997 and ending on 29 December 1997, Scully was not paid the increased salary of a police Lieutenant. On 17 December 1997, the Borough Council was presented with a budget resolution that, in addition to other funding issues, concerned the provision of monies to fund the promotion of Scully to Lieutenant. Although there was testimony that there were funds available to pay for the promotion of Scully, the Borough Council, on 17 December 1997, decided to deny funding for the promotion of Scully. After consulting with the attorney for the Borough of Hawthorne and the Borough Administrator, Chief Noble required Scully to return to the rank of Sergeant on 29 December 1997. There was no testimony that Scully had committed any misconduct or had not properly performed as a Lieutenant. At no time prior to Scully’s demotion did the Borough of Hawthorne conduct a hearing with regard to whether Scully should be demoted, nor was there a finding of “just cause,” as that term is defined by N.J.Stat.Ann. § 40A: 14-147 (“Section 40A:14-147,” or the “Police Tenure Law”). Following his demotion, Scully filed a grievance with his superiors. This grievance was denied by Chief Noble. The grievance was also denied by Mayor Cris-citelli. Scully subsequently filed the same grievance with the Borough Council. On 4 March 1998, the Borough Council adopted a resolution refusing to participate in the grievance procedure. 2. Claims Submitted to the Jury and the Jury Verdict Count One of the Amended Complaint alleged Scully was deprived of his property right in the position of Lieutenant. See Amended Complaint ¶ 54. Count One of the Amended Complaint sought recovery from the Borough of Hawthorne, the Borough Council, Mayor Criscitelli, Councilman Lane and Chief Noble. Count One of the Amended Complaint also alleged Scully was demoted from the position of Lieutenant as a direct result of the support he gave to Former Mayor Engelhardt in the 1997 Election. Scully asserted this violated his First Amendment rights to freedom of speech and expression. Count Two of the Amended Complaint alleged Chief Noble deprived Scully of his rights to freedom of speech and expression by punishing him for his political activities. Count Four of the Amended Complaint alleged that the Borough of Hawthorne demoted Scully from the rank of Lieutenant to Sergeant without cause and in violation of Section 40A: 14-147. Section 40A: 14-147 provides that police officers are not to be “removed, fined, or reduced in rank from or in office, employment, or position therein, except for just cause.” Section 40A: 14-147. Just cause is defined as “incapacity, misconduct, or disobedience.” Id.. Count Six of the Amended Complaint alleged the Borough of Hawthorne demoted Scully in violation of Article 1, paragraph 1 of the Constitution of the State of New Jersey. Count Seven of the Amended Complaint alleged there was a contract created between Scully and the Borough of Hawthorne when Scully was offered the position of Lieutenant and accepted by taking the oath of office and performing the duties of a Lieutenant. Count Seven further alleged the Borough of Hawthorne breached its employment contract with Scully when it demoted him from the rank of Lieutenant to the rank of Sergeant. Count Nine of the Amended Complaint alleged New Jersey has a public policy honoring the right to participate in political action. Count Nine asserted the Borough of Hawthorne subjected Scully to “an adverse employment action in violation of the clear public policy of the State of New Jersey.” Amended Complaint ¶ 105. The Jury returned its verdict on the Agreed Verdict Sheet as follows. In response to the question of whether the Defendants had deprived Scully of his constitutional property rights in the position of Lieutenant on account of his political activities, the Jury found Mayor Criscitelli and the Borough Council liable. The Jury awarded damages in the amount of $18,-000. In response to the question of whether Defendants deprived Scully of his civil rights of free speech and association, the Jury found Mayor Criscitelli, the Borough Council and Chief Noble were liable. The Jury awarded damages in the amount of $3,000. The various state law claims raised by Scully were submitted to the Jury in a single, multi-part question on the Agreed Verdict Sheet. The Jury determined the Borough of Hawthorne was liable for violating Section 40A: 14-147, for breach of contract, for violating the Constitution of the State of New Jersey and for violating a mandate of public policy. The Jury awarded Scully damages in the amount of $8,000 for these violations. The issue of punitive damages was presented to the Jury on the Agreed Verdict Sheet as to those Defendants found liable, pursuant to Section 1983, for depriving Scully of his property rights in the position of the Lieutenant and for depriving Scully of his rights to freedom of speech and expression. The Jury found that Scully had proven, by a preponderance of the evidence, that Mayor Criscitelli and the Borough Council had acted maliciously. The Jury determined Scully was entitled to recover $30,000 in punitive damages from Mayor Criscitelli and $30,500 in punitive damages from the Borough Council. As noted, the substantive law pertaining to the claims submitted to the Jury was set forth in the Agreed Jury Charges. The Jury was instructed as the parties requested in the Agreed Jury Charges; there was no relevant objection to the jury charges, as given to the Jury. Discussion A. Standard of Review Pursuant to Rule 50 Defendants move pursuant to Rule 50(b) to: (1) allow the verdict to stand as to the Borough of Hawthorne, as per the findings of the Jury in Question Numbers 1 and 3 of the Agreed Verdict Sheet; (2) allow the verdict to stand, in its entirety, as to Councilman Lane; (3) enter judgment as a matter of law in favor of the Individual Defendants and the Borough Council; and (4) enter judgment as a matter of law in favor of the Borough of Hawthorne, as to those claims encompassed by Question Numbers 5 and 6 of the Agreed Verdict Sheet. See Individual Defendants Moving Brief; Borough Defendants Moving Brief. Rule 50(b) provides, in relevant part: If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: (1) if a verdict was returned: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law; or (2) if no verdict was returned; (A) order a new trial, or (B) direct entry of judgment as a matter of law. Rule 50(b). When presented with a motion for judgment as a matter of law following a jury verdict, a “[District [Cjourt must view the evidence in the light most favorable to the non-moving party, and determine whether the record contains the ‘minimum quantum of evidence from which a jury might reasonably afford relief.’ ” Mosley v. Wilson, 102 F.3d 85, 89 (3d Cir.1996) (quoting Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.1993) (quotation omitted)); see also Coleman v. Kaye, 87 F.3d 1491, 1497 (3d Cir.1996). A jury verdict should be overturned “only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir.1998); Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 510 (3d Cir.1998) (citing Stelwagon Mfg. Co. v. Tarmac Roofing, 63 F.3d 1267, 1270-71 (3d Cir.1995) (“[Fjactual findings [of a jury] are reviewed to determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict.”)); Delli Santi v. CNA Ins. Cos., 88 F.3d 192, (3d Cir.1996) (The role of the court is to determine “ ‘whether the evidence and justifiable inferences most favorable to the non-moving party afford any rational basis for the verdict.’ ”) (quoting Anastasio v. Schering Corp., 838 F.2d 701, 705 (3d Cir.1988) (citing Bhaya v. Westinghouse Electric Corp., 832 F.2d 258, 259 (3d Cir.1987); Blum v. Witco Chem. Corp., 829 F.2d 367, 372 (3d Cir.1987))). Generally, a renewed motion for judgment as a matter of law that is made after trial “must be made on grounds that were previously asserted in a motion for directed verdict prior to the submission of the case to the jury.” Mosley; 102 F.3d at 90; see also Rule 50(b) Advisory Committee’s Note; Simmons v. City of Philadelphia, 947 F.2d 1042, 1077 (3d Cir.1991). Scully argues that although Defendants in the instant case made a motion for judgment as a matter of law at the close of Scully’s case, Defendants failed to renew their motion prior to submission of the case to the jury. Scully asserts this failure waives the right of Defendants to challenge a jury verdict pursuant to Rule 50(b). “It is a firmly entrenched rule that a court may grant a motion for judgment notwithstanding the verdict only when the moving party formally renewed its motion for a directed verdict at the close of all the evidence.” Mallick v. Int’l Bhd. Elec. Workers, 644 F.2d 228, 233 (3d Cir.1981) (citing Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9(1976)). The Third Circuit, in Mallick, stated: This Rule is commanded not only by the language of [Rule 50(b) ], but also by the policy of the Seventh Amendment’s guarantee of a jury trial. Unless a court has been alerted to deficiencies in proof by a motion for a directed verdict, a request that the court enter a judgment contrary to that of the jury is tantamount to asking the court to reexamine the facts as found by the jury. Such a re-examination would abridge the Seventh Amendment. Mallick, 644 F.2d at 233. Accordingly, it appears the renewal of a motion for judgment as a matter of law at the close of all the evidence remains a “predicate,” “prerequisite” or “condition precedent” to a motion under Rule 50(b). See Lowenstein, 536 F.2d at 10-11. In the instant case, the Defendants moved for judgment as a matter of law at the conclusion of Scully’s ease. See Tr. p. 487.1. 17 to p. 497,1. 19. This motion was denied without prejudice. See id. at p. 497.1. 15-19. The motion for judgment as a matter of law was renewed by defendants after the conclusion of the case, but while the jury had begun deliberations. See id. p. 689, 1. 20 to p. 706, 1. 24). Decision on the renewed motion for judgment as a matter of law was reserved, and the parties were directed to order the trial transcript and submit briefs, referencing the transcript, in support of their positions relevant to the Motion for Judgment as a Matter of Law. See id. at p. 704, 11. 4-10. The Defendants submitted the pending Motion for Judgment as a Matter of Law, pursuant to Rule 50(b), after the jury returned its verdict. Scully argues that although Defendants made a motion for judgment as a matter of law at the close of his case, Defendants failed to timely renew their motion before the instant case was submitted to the Jury. See Opposition Brief at 5. Scully further argues this failure constitutes a waiver of the right to challenge the jury verdict pursuant to Rule 50(b). See id. at 5-7 (citing Mallick, 644 F.2d at 234; Lowenstein, 536 F.2d at 11 (“[Jjudicial power exists under Rule 50(b) to grant judgment notwithstanding the verdict only when a motion for a directed verdict has been made at the conclusion of all of the evidence.”)). Defendants, however, argue there is no procedural bar to the pending Motion for Judgment as a Matter of Law. See Individual Defendants’ Reply Brief at 1-6. Defendants assert that the requirement of renewing a motion for judgment as a matter law at the close of all the evidence, and before a case is submitted to the jury, may be relaxed in certain situations. See id. at 4 (citing Associated Bus. Tel. Sys. v. Greater Capital, 729 F.Supp. 1488 (D.N.J.), aff'd, 919 F.2d 133 (3d Cir.1990)). In Associated Business Telephone the court determined that the failure to file a motion for judgment as a matter of law at the close of all of the evidence, as required by Rule 50(b), could be excused if: (a) there has been substantial, if not literal compliance with the rule; (b) where manifest injustice will otherwise occur since the judgment is totally without legal support; (c) where the trial judge in .effect excused the failure to renew the motion; and (d) where the additional evidence was brief and inconsequential. Associated Bus. Tel., 729 F.Supp. at 1502 (citing Skill v. Martinez, 91 F.R.D. 498, 515 n. 14 (D.N.J.1981), ajfd 677 F.2d 368 (3d Cir.1982)). In the instant matter, it is appropriate to excuse the failure of the Defendants to move for judgment as a matter of law at the close of all of the evidence, and before submission of the case to the Jury. In addressing the 19 March 1999 Motion for Judgment as a Matter of Law made at the close of Scully’s case, it was stated: I’m going to deny without prejudice the Rule 50 motion here. If it’s appropriate at the end of the case and you feel it’s necessary, you have leave to file another motion at the end of the case if the jury comes back against you, but I’m going to deny it without prejudice at this point. Tr. p. 497, 11. 14-19. Accordingly, it was specifically contemplated that a renewed motion for judgment as a matter of law would not be made until after the Jury returned its verdict. The failure of the Defendants to move at the close of all the evidence is excused. . See Associated Bus. Tel., 729 F.Supp. at 1502. All arguments raised in connection with the Motion for Judgement as a Matter of Law will be considered. B. Was There Support for the Finding Scully Held the Position of Lieutenant in the Borough of Hawthorne The Jury determined Scully had proven, by a preponderance of the evidence, that he had held the position of police Lieutenant with the Borough of Hawthorne. Defendants, however, argue that the promotion of Scully by Former Mayor Engelhardt violated the Local Budget Law, N.j.StatAnn. 40A:4-57 (the “Local Budget Law”). See Individual Defendants Moving Brief at 26-12; Borough Defendants Moving Brief at 2-4. The Local Budget law provides, in relevant part: No officer, board, body or commission shall, during any fiscal year, expend any money (except to pay notes, bonds, or interest thereon), incur any liability, or enter into any contract which by its terms involves the expenditure of money for any purpose for which no appropriation is provided, or in excess of the amount appropriated for such purpose. Any contract made in violation hereof shall be null and void, and no moneys shall be paid thereon. N.J.Stat'Ann. 40A4-57. In Home Owners Construction Co. v. Glen Rock, 34 N.J. 305, 169 A.2d 129 (1961), the New Jersey Supreme Court' rejected a mechanical, inflexible approach to the Local Budget Law, allowing incidental additions to the budgeted terms of a pre-existing construction contract. The Home Owners Construction court noted that the original contract with the builder had been preceded by proper bidding. Id. at 315, 169 A.2d 129. It was held that the statute should be interpreted to further, not defeat, the legislative goal of sound fiscal policy. Id. “Where the resulting additional expenditures are reasonable and are conscientiously viewed as being in fulfillment of the original undertaking rather than as departing therefrom ... it would be contrary to the public interest to halt the undertaking and call for bidding.” Id. In the instant case, there was sufficient evidence presented to allow the Jury to conclude that the promotion of Scully was not voided by operation of the Local Budget Law. On 11 November 1997, Former Mayor Engelhardt appointed Scully to the position of Lieutenant in the Borough Police Department. See Tr. p. 343, 11. 15-20, p. 344, 11. 16-22 (Former Mayor Engelhardt); Trial Exh. 42. In the courtroom of the municipal building, Former Mayor Engelhardt administered the oath of office to Scully in the presence of several witnesses, including Scully’s family and police captain John Shannon, the highest ranking police officer on duty. See Tr. p. 62, 1. 19 to p. 64, 1. 6 (Scully); id. p. 344, 11.16-25 (Former Mayor Engelhardt). Scully signed the oath, and the papers were filed with the municipal clerk. See Tr. p. 64, ll. 7-11. Scully’s promotion filled a vacancy in departmental staffing for the position of police Lieutenant. See id. p. 100,1. 16 to p. 101,1. 2 (Scully); id. p. 267, 1. 22 to p. 268, 1. 1 (Chief Noble); id. p. 346, 1. 25 to p. 347, 1. 6 (Former Mayor Engelhardt). From the testimony presented at trial, the Jury could reasonably have concluded Scully was qualified for the position of police lieutenant. See Tr. t 373:1-4 (Former Mayor Engelhardt); id. p. 297, ll. 13-15 (Chief Noble). The day after taking the Lieutenant’s oath, Scully reported to work wearing a lieutenant’s uniform, complete except for the lieutenant’s shields. See Tr. p. 64, 1. 25 to p. 65, 1. 19 (Scully). Chief Noble congratulated Scully on his promotion and gave Scully the hat shield and breast shield of a police lieutenant. See id. p. 66, ll. 2-21 (Scully). While on duty during the period from 12 November 1997 through 29 December 1997, Scully assumed and performed the duties of a police lieutenant, taking the appropriate new position in the chain of command. See Tr. p. 67,1. 24 to p. 68,1. 12 (Scully); id. p. 69, ll. 4-17 (Scully); id. p. 276, 1. 18 to p. 278, 1. 13 (Chief Noble); Trial Exh. 73 (overtime slip dated 15 December 1999, signed by Chief Noble and reflecting Scully’s rank as Lieutenant). In addition, there was a collective bargaining agreement entered into by the Borough of Hawthorne and the Policemen’s Benevolent Association of Hawthorne, New Jersey Local No. 200 (the “Hawthorne-Local 200 CBA”). See Exh. 72. The Hawthorne-Local 200 CBA expressly provided: “In the event of promotion during the year, the salary shall be adjusted proportionately for the remainder of the year.” Exh. 72, Art. III (Unit B-Superior Police Officers), p. 3. The Hawthorne-Local 200 CBA also expressly provided for tenure protection for police officers. See id. The Hawthorne-Local 200 CBA stated management “rights, authority, duties and responsibilities” are bounded by the authority granted under “the Laws and Constitution of the State of New Jersey, and of the United States.” Id., p. 3, ¶ A; id. pp. 3-4, ¶ B (referring to responsibilities under R.S. 40A). Thus, in accordance with the terms of the Hawthorne-Local 200 CBA, the Jury could have reasonably concluded the Hawthorne-Local 200 CBA incorporated the provisions of the Police Tenure Law as well as the Local Budget Law, which required an adequate appropriation. See, e.g., Home Owners Construction, 34 N.J. at 315, 169 A.2d 129 (incidental expenditures in furtherance of an original undertaking are not invalidated by operation of the Local Budget Law). The Police Tenure Law provides that no police officer can be “suspended, removed, fined or reduced in rank ... except for just cause.” Section 40A: 14-147. There was no evidence presented from which it could be concluded Scully was demoted for good cause. In addition, the promotion of Scully to Lieutenant filled a then existing vacancy in the Borough Police Department. Accordingly, the facts presented at trial, together with all reasonable inferences drawn from them, support the finding of the Jury that Scully had been promoted to the position of Lieutenant. Further, the evidence presented at trial supports the conclusion of the Jury that the promotion of Scully was not voided by operation of the Local Budget Law. The conclusion the Local Budget Law was inapplicable to the facts of the instant case, which is inherent in the determination of the Jury that Scully was promoted, is supported by the evidence and all justifiable inferences that may be drawn in favor of Scully. See, e.g., Exh. 24 (memorandum from Borough Treasurer to Councilmen Criseitelli and Lane, noting money sufficient to cover the promotion of Scully had been included in the amount needed to sufficiently fund the Borough Police Department Salary Account); Tr. p. 172, 11. 21-23 and p. 178, 11. 5-7 (testimony of Councilman Botbyl, stating $500 was all that was needed to fund the promotion of Scully for the year, and observing that the salary and wage line for the Borough Police Department contained unencumbered funds exceeding $132,000); id. p. 100,1. 16 to p. 101, 1. 2 (Scully—Scully’s promotion filled a vacancy in departmental staffing for the position of Lieutenant); id. p. 267, 1. 22 to p. 268, 1. 1 (Chief Noble—same); id. ■ p. 346, 1. 25 to p. 347, 1. 6 (Former Mayor Engelhardt—same). Accordingly, the evidence, with all reasonable inferences drawn in favor of Scully, would allow a reasonable jury to conclude Scully was promoted. Further, the evidence supports the conclusion that such promotion was either incidental to the Hawthorne-Local 200 CBA, and therefore outside the operation of the Local Budget Law, or filled a then existing position for police Lieutenant for which an appropriation had previously been made. C. Section 1983 Claims 1. Elements of a Section 1983 Claim Section 1983 of Title 42 (“Section 1983”) provides a cause of action against a person “who, under the color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. The purpose of Section 1983 is “to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)); see also Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.); Bolden v. Southeastern Pennsylvania Transp. Auth., 21 F.3d 29, 34 (3d Cir.1994). To succeed on a claim brought pursuant to Section 1983, a plaintiff must prove the violation of a right secured by the Constitution or laws of the United States and that the conduct complained of was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331,106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). 2. Claims of Immunity a. Legislative Immunity for Mayor Criscitelli At the time of the demotion of Scully, Mayor Criscitelli was serving as a member of the Borough Council, and had not yet taken office as mayor of the Borough of Hawthorne. The actions taken by Mayor Criscitelli, m relation to the claims raised by Scully, all took place during Mayor Criscitelli’s tenure as a councilman. Municipal legislators enjoy an absolute immunity against claims brought pursuant to Section 1983 where such claims arise from actions taken in their legislative capacity. See Bogan v. Scott-Harris, 523 U.S. 44, 53-54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (making explicit the entitlement of local legislators to absolute immunity for their legislative acts); see also Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (state legislators absolutely immune from suit); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (regional legislators entitled to absolute immunity). At the time Section 1983 was enacted, local legislators were entitled to absolute immunity from suit pursuant to the common law. See Bogan, 523 U.S. at 49, 118 S.Ct. 966; see also T & M Homes, Inc. v. Township of Mansfield, 162 N.J.Super. 497, 512, 393 A.2d 613 (Law Div.1978). Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains common place. And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. Bogan, 523 U.S. at 52, 118 S.Ct. 966 (citations omitted). The Bogan Court addressed an issue analogous to the issue presented in the instant case. The plaintiff in Bogan alleged, inter alia, that the elimination of her position by city officials was motivated by a desire to retaliate against her for the exercise of her First Amendment rights. See Bogan, 523 U.S. at 47, 118 S.Ct. 966. A jury returned a verdict in favor of the plaintiff. It found the city and the vice president of the city council were liable for violating the plaintiffs constitutionally protected right to free speech. See id. The Court determined that the council vice president’s act of voting in favor of an ordinance that eliminated the plaintiffs position was “quintessentially legislative.” See id. at 55, 118 S.Ct. 966. Accordingly, the council vice president was found to be absolutely immune from a suit brought pursuant to Section 1983. See id. at 55-56,118 S.Ct. 966. Scully argues that the Defendants’ conduct in demoting him was not legislative. See Opposition Brief at 34. Scully asserts the actions of the Defendants’ were managerial and not legislative. See id. In making this argument, Scully improperly characterizes the action taken by the members of the Borough Council. The Borough Council did not demote Scully. Rather, the Borough Council voted on an appropriations resolution and refused to fund the promotion of Scully. The Bogan Court characterized absolute legislative immunity as encompassing “all actions taken in the sphere of legitimate legislative activity.” Id. at 54, 118 S.Ct. 966. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Id. The act of passing an ordinance that eliminated the plaintiffs position “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents.” See id. at 55-56, 118 S.Ct. 966. As in Bogan, the instant case presents a situation in which the Borough Council addressed a resolution that concerned budgetary matters; these concerns implicate the discretionary, policy-making processes traditionally assigned to legislators. See id. at 56, 118 S.Ct. 966. Mayor Criscitelli voted, in his capacity as a councilman, not to fund the promotion of Scully. This action fell within the discretionary, budgetary functions traditionally assigned to legislators. Accordingly, Mayor Criscitelli is entitled to absolute legislative immunity for the actions he took as a member of the Borough Council. Because Mayor Criscitelli is immune from suit, he is entitled to judgment as a matter of law in his favor on those counts alleging violations of Section 1983. b. Qualified Immunity For Chief Noble Chief Noble argues he is entitled to qualified immunity’ from the Section 1983 claims raised by Scully. See Individual Defendants Moving Brief at 33-36. “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as then-conduct does not violate clearly-established statutory or constitutional rights of which a reasonable person would have been known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 'S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Ryan v. Burlington County, 674 F.Supp. 464, 479 (D.N.J.1987), aff'd, 860 F.2d 1199 (3d Cir.1988). When addressing whether a public official is entitled to qualified immunity, this Circuit requires inquiry first be made into whether the plaintiff has established a claim for a constitutional violation. See Assaf v. Fields, 178 F.3d 170, 173 (3d Cir.1999) (citing Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)); Malignaggi v. County of Gloucester, 855 F.Supp. 74, 79 (D.N.J.1994). Only after the alleged constitutional violation has been established should the question of qualified immunity be addressed. See Assaf, 178 F.3d at 173. As explained below, Scully has failed to present evidence from which a jury could reasonably conclude Chief Noble violated his constitutional rights. Accordingly, the issue of qualified immunity need not be addressed. See Assaf, 178 F.3d at 173. 3. Procedural Due Process The determination of whether a plaintiff has adequately alleged a violation of the Fourteenth Amendment’s Due Process Clause involves two steps. First, it must be determined whether the plaintiff has proved interference with a protected property interest. See Board of Regents v. Roth, 408 U.S. 564, 569-70 & n. 1, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also LaChance v. Erickson, 522 U.S. 262, 118 S.Ct. 753, 139 L.Ed.2d 695 (1998); Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998); Larsen v. Senate of Commonwealth of Pennsylvania, 154 F.3d 82, 92-93 (3d Cir.1998). Second, it must be determined whether the procedures employed by the state to protect that property interest were constitutionally inadequate. See Abbott, 164 F.3d at 146; Larsen, 154 F.3d at 92-93. Only Question 1 of the Agreed Verdict Sheet appears to ask the Jury to make a determination as to whether Scully was deprived of a property right. See Agreed Verdict Sheet, Quest. 1. Question 1 asked: Did the Plaintiff prove, by a preponderance of the evidence, that he held the position of police lieutenant in the Borough of Hawthorne and that some or all of the following Defendants deprived him of his constitutional property rights in that position on account of his political activities? Id. (emphasis in the original). Question 1 of the Agreed Verdict Sheet appears to be similar to Question 3 of the Agreed Verdict Sheet. Question Three of the Agreed Verdict Sheet asked: Did the Plaintiff prove by a preponderance of the evidence, that some or all of the following Defendants deprived him of the civil rights of free speech and association secured to the Plaintiff by the Constitution of the United States? Id. As mentioned, the instant case was tried and the Jury was instructed pursuant to charges prepared, and agreed to, by the parties. The Agreed Jury Charges requested and prepared by the parties concerning the substantive law related to the Section 1983 claims raised by Scully stated: Plaintiff claims that he held the position of police lieutenant in the Borough of Hawthorne and was thereafter demoted because of his exercise of free speech under the First Amendment of the Constitution. The defendants deny all of these claims. The First Amendment of the Constitution of the United States gives every citizen the right to freedom of speech, which includes the right to support candidates for political office. A person may sue for an award of money damages against anyone who, “under color” of any State law or custom, intentionally violates the plaintiffs rights under the Constitution of the United States. Thus, the plaintiff must prove by a preponderance of the evidence each of the following: 1. That the actions of the defendant(s) were “under color” of the authority of the State of New Jersey; 2. That the plaintiffs speech activities were constitutionally “protected” under the First Amendment; 3. That the plaintiffs exercise of protected First Amendment rights was a substantial or motivating factor in the defendant(s) actions concerning plaintiff; 4. That the defendant(s) acts were the proximate or legal cause of the plaintiffs damages. State or local officials act “under color” of the authority of the State when they act within the limits of their lawful authority. However, they also act “under color” of the authority of the State when they act without lawful authority or beyond the bounds of their lawful authority if their acts are done while the officials are purporting or pretending to act in the performance of their official duties. An official acts “under color” of the State authority if he abuses or misuses a power that he possesses only because he is an official. It is agreed between the parties that the plaintiff as a public employee has a right to support political candidates of his choosing, and such support is a form of freedom of speech. Therefore, you may accept as fact that the speech activities of the plaintiff were protected First Amendment expressions. To prove that his speech activities were a substantial or motivating factor in the defendants’(s’) decision, the plaintiff does not have to prove that those speech activities were the only reason the defendants made the decision. The plaintiff need only prove that the speech activities were a substantial consideration that made a difference in or influenced the defendant’s(s’) decision. The plaintiff must also prove by a preponderance of the evidence that the act or failure to act by the defendant was the cause-in-fact of the damage plaintiff suffered. An act or a failure to act is a cause-in-fact of an injury or damages if it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury or damages.... If you find that the plaintiff has established each element of his claim, you must then decide whether the defendants) have shown by a preponderance of the evidence that they would not have acted differently concerning the plaintiff even if plaintiff had not exercised his protected speech activity. If you find that the defendant(s) acted for reasons apart from the speech activity, then your verdict should be for the defendant(s). If you find for the plaintiff and against the defendant(s) on their defense, you must then decide the issue of the plaintiffs damages. Agreed Jury Instructions, pp. 3-4; see also Tr. at p. 659, 1. 21 to p. 662, 1. 14. The instructions presented to the Jury as to the substantive law governing the Section 1983 claims of Scully were titled “Civil Rights—42 USC Section 1983 (Adverse Employment Decision—Exercise of First Amendment Rights).” See Agreed Jury Instruction p. 3. The parties did not request any further instruction relating to the substantive Section 1983 claims of Scully was presented. See id. pp. 3-7 (remaining Section 1983 instructions concerned burdens of proof and municipal liability). Scully argues the Jury properly found he had been deprived of his property interest in the position of Lieutenant in violation of the Fourteenth Amendment to the Constitution of the United States. See Opposition Brief at 17-20. The parties, Scully included, however, did not request a jury instruction relevant to the Fourteenth Amendment; nor was one given. As stated, a claim made pursuant to the Fourteenth Amendment required Scully to prove he was deprived of a property interest and that this deprivation occurred without being provided with a meaningful opportunity to be heard. Scully, however, by agreement with Defendants, submitted jury instructions relating only to the alleged violation of his First Amended rights. See Agreed Jury Instructions pp. 3-4. At the close of Scully’s case, Defendants made a motion for judgment as a matter of law. During argument on that motion, it was observed that, by submission of the Agreed Jury Charges, the Amended Complaint had been further amended, and the case tried, to reflect only those causes of action set forth in the Agreed Jury Charges. See Tr. p. 495, 11. 4-6, 11-13 (“This is what you folks have agreed to and you agreed that these charges were adequate for the causes of action that were going to the jury”). Accordingly, Scully cannot now seek to argue he has proven a claim premised upon the violation of his Fourteenth Amendment rights; such a claim was never submitted to the Jury. The parties, by joint agreement, never requested the jury be instructed concerning the Fourteenth Amendment, the creation of a property interest, or the requirement of a meaningful hearing at a meaningful time. As a result, the jury verdict in favor of Scully cannot be upheld to the extent Scully argues the verdict is premised upon violation of his Fourteenth Amendment right to due process. Question 1 and Question 3 of the Agreed Verdict Sheet, therefore, will be addressed together as requesting damages for violation of Scully’s First Amendment right to free speech. 4. Scully’s First Amendment Claim In order for a Scully to establish a prima facie case of retaliatory demotion, he must prove (1) his conduct was “constitutionally protected;” and (2) his conduct was a “substantial factor,” or a “motivating factor,” in the adverse employment decision. Mt. Healthy City School District Bd. ofEduc. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); see also Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1074-75 (3d Cir.1990); Monsanto v. Quinn, 674 F.2d 990, 999-1000 (3d Cir. 1982); Trotman v. Board of Trustees of Lincoln Univ., 635 F.2d 216, 224 (3d Cir. 1980); Raniero v. Antun, 943 F.Supp. 413, 422 (D.N.J.1996). a. Constitutionally Protected Activity As mentioned, the first step of the retaliatory discharge analysis, required Scully to prove his conduct was constitutionally protected. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568. A state actor cannot lawfully terminate an employee for “reasons that infringe upon that employee’s constitutionally protected interest in freedom of speech.” Feldman v. Philadelphia Housing Auth., 43 F.3d 823 (3d Cir. 1994). To determine if an employee has engaged in protected free speech, a court must consider whether the speech “can fairly be characterized as constituting speech on a matter of public concern.” Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993) (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Zamboni v. Stamler, 847 F.2d 73, 77 (3d Cir.1988); Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983); Lees v. West Greene School District, 632 F.Supp. 1327,1330 (W.D.Pa.1986)). In the instant case, the parties stipu-' lated to the fact that the alleged conduct of Scully, relating to his support for the candidacy of Former Mayor Engelhardt, was speech protected by the First Amendment. See Agreed Jury Charges at 3-4 (“[Y]ou may accept as fact that the speech activities of the plaintiff were protected First Amendment Expressions”). Accordingly, the only issue presented in connection with the Section 1983 claim raised by Scully is whether Scully presented sufficient evidence, when all reasonable inferences are drawn in his favor, to afford a rational basis for the determination of the Jury that Scully was discharged as a result of his political support for Former Mayor Engelhardt. b. Unconstitutional Demotion Pursuant to the second step of the retaliatory demotion analysis, Scully was required to present evidence that his open support for Former Mayor Engelhardt was a “substantial,” or a “motivating,” factor in the decision to demote him. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568; Raniero, 943 F.Supp. at 422. The Jury determined that Scully had proven, by a preponderance of the evidence, that Mayor Criscitelli, the Borough Council, and Chief Noble violated the First Amendment rights of Scully. See Agreed Verdict Sheet Answer to Quests. 1(b), 3. The jury awarded damages totaling $18,-000 upon finding Mayor Criscitelli and the Borough Council were liable in Question 1(b), and awarded damages totaling $3,000 upon finding Mayor Criscitelli, the Borough Council, and Chief Noble were liable in response to Question 3. See Agreed Verdict Sheet Answer to Quests. 2,4. As set forth above, the relevant actions of Mayor Criscitelli took place during his tenure as a member of the Borough Council. As such, Mayor Criscitelli was entitled to absolute immunity for his decision not to fund the promotion of Scully. Accordingly, the Motion for Judgment as a Matter of Law is granted as it pertains to Mayor Criscitelli, on the grounds of absolute immunity. Concerning Chief Noble, there was no evidence presented from which a reasonable jury could have concluded Chief Noble demoted Scully because of Scully’s support for Former Mayor Engelhardt. Accordingly, Chief Noble has not, by his actions, violated the constitutional rights of Scully. Counsel for Plaintiff, in both his opening and closing statements, suggested Chief Noble was part of a conspiracy to demote Scully. Yet, Scully never presented any evidence to suggest a conspiracy between Chief Noble and the other Defendants. In addition, Scully never requested the Jury be charged as to the elements of a conspiracy so that such a factual finding could be made. See Agreed Jury Charges. Indeed, as discussed, the parties, Scully included, tried the case and presented it to the Jury for decision based upon the Agreed Jury Charges. Scully cannot now be heard to complain that the case was so tried and presented to the Jury. The evidence presented at trial, with all reasonable inferences drawn in favor of Scully, merely suggests that Chief Noble demoted Scully as a result of the decision of the Borough Council. There was no evidence to suggest Chief Noble was, in any manner, connected with the decision of the Borough Council. Nor was there any evidence to suggest Chief Noble was, in any way, politically motivated when he requested Scully resume the rank of Sergeant. The evidence demonstrates Chief Noble asked Scully to resume the rank of Sergeant only after having been informed by the Borough Attorney and the Borough Administrator that the promotion was not valid. See Tr. p. 308,1. 20 to p. 311, 1. 18; id p. 312, 11. 6-25; id p. 314, 1. 24 to p. 315, 1. 10. Accordingly, there was no evidence presented, nor could a rational inference from the evidence be drawn, that could serve as a basis for finding Chief Noble participated in the decision to demote Scully. Rather, the only reasonable conclusion supported by the evidence is that Chief Noble, after being informed there was no funding for the promotion of Scully, reacted by requesting Scully resume the position of Sergeant. Further, it appears Chief Noble contemplated that Scully would continue as a Sergeant only until the funding dispute could be resolved. Because there is no evidence to support the conclusion Chief Noble was motivated in his decision by the protected speech activities of Scully, see Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568; Raniero, 943 F.Supp. at 422, the Motion for Judgment as a Matter of Law is granted as it pertains to Chief Noble. Lastly, there was no evidence presented by Scully to support a verdict against the Borough Council. In the instant case, the Jury concluded the speech activities of Scully were a substantial or motivating factor in the decision of the Borough Council not to fund the promotion of Scully. The Borough Council, however, at all times relevant to the instant case, was composed of six members. Five of the six members of the Borough Council voted in favor of denying funding for the promotion of Scully. See Exh. 30 (Minutes of 17 December 1997 Meeting of the Borough Council). Scully bore the burden of proving, by a preponderance of the evidence, that his “exercise of protected First Amendment rights was a substantial or motivating factor in the defendant’s(s’) actions.” Agreed Jury Instructions at 3. Scully, however, as set forth below, has failed to present evidence which could serve as a rational basis for the conclusion the exercise of the free speech rights of Scully was a substantial or motivating factor in the decision of the Borough Council to deny funds for the promotion of Scully. As mentioned, Scully was required to proffer evidence at trial that would support a rational inference the Borough Council was substantially motivated by Scully’s exercise of his protected First Amendment rights. The Borough Council argues there was a complete lack of proof that any individual or official committed a wrongful act that was approved or adopted by the Borough Council. See Borough Defendants Moving Brief at ll. In the instant case, Scully was required to prove, by a preponderance of the evidence, the Borough Council was substantially motivated to deny funds for his promotion by the exercise of his First Amendment Rights. This presents the question of what percentage of the Borough Council must have been spurred by a constitutionally impermissible motive before the Borough Council itself may be held liable for a violation of Section 1983. This question does not appear to be an issue that has been settled in this Circuit. Some courts that have been presented with this question have determined that a majority of the members of a legislative body must have been motivated by a constitutionally impermissible motive for liability to attach to a municipality or legislative body. See, e.g., Church v. City of Huntsville, 30 F.3d 1332, 1343^44 & n. 5 (11th Cir.1994) (finding single council member did not have the authority to establish municipal policy and refusing to infer discriminatory intent from the silence of remaining council members); United States v. City of Yonkers, 856 F.2d 444, 457-58 (2d Cir.1988). Another court, however, acting in the area of race discrimination, determined liability could be premised upon proof a significant percentage of those who were responsible for the challenged action acted on the basis of an impermissible motive. See United States v. City of Birmingham, 538 F.Supp. 819, 826-29 (E.D.Mich.1982), aff'd, 727 F.2d 560 (6th Cir.1984) (finding proof that two of four members of majority faction on city commission were motivated by racial concerns was sufficient to support liability pursuant to Section 1983). Determining what proof is necessary to impose civil liability on a legislative body presents a difficult question. On the one hand, because a municipal ordinance can become law only by a majority vote of the city council, there is a certain incongruity in allowing fewer than a majority of the council members to subject the city to liability under section 1983. On the other hand, because discriminatory animus is insidious, and a clever pretext can be hard to unmask, the law sometimes constructs procedural devices to ease a victim’s burden of proof. Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir.1997), rev’d on other grounds, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). The Scott-Harris court, assumed, without deciding, that in a sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of the legislative body might be relaxed and a proxy accepted instead. Nevertheless, any such relaxation would be contingent on the plaintiff mustering evidence of both (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting probable complicity of others. Scott-Harris, 134 F.3d at 438. The Scottr-Harris approach appears to strike an appropriate balance between the difficulty of proving the motivation of a legislative body and the fact a municipal ordinance can only become law by a majority vote of the municipal council. In the instant case, Borough Council members Shortway, Lane, Cuccinello, Criscitelli and Metzler voted in favor of denying funds for the promotion of Scully. See Exh. 30 (complete vote was five in favor and one opposed). The evidence presented at trial fails to offer any support for the assertion the majority of the Borough Council was substantially motivated in its actions by the political speech or activity of Scully. For example, the Jury specifically determined Councilman Lane was not shown to have denied funds for the promotion of Scully on the basis of the political support Scully gave to Former Mayor Engelhardt. See Agreed Verdict Sheet Answer to Quest. 1 (finding Councilman Lane did not deprive Scully of a property right on account of his political activities); id. Answer to Quest 3 (finding Councilman Lane did not deprive Scully of his civil rights of free speech and association). Further, Scully agreed to dismiss Councilwoman Shortway from the instant action after conceding the evidence to support a claim against Councilwoman Shortway ‘Vas slim.” See Tr. p. 496, 11, 13-15. Scully did not object to Councilwoman Shortway being dismissed from the instant action on the grounds of insufficient evidence. See id. At trial, Scully did not present any evidence as to the motivation of Councilman Metzler or Councilwoman Cuccinello. Accordingly, the only person the jury reasonably could have concluded was motivated, in any manner, by the support Scully gave to Former Mayor Engelhardt was Mayor Criscitelli. This constitutes only one fifth of the members of the Borough Council who voted in favor of denying funds for the promotion. There was no evidence produced at trial to support the conclusion a majority of the Borough Council was substantially motivated by the political activities of Scully. In the absence of proof the majority of the Borough Council acted upon an impermissible motive, it must be determined whether the instant matter presented a sufficiently compelling case for departing from the requirement of proof as to the majority. As set forth in Scott-Harris, and adopted herein, liability of a legislative body pursuant to Section 1983, in the absence of proof as to the motivation of the majority of its individual members, must be premised upon: (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting the probable complicity of others