Full opinion text
OPINION HAROLD A. ACKERMAN, District Judge. I. INTRODUCTION The issue in this case, following a fifteen day bench trial, is whether the civil rights of plaintiff, Abad Perez, a former Jersey City Police Officer, were violated when he was demoted from the rank of plainclothes detective to uniformed patrolman because he had openly espoused the candidacy of a mayoral incumbent who was defeated in his bid for reelection in 1985. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the United States Supreme Court concluded that where the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved a public employee occupying such a position can be replaced based on political party or group affiliation. Here, as the overwhelming evidence shows, fealty to a particular candidate, rather than party, was the unconstitutional criteria utilized for reward or punishment. For the reasons stated infra, I have found that Abad Perez deserved the protection of the United States Constitution and defendants’ deprivation of such protection violated plaintiffs first and fourteenth amendment rights. Before reciting in detail my findings of fact and conclusions of law, I believe something should be said concerning what I perceive to be an unconstitutional misuse of a venerated political practice — the spoils system. In their respective opinions in El-rod and Branti, Justices Brennan, Stevens, and Powell eloquently dealt with this subject. Nevertheless, I believe that a few more words are in order. Historically, political patronage has played a role in the personnel appointments on the federal, state, and local levels. Indeed, as Justice Powell noted, “the use of patronage in the early days of our Republic played an important role in democratizing American politics.” Branti, supra, 455 U.S. at 522 n. 1, 100 S.Ct. at 1296 n. 1. See also S. Morison The Oxford History of the American People 736-37 (1965). With respect to the use of patronage on the federal level in the nineteenth century, Senator William Marcy of New York once stated that the politicians generally: “ ‘see nothing wrong in the rule that to the VICTOR belong the spoils of the ENEMY.’ Rotation in office was nothing new — Thomas Jefferson had removed 10 per cent of the officials in John Adams’ administration when he took office — but the phrase ‘spoils system’ had a dirty ring to it. When during his first eighteen months in office [Andrew] Jackson replaced about the same percentage of appointees, his opponents contended that he had ‘introduced corruption into the central government_’ The President never denied employing the system; he did deny that it was corrupt. Rotation in office, he explained, prevented government from becoming a continuous ‘engine for the support of the few at the expense of the many.’ ” 1 The American Heritage Pictorial History of the Presidents of the United States 205 (K. Leisch ed. 1968). As stated above, President Jackson never had any qualms about the spoils system: “His theory, stated in his first annual message, was that ‘the duties of all public offices’ were so ‘plain and simple’ that any man of average intelligence was qualified; and that more would be lost by continuing men in office than could be gained by experience. Naturally, when the Whigs won in 1840 they threw the Jackson men out, and when the Democrats came back under Polk, they threw the Whigs out; and so on. The consequences were more power to party organizations, diminishing prestige of the federal civil service, and decreasing efficiency. This sort of thing became so engrained in the American political system that, despite repeated reform legislation, it still continues. [With respect to such proposed reform, in] ... 1959 Senator Herbert H. Lehman of New York ‘called for the eradication of the spoils system in politics,’ especially the removal of the judiciary from ‘the control of party bosses.’ ” S. Morison, supra, at 426-27. Of course, the spoils system has not been confined to the federal government. In speaking of state politics, one author observed: “The state machine, a small number of great cities apart, provides the party with all the qualities out of which its character is moulded. It has one single aim — that of victory at the polls, and its interest in policies is given, not by what they are in themselves, but by the contribution they can make to victory. For victory means jobs for the henchmen of the party in the state; it means the chance of lucrative contracts; it means safeguarding its dependents, very often, from the necessity of earning a living in the ordinary way. The successful machine may put its own lawyers on the courts; it may secure the support of powerful business interests; still more, it may prevent those interests from helping the other side. The machine is essentially a broker of ideas; it sets itself the task of finding out what principles of action are most likely to win a majority. It has to find the right candidates for the right jobs; perhaps even more, it has to prevent the wrong candidates from being chosen. It must make the voters feel that their well-being is directly related to the victory of the party it controls; and to create that feeling it has to have an accurate sense of the influences which count for most in the state. It is not an organization for the discovery of ideas for their own sake; it is an organization of men who come out first for the winning ideas at the right time. Its business is thus to keep its finger on the pulse of public opinion; but it must be able, as it judges public opinion, to work out with precision the weight that attaches to the different elements out of which public opinion is compounded. It reaches out from the state boundaries to the smallest precinct in the area it seeks to capture. Those who control it must know not only how to win the support of the great corporation; they must know as well how to convince a group of poor immigrants, to whom citizenship has just been granted, that their friendship is imperative. They must be able to measure just what volume of reward, the support they gain requires without risking, in the gift of that reward, the good opinion of the mugwumps whose vote determines most elections. They must possess every type of political condottiere, from an orator like Choate to a drill sergeant like Mayor Hague of New Jersey. H. Laski, The American Democracy: A Commentary and An Interpretation 147-48 (1948). It can be stated with some confidence that Frank Hague was something more than a “drill sergeant”. As one historian recalled, in recounting the totality of the power Hague exerted as “mayor of Jersey City and ruler of New Jersey” for 30 years, Hague “bellowed once in a moment of unguarded candor_ T am the law.’ ” Fleming, The Political Machine II: A Case History “I am the Law”, in XX American Heritage 33 (June 1969), Mayor Hague engaged in what the author described as “an all-out assault on police laxity” to gain power, project a reformed image of the police department and “open an unparalled number of jobs [for] his dispensation”, ostensibly to stop the “moral decay of the police force.” Id. at 35. To this end, May- or Hague took several steps. For instance, “[a]s many as 125 men were put on trial in just one day for violating departmental regulations. Hundreds of police officers were ruthlessly demoted or dismissed. Into the decimated ranks Hague poured his tough young Horshoe followers, from whom he culled an elite squad of plain clothesmen, called Zeppelins, who wove a web of secret surveillance around the entire force.” Id. at 35. Thus a reading of that period of Jersey City’s history suggests that what happened to Abad Perez was merely a reflection of “business as usual” and that Abad Perez’s problems were part of a historical political continuum. It is difficult to disagree with Justice Powell’s observation that such “... patronage hiring practices sufficiently serve important state interests including some interests sought to be advanced by the first amendment to justify a tolerable intrusion on the first amendment interests of employees or potential employees”, Elrod, supra, 427 U.S. at 387, 96 S.Ct. at 2696 (emphasis added). Although “the Court’s constitutional holding ... [regarding the permissibility of patronage dismissals may] displace[ ] political responsibility with judicial fiat ...,” Branti supra, 455 U.S. at 534, 100 S.Ct. at 1303 (Powell, J. dissenting), the egregious facts of this case necessitates a finding that “[p]atronage, ... to the extent it compels or restrains belief and association, is inimical to the process which undergirds our system and is ‘at war with the deeper traditions of democracy embodied in the first amendment.’ ” Elrod, supra, 427 U.S. at 357, 96 S.Ct. at 2681, quoting in part Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). I find for the reasons stated below that the constitutional rights of Abad Perez were intruded upon intolerably. Upon review of the entire record, and evaluation of the credibility of all of the witnesses, the court enters the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). II. FINDINGS OF FACT A. Introduction. Plaintiff began serving as a patrolman in the Jersey City Police Department (“JCPD”) on October 12, 1979. Effective October 11, 1982, plaintiff was promoted to the position of detective, and received both a title change from police officer to detective, and a concommitant salary increase in the amount of approximately $1248.00. See Plaintiffs Ex. 18; Attachment A to Plaintiff’s Ex. 1. Prior to his 1982 promotion, plaintiff vigorously supported the 1981 election bid of Gerald McCann. The circumstances suggest that as a result of his efforts, he was rewarded with this promotion. Although the position of detective is not one that the New Jersey Department of Civil Service recognizes, JCPD views the position of detective as one rank superior to that of a uniformed patrolman, and a position to which an officer may ascend without taking a civil service examination. See Rules 229 & 525 of the Rules and Procedure Manual of the JCPD; Rule 3:182 of the Jersey City Police Manual; Record at 716, 747-48, 751, 831-32, 862 (Adams). Rule 229 provides that “[djetectives have authority over patrolmen at the scene of any crime.” In addition to this supervisory role, the members of the department perceive the position of detective as more pres-tigous, and seek to hold such a position “because it gives [an officer] more freedom to move around ... they’re in plainclothes ... [they] [carry] a gold badge ...,” and receive a greater salary. See Record at 629-30, 771, 778-80, 804, 854 (Adams). See also Record at 1008 (Healy) (stating that reassignment from the position of detective to patrolman constitutes a demotion because “when you have the plainclothes [you have a] better chance of getting money than if you’re out there in the blue.”). See also Record at 651 (Adams). Plaintiff continued in the position of paid detective until July 1, 1985. Effective on that date, plaintiff was demoted to the rank of patrolman. See Attachment A to Plaintiff’s Ex. 1; Plaintiff’s Ex. 33. As stated previously, at issue in this case is whether or not plaintiff was demoted in retaliation for having exercised his first amendment rights. To decide this issue, it is necessary to review not only plaintiff’s political activity but also the role that politics have played in the operation of the Jersey City Police Department. B. Police Department Patronage. As stated in the May 24, 1988 report of Paul DePascale, former Director of the Jersey City Police Department: Over the decades of its existence the Department and its personnel have repeatedly been used (sometimes willingly) and abused by politicians some of these abuses have been subtle, some blatant. The combined effect of this interference and influence has spawned nearly every problem affecting the Department today. How does a less qualified detective become a detective? How does a qualified detective wind up on patrol? How are promotions decided upon? Who works steady day tours with weekends off? Where were so many special units created? The answers to these questions needn’t be set forth herein since we all know them. If this, or any, Department is to be professionalized for the public good, then the ability of politicians to influence or direct police operations should be strictly limited to legitimate governmental concerns such as setting policy and funding its operations. A department which is responsive to political concerns cannot faithfully fulfill its duty to the public it is expected to serve. A police department, like an individual, cannot serve two masters. Fealty to one, must by definition involve disloyalty to the other. Political influence over, and interference with the Department must end if this effort is to be successful. Report of the Director of the Jersey City Police Department, at 12 (May 24, 1988) (hereinafter “DePascale Report”). See also id. at 9 (stating that one of the author’s goals was to reorganize the department “to eliminate the political interference that has had a strangle hold on the Department.”). Longtime department members as well as members of the community have observed the manner in which city politics have influenced the department’s operations. For instance, Lt. Healy, a policeman in Jersey City for over thirty years, observed that typically, after an election, an unspoken practice was implemented under which individuals were promoted and demoted throughout the detective — uniform ranks as either a reward or punishment for that individual’s political support. Record at 1013-14 (Healy). Lt. Healy stated that he observed this pattern repeatedly throughout his tenure in the department and believed certain promotions made following the election of former Mayor McCann, for example, constituted reward for political support. Id. at 1013-14, 1016. Although Lt. Healy did testify that while all promotions to detective did “not necessarily” constitute the repayment of a political favor, because some promotions were based on merit, he stated that at different points in an officer’s career political support for the “proper” candidate became important to career advancement. Id. at 1011-12, 1017-18. Walter Adams, who, during the relevant period served as Director of Police, and for the purposes of this opinion shall refer as such, also described the promotion/demotion process that existed in the department prior to 1985 as “somewhat political.” He recounted that certain individuals were promoted, demoted, or received assignments based upon who they supported for Mayor. Record at 626, 658, 661, 699 (Adams). Similarly, Jaime Vazquez, a Jersey City councilman stated that: Throughout the history of Jersey City, the police department has been a political arm. Record at 1021 (Vasquez). Glenn Cunningham, also a city councilman, observed that “there were a lot of appointments made to plainclothes detective units that were probably based on police officers who got it politically.” Record at 1118 (Cunningham). Councilman Cunningham further testified that, while some promotions were based on merit, others had been “tainted with some of the political” patronage that had characterized personnel decisions in the JCPD. Id. at 1118-19. Mayor Anthony Cucci also acknowledged the existence of politics in the police department. Record at 946 (Cucci). During the course of his testimony, the following colloquy ensued: Q. ... [A]re you aware or have you been aware of political interference with the Jersey City Police Department prior to your becoming Mayor in 1985? A. Yes. It was a long-standing practice. Q. It was business as usual? A. Prior to ’85, my election? Q. Prior to 1985, your election. A. Yes. Id. at 942. The Mayor’s recognition of the role that politics had played in the police department is further reflected in his joint decision with then-Director of Police Adams to implement: ... a reorganization plan that would hon- or on civil service lists, ..., but made promotions based on need rather than political desire or need, and the only time promotions are made, when there’s valid openings. Record at 937 (Cucci). Additionally, Mayor Cucci recognized that one of the main goals of the DePasquale Report was to eliminate the political interference that had existed for “a long number of years” in the JCPD. Id. at 943-44. Although defendants assert that promotions/demotions that occurred following the 1985 mayoral election were not the result of the political patronage system that had previously existed in Jersey City, the record does not support such a contention. For example, by his own admission, Director Adams, who contributed to the DePaseale Report, stated that the 1988 report incorporated the political characteristics of the department as they existed through May, 1988, and that the proposals therein were intended to reduce the political pressure that existed in the department as of that date. Record at 663-64 (Adams). The testimony of Councilmen Vazquez and Cunningham confirmed that the observations of the DePasquale Report — that politics influenced departmental personnel decisions — were valid prior to May 1988, not just prior to 1985. Members of both the city council and the JCPD believed that personnel assignments were politically based, even after the 1985 election. See, e.g., Id. at 666. In this regard, Councilman Vazquez was asked about the role of politics in the assignments made to members of the JCPD following the 1985 election: Q. During or after the 1985 mayoral campaign, did you ever hear anyone make statements about the assigning of Jersey City police officers in the Detective Division? A. Not to me, no, I did not. The transfers came just like they do every four years when there’s a new mayor. Record at 1053 (Vazquez), (emphasis added). See also Record at 1120-22, 1143 (Cummingham) (stating that certain promotions/demotions in 1985 were the result of political patronage and while he “believe[d] there was a lot less politics ... [he’s] not saying there was no politics “in the department after the 1985 election). Thus, the record supports a finding that politics indeed played a role in departmental personnel decisions. The record also supports a finding that the JCPD existed, in part, as a political arm through which rewards for political support were granted and retribution for political opposition were meted out. See Record at 191, 193-95 (Coyle); Record at 337, 341-47 (Redding-ton); Record at 657-58, 661-66 (Adams); Record at 867-68, 878 (Perez, V.); Record at 915-16, 942 (Cucci); Record at 1012-13 (Healy); Record at 1021, 1032-33 (Vazquez); Record at 1117-20 (Cunningham). While the record supports such a conclusion, the viability of plaintiff’s civil rights claim depends upon proof that political retribution was the catalyst of his demotion. To answer this question, it is necessary to examine plaintiffs political activities during the 1985 election. C. Plaintiffs Political Activity. The record reveals that the 1985 mayoral race between then-incumbent Gerald McCann and Anthony Cucci was hotly contested and that the supporters of these candidates campaigned aggressively and vigorously. During the campaign, plaintiff openly and actively supported the reelection bid of then-Mayor Gerald McCann. Specifically, plaintiff attended numerous rallies and meetings. As president of the Hispanic Law Enforcement Society of Hudson County, plaintiffs name and/or photograph appeared (1) in campaign literature and political advertisements that were published either by the McCann reelection committee and (2) in paid political advertisements in the Jersey Journal and other tabloids circulated throughout Hudson County. See e.g. plaintiffs Ex. 32. As explained below, plaintiffs support of the McCann candidacy was well known, and because of his actions he became a target for retribution. D. The 1985 Election. During the 1985 Mayoral campaign, Cuc-ci supporters gathered at the Anthony R. Cucci Association, located on Brunswick Street in Jersey City, and at other locations in the city and discussed, inter alia, the tactics and identities of individuals who supported the opposition. Record at 284-87 (Benitez); Record at 528 (Velazquez). Because of a concern about alleged police harassment of Cucci supporters by McCann supporters, Cucci campaign workers were instructed to report any improper police conduct to John Dougherty, a Cucci campaign worker. Record at 294-297, 305 (Benitez). Record at 1081-82, 1085 (Vazquez). The following colloquy ensued between Councilman Vazquez and counsel on this point: Q. So it would be fair to say that your campaign and that of Anthony Cucci in 1985 was intent on keeping tabs on any allegations of police harassment? A. Taking into consideration that the police department was being used politically against us, we — sure we — any campaign would keep a record of that. * * * * * * Q. [A]nd the campaign was keeping tabs of these allegations [of harassment]? A. That’s right. Q. How did they keep tabs of these names? A. Well, an example, I guess may have been [certain vehicles were stopped and drivers were arrested], the police officers’ names had to go on the reports. So, I mean, that’s how you get a person’s name. Q. Some sort of list was prepared? A. I wouldn’t reach that assumption, no I think that each case was handled individually. Id. at 1082-83. While Councilman Vazquez denied any knowledge of the preparation of a formal list of police officers who reportedly engaged in such conduct, id. at 1083-84, he acknowledged that the campaign workers reported incidents of harrassment and headquarters indeed kept tabs on when “police officers acting on behalf of the McCann campaign used their authority as police officers_” to advance their political views. Id. at 1084-86. Hence, through such reports of harassment, certain police officers were identified and apparently “black listed.” Record at 288 (Benitez), 319-21. See also id. at 288-89, 316 (stating that Benitez believed that Cucci campaigners had maintained a list of police officers against whom reprisals for alleged harassment would be taken.) The testimony on this point is as follows: Q. So you did discuss with Mr. Vazquez a list, correct? A. Yes. Q. Do you recall what he said to you about this list? A. He said that these people would be taken care of, you know, if and when they won. Id. at 321. With regard to the type of retaliation Cucci workers expected to take, the testimony of Mr. Benitez reads: Q. Did you ever hear Jaime Vazquez say where Abad Perez would be reassigned after Councilman Vazquez was elected? A. Yes. Q. When did you hear him say something? A. In the Cucci Civil Association when specifically, I don’t recall. But he would be walking the beat by the river. Id. at 322. See also id. at 289, 298-99. Capt. Victor Perez, plaintiffs brother, who is also a member of the JCPD, testified to a conversation between himself and state trooper Juan Perez, a staunch Cucci supporter, regarding an intent on the part of the Cucci camp to retaliate against those who supported the McCann candidacy by “trying to get certain people that supported Cucci to get certain spots.” Record at 880-82 (Perez, V.). Capt. Perez also stated that: As a matter of fact, [Trooper Perez is] the one that mentioned the list because he said, “we’re going to get those guys that are going against us. We’re going to make them walk the beat,” or something like that. Id. at 882. In sum, the above evidence clearly reflects that the Cucci forces kept tabs on the conduct of certain police officers who, as a result of their conduct would be subject to retaliation if Cucci were elected, in the form of a demotion from detective to uniformed patrolman, assigned to walk a lonely beat at a late hour. Record at 288, 290-91, 293, 296, 299, 305 (Benitez) (attributing such admissions to defendants Vazquez and Lopez). The record further reflects that Cucci workers identified plaintiff as an officer who had engaged in harassment, described him “as a person who could not be trusted” and workers were told “to watch out for him.” Id. at 296-97; Record at 1163 (Dougherty). Councilman Vazquez testified that he believed plaintiff had used his badge to intimidate voters and, hence, used his police power in political situations. Record at 1022, 1031, 1040 (Vazquez). Moreover, the record reveals that a number of Cucci's closest supporters and/or aides were aware of plaintiff’s aggessive support of the McCann candidacy, and openly discussed plaintiff’s opposition to the Cucci ticket. See id.; Record at 286-87, 296, 305, 310 (Benitez); Record at 882 (Perez, V.); Record at 528-29 (Velazquez); Record at 1140-41 (Cunningham); Record at 1208, 1219-20 (Lopez). In this regard, Mr. Benitez recalled that defendant Vazquez had: ... been very annoyed with the way Mr. Abad Perez was going around.... for Jerry McCann. Record at 296-298 (Benitz). Similarly, Councilman Cunningham stated that: Jaime Vazquez would often, in frustration, say to me, ‘Glenn, what can we do about this fellow?’ In reference to Abad Perez. And there wasn’t at that particular time anything we could do because of the fact that the department was being run by the campaign manager.... Record at 1141 (Cunningham). Apparently Vazquez harbored animosity toward plaintiff not only because of his aggressive support of Mayor McCann, but also because in lending such support, Vazquez believed Abad Perez betrayed the Hispanic community of Jersey City. Record at 1024, 1071-74 (Vazquez); Record at 288-89 (Benitez). During his testimony Vazquez attempted to soften his position, stating that he “was really referring to Hispanics who had betrayed the community by supporting the candidacy of Mayor McCann, not only [Abad] Perez.” Despite this caveat, the record reflects that shortly prior to the June 1985 runoff election between McCann and Cucci, a large group of supporters of both candidates converged in the downtown area of Jersey City. The confrontation between the groups was somewhat heated, motivating then-police officer Joseph Coyle to request police reinforcements. Plaintiff was one of the first members of the force to respond to the call. After plaintiff arrived at this impromptu political rally, then Councilman-elect Jaime Vazquez, wielding a bull horn, announced to the crowd that certain “traitor hispanic detectives”, of whom Vazquez considered plaintiff to be one, would end up not being where they [were at the time of the rally but rather would have to trade in their gold badges for a uniform and would have to walk a beat].” Record at 1015, 1074 (Vazquez). See also Record at 72, 235 (Perez, A.); Plaintiffs Ex. 20 (plaintiffs contemporaneous notes regarding the rally and the remarks that plaintiff attributes to Councilman Vazquez). Record at 532 (Velazquez) (recalling an argument between plaintiff and Councilman Vazquez at the June 8, 1985 rally). Mr. Velazquez stated in his affidavit: I remember an incident that occurred on Saturday, June 8, 1985 on Grove Street near Fourth Street in the Downtown section of Jersey City. I had been doing propaganda work on behalf of the Cucci ticket in the area and recall a crowd of people had congregated in the vicinity. Then Councilman-Elect Jaime Vazquez was there and I also saw Abad Perez, who at the time was a Jersey City Detective. I was doing my campaign work, but I distinctly recall that Mr. Vazquez made certain declarations over a bullhorn into the crowd to the effect that those detectives who were holding temporary detective badges would lose those gold badges once we got into office, that they would have to turn in their gold badges. Plaintiff’s Ex. 37, Affidavit of Hugo Velazquez, subscribed to August 3, 1987 at 113. I note that during the trial, Mr. Velazquez stated that the above statement was untrue. Testimony of Hugo Velazquez at 537. Despite the purported recantation, I believe the above statement was true. Mr. Velazquez’s recantation is unbelievable. Despite the fact that Velazquez attempted to recant this statement, Mr. Vazquez testified that, following an incident between plaintiff and a Cucci supporter, Velazquez stated that he would “like to see Abad Perez walking a beat somewhere on Ocean Avenue.” Record at 1044-45 (Vazquez). Vazquez interpreted this to mean that Velazquez would have liked to see plaintiff transferred from the plainclothes ranks as a detective, to the uniform ranks, as a patrolman, walking a beat. Id. at 1046. At trial, Mr. Vazquez stated that he “might have agreed with Mr. Velazquez’[s]” desire to penalize plaintiff for his political support. Id. E. Plaintiffs Demotion. Following the June 11, 1985 runoff election, Anthony Cucci was elected mayor. He and his administration were sworn in and assumed office on July 1, 1985. On that day, Edwin Healy, then a lieutenant in the department, received an order from his supervisor, then-Deputy Chief Fran Victor, to notify plaintiff that he had been demoted from detective to patrolman. Record at 1005-07 (Healy). As Lt. Healy put it, he informed plaintiff “[t]he axe has fallen, you’re back in uniform.” Id. See also Record at 79 (Perez, A.) (stating that he interpreted this statement to mean that the new city administration was “cutting off his head” because of his support for former Mayor McCann). According to the CS-6 personnel form, which Director Adams and Mr. Lopez signed, the demotion was effective July 1, 1985, at which time plaintiff had accumulated two years and eight months seniority as a detective. See Plaintiff’s Ex. 33. Interestingly, the word “demotion,” which had been typed on the document, had been crossed out in black pen, and the word “returned” had been handwritten above it. Notification of plaintiff’s demotion apparently came more swiftly than normal, and, as will be explained infra, occurred without review of his personnel file and without explanation. Record at 89-90 (Perez, A.); Record at 1215-16, 1230-32 (Lopez); Record at 681, 697 (Adams). Record at 1010 (Healy). Director Adams explained that plaintiff, along with twelve other detectives, were purportedly reassigned and received con-commitant salary decreases pursuant to a program providing that detectives with less than four years experience as Jersey City patrolman prior to achieving rank of plainclothes detective were to be returned to a uniformed position. Record at 632, 639-40, 766-67 (Adams). Adams stated that by requiring an officer to accumulate four years of service before becoming eligible for á promotion, and the commensurate pay increase, he hoped to eliminate a situation in which less experienced officers held superior positions and received greater pay than those with more years of service on the force. Id. at 632, 638-39, 645, 765. Director Adams further stated that the four year criteria was primarily set to justify the receipt of additional pay rather than to ensure that officers in supervisory positions had more experience than those officers who they were responsible to supervise. Id. at 847-49. Indeed, he testified that “experience is not the criteria for the reassignment. The criteria for the pay is the four years.” Id. at 849. Adams explained that he selected a period of four years based on the four-year salary scale set forth in the union contract and upon personal experience. He applied the policy retroactively to those officers who lacked the four-year requisite experience. Id. at 683, 830-34. Adams implemented the program on his first day in office, without discussions with the Police Officers Benevolent Association (“POBA”). Adams stated, however, that prior to assuming his duties as Director, he discussed the program with Captains Frank Pajewski and Frank Sadler, Deputy Chief Carter, and Mayor Cucci. Id. at 683-84. Significantly, no written document exists that memoralizes the four-year criterion upon which promotions to the rank of detective were allegedly to have been based after July 1, 1985. Id. at 683-84, 833. He contended that since plaintiff failed to meet the four-year criterion, he was demoted and his salary was decreased in the amount of $1656.00. See e.g. id. at 636-37; Stipulation of Facts in Pretrial Order at 35. Plaintiff was apprised of his demotion on Adams’ first day in office. Prior to this date Adams admits that he did not have access to plaintiffs personnel file, did not review same prior to ordering plaintiffs demotion, and admittedly determined that plaintiff fell below the four year experience requirement based only on his personal knowledge of plaintiffs tenure in the department. Record at 694-97, 806, 817 (Adams). Plaintiffs “individual work performance was not taken into consideration as a reason for his reassignment from detective to patrolman.” Defendants’ Response to Plaintiffs Interrogatory No. 3. See also Defendant’s Response to Interrogatory No. 7 (stating that “a performance evaluation was not a factor in the decision to reassign the plaintiff....” In fact, the Director stated that he found plaintiff to have been a good officer. Record at 824, 828-29, 832 (Adams). Despite assertions that plaintiff’s demotion was based on his failure to meet the four-year criterion, I find that the inconsistency with which the standard had been applied casts grave doubt on the veracity of that explanation for plaintiff’s demotion and, conversely, supports a conclusion that the criterion was mere subterfuge for the true reason for the personnel action. The record clearly reveals that Adams made “quite a few exceptions” to the four-year criterion during the period following its implementation. Id. at 814. For instance, several officers, such as Officers Wolfe, Sabo, Camacho, and Sanchez, were initially demoted for failure to meet the four-year criterion, but were thereafter promoted to detective, albeit without the commensurate pay differential, before gaining the necessary experience to meet the four-year criterion. Id. at 641-45, 653-55, 769-73, 794, 811-14, 1262-71. Apparently, Adams believed that these assignments were consistent with his four-year criterion since these individuals did not receive additional salary see id. at 858-59, and hence these individual held “only” the status of unpaid detectives. While he stated that those with less than four years experience were not entitled to a promotion as a “paid detective” , he admitted that the work that each type of detective performed and the authority each had was identical. When asked why he did not make a similar exception for plaintiff, Adams stated that he did not do so “because [he] knew [plaintiff] was going to another town to try another department” in California. Id. at 814. See Discussion infra. In light of the inconsistency with which the criterion had been applied, I am persuaded that the four-year criterion was selected because defendant wanted to demote individuals who had been appointed during the McCann era, thereby prohibiting these individuals from obtaining the “perk” of tenure in the position of detective by amassing five years experience, see id. at 659, I find that the four-year criterion provides only a cover story, but did not reflect the true basis upon which defendants decided to demote plaintiff. The record clearly supports plaintiff’s contention that he, and other McCann supporters were demoted because of their political affiliation with a losing candidate, Record at 116-20 (Perez, A.); Record at 1236-40 (Lopez); Record at 867 (Perez, J.), and that consistent with the “standard operating procedure” of city politics, the detective division became staffed with those who had supported the winning mayoral candidate. See Testimony of Benjamin Lopez at 1233-34. See also Record at 886 (Perez, V.) (stating that “Because I knew Abad was on the wrong side, he was going to get dumped.”). Following the demotion, Capt. Victor Perez approached Councilman Cunningham and Vazquez to see if plaintiff could be reinstated to the position of detective. Victor Perez stated that Vazquez was well aware of plaintiff’s active support of McCann, and that in Vazquez’s judgment, plaintiff had done “too many things” in support of the losing candidate such that “he could not be helped.” Record at 887-89 (Perez, V.). See also id. at 890 (reporting that Councilman Cunningham recommended that plaintiff “serve a penance” and “lay low for a few months” prior to reentering the ranks). According to documents that pertain to the terms and conditions of employment, plaintiff was entitled to forty-eight hours notice of his change of assignment prior to the start of same “whenever possible to do so.” See Article 24 of the collective bargaining agreement between the City of Jersey City and the Jersey City Police Officers Benevolent Association. Further, his reduction in status must have been for “just cause.” See Rule 723 of the Rules and Regulations Manual (effective in 1985), which provides: Any permanently employed officer or employee who receives a fixed annual salary from the municipality shall not be ... reduced from office or employment therein except for just cause and then only after written charges and complaint shall have been preferred [sic]. See also Record at 711-12, 723 (Adams) (explaining that the Rules apply to plaintiff, and acknowledging that plaintiff received a fixed salary from the municipality). In addition, pursuant to departmental rules, plaintiff was entitled to certain procedural protections, such as presentation of a written complaint, or notice of the grounds for the personnel action. See e.g. Rule 725. The rules further provide that absent a hearing on the complaint, the employee must be reinstated to the position from which he had been removed. See Rule 728. The fact no one else received a hearing following removal, does not excuse defendant’s apparent noncompliance in plaintiff’s case. Record at 715, 1261 (Adams). Defendants’ failure to comply with the provisions of these rules, and in particular their failure to articulate a just cause for plaintiff's demotion, id. at 681-82, undermines the truthfulness of the rationale offered to explain plaintiff’s demotion. The absence of the true explanation is of no moment, however, since the reality was that plaintiff was a victim of the spoils system — his demotion was based on his failure to support the victor, to whom the so-called “spoils” belonged. As a result of his demotion, and instructions to turn in his shield, plaintiff submitted the following memorandum: FROM: Detective Abad Perez File # TO: Chief of Police John Fritz Date July 3, 1985 SUBJECT: Demotion — To Police Officer Sirs: This is to advise you that I am surrendering, (as ordered by Lt. Healey) my Detective Shield # 78, under official protest. s/ Respectfully, Detective Abad Perez #78 cc: Director Walter Adams Public Safety See Plaintiff’s Ex. 34. See also Record at 81 (Perez, A.). Adams admitted knowledge of plaintiff’s protest in July, 1985. See Record at 815 (Adams). Prior thereto, by memorandum dated July 2, 1985, plaintiff filed a grievance regarding his demotion with Ron Buonocore, POBA President, informing Mr. Buonocore that: I am formally filing a grievance with our Union and request that they represent me in this action. On July 2nd, 1985 I was called by Lt. Healy (Deputy Chief’s Office) and told to respond on July 3rd, 1985 to Chief Fritz’s Office to turn in my Detective Shield #78. On July 3rd, 1985 I responded to Chief Fritz’s Office (with my attorney) and turned in the Detective Shield, along with an official protest. The demotion to Police Officer was improper and I request that the Union do all they can on my behalf. If the Union has an “Official” stand on the issue of demotion I would like to have it in writing. Respectfully, s/ Abad Perez P.O. Abad Perez # 2121 See Plaintiff’s Ex. 35, at 2. Mr. Buonocore then notified late Chief of Police John Fritz, by letter dated July 8, 1985, of plaintiff’s grievance: To: Chief of Police John Fritz DATE: July 8, 1985 EMPLOYEE’S NAME: Abad Perez SHIELD#: 2121 and all other Det’s UNIT: N/A TITLE: P.O. that it may effect. NATURE OF GRIEVANCE: Whereas, the City of Jersey City has violated the contractual agreement between the Jersey City Police Officers Benevolent Association and the City of Jersey City by demoting Abad Perez and other Detective’s without just cause to the rank of Police Officer. CONTRACT VIOLATION: Article XXXIX, II, IV, and any and all other articles, State Statues [sic], Civil Rights and violations that may apply. SIGNATURE OF AGGRIEVED: Attached. SIGNATURE OF POBA PRESIDENT s/ Ron Buonocore Ron Buonocore C.C. Mr. David Solomon, Esq. P.O. Abad Perez Director of Labor Relations, Lou Ip-politto Plaintiff’s Ex. 35. Moreover, by letter dated September 30, 1985, the Claims Administrator of the City of Jersey City received a copy of plaintiff’s notice of claim for damages against the City. See plaintiff’s Ex. 36. In his notice, plaintiff specifically delineated the action that gave rise to his claim (i.e., demotion from detective to patrolman without explanation or cause) and those who plaintiff alleged to have been at fault (i.e., Director Walter Adams, late Chief of Police John Fritz, then-Lieutenant Edwin Healy, Councilmen Glenn Cunningham and Jaime Vazquez, and Mayor Anthony Cucci). Thus, while defendants assert that they were unaware of plaintiff’s claim that he was unlawfully demoted until September, 1986, the above reflects that municipal officials were notified of plaintiff’s displeasure immediately after his demotion and thus well before the date upon which plaintiff instituted the present civil rights action. Despite such notice, defendants never investigated his claim. See e.g. Record at 814-24 (Adams); Record at 929-30, 946-47 (Cucci). Following his demotion, on or about July 22, 1985, plaintiff commenced employment with the Los Angeles Police Department (“LAPD”) while categorized as on vacation from the JCPD. Apparently, in 1976, prior to his employment with the JCPD, plaintiff applied for a position with the LAPD. Record at 134, 209-10 (Perez, A.). In 1982, plaintiff received an offer, which he declined because he was satisfied with his position in JCPD. Id. at 134. In April, 1985, plaintiff contacted the LAPD while on a visit to California to determine whether or not his application was still valid. Id. at 210-11. He was informed that it was and, thereafter, in July of that year, he received a letter from the LAPD in which he was invited to join a new training class that was scheduled to begin on July 22, 1985. Id. at 210-11. Thus, after his July 1, 1985 demotion, he left Jersey City and joined the LAPD. By memorandum dated October 28, 1985, plaintiff, who at that point had practically depleted his accumulated vacation time, requested a leave of absence from the Jersey City Police Department: ... to determine if I will return or retire from the department. This is based on the fact that I was unlawfully demoted to the rank of patrolman. Plaintiffs Ex. 5. He was granted such a leave, and remained with the LAPD until July, 1986, using the vacation time he had accumulated and the period of this leave of absence. Plaintiff testified that in mid-1986 he sought to return to the JCPD because he was on the sargeanf s list and hoped that he “did enough penance” to return to the force. Record at 136-37 (Perez, A.). All of these factors demonstrate that while his demotion apparently coincided with the receipt of the invitation to join the training class for the LAPD, and his decision to move may have been made easier, and in this way may have been connected with the demotion, I do not find that plaintiff was forced to leave the JCPD. I so conclude because on July 30, 1986, plaintiff returned from his leave of absence and resumed service as a patrolman in the JCPD at a salary of seventh year officer and remained on active duty until March 1, 1988, on which date he began a paid sick leave, which he claims was the result of job-related stress. He continued on paid sick leave until his retirement on June 1, 1988. Id. Before reaching my conclusions of law, I shall highlight portions of the testimony of the key players and enter my credibility findings. F. Key Players. 1. ABAD PEREZ Mr. Perez testified that as a uniformed police officer he had supported the 1981 candidacy of Gerald McCann. In response to the question, “so he gets elected and you became a detective?,” he answered, “That’s correct.” He described the position of detective as “prestigous” with numerous advantages, financial and otherwise. Thus, it was clear to me that he used his membership in and position as President of the Hispanic Law Enforcement Society to promote its goals and himself, through his support of McCann. The evidence indicates that his highly publicized political embrace of McCann’s candidacy in 1981 and 1985, however, ultimately proved to have dire consequences for him at the hands of Mayor Cucci and his chief supporters. Apparently the plaintiff was viewed as a Judas within certain segments of the Hispanic community that had thrown in their lot in support of Cucci. Councilman Vasquez made this abundantly clear during his testimony (see infra). Relatedly, after being present at a particularly volatile confrontation between McCann and Cucci supporters, plaintiff filed a police report which attributed to Councilman Vasquez the following statement: “Once we are elected we are going to take those traitors who McCann made detectives, those Hispanic detectives and take their gold badges away from them and put them in uniforms and have them walk a beat, so that they learn their lessons.” Perez testified that Mayor Cucci was sworn in on July 1, 1985. On that same day, plaintiff received a call from a Lieutenant Healy who instructed him to go to the Chiefs Office and “surrender [his] detective badge and pick up the patrolman’s badge”. According to the plaintiff, Healy said “The axe has fallen.” I asked him, “How did you interpret that?” He said: “Well that ... they were cutting my head off because I was a McCann supporter. That was my understanding of it.” In his recitation of his rise and fall, in the main I found the plaintiff to be a credible witness. I was less impressed with his recitation of events relating to his post-demotion activities, particularly relating to his move to California and his emotional reaction to his firing. Further, I have no doubt that he was politically street-wise and probably knew that his actions would bring dire consequences. However, the constitution does not only protect the naive. 2. JAIME YASZQUEZ Councilman Vazquez was elected to office on May 14, 1985. When I asked him whether he had the power to dispense patronage he replied in part: Police department is a lot different because you have a union to the contract. And it might politically naive, your Hon- or, I know that you have heard a lot from the Mayor and from both sides, and I want to say to you that to some people it might sound politically naive because some people expect you to produce politically, but I never ever had a conversation with Walter Adams or the Mayor about the promotion or demotion of any detective in the Jersey City Police Department. ... * * ij! }fc 5(< # ... that’s not my style of politics. * * * * # # ... I consider myself a just man. But Officer Perez was a very extremist supporter of McCann. Q. You mean the plaintiff here? A. Yes. Harassing our workers, intimidating our workers and our supporters and using his position as a police officer and his authority as police officer and his badge to accomplish his political goals. Now, I don’t mind a person exercising their political right. One of my beliefs, when I’ve flunked constitutional law when I was in college ... having gone through this course twice, I learned to appreciate that Constitution more. I don't mind a police officer exercising [his] right to become politically involved in a campaign but I do object very strongly to a person using [a] political position to harass, intimidate and attempt to disenfranchise a group of people who are trying to exercise their constitutional rights also. Q. Did you find it — assuming what you say is true, did you find it ironic a police officer who is Hispanic was doing this to, from what I gather, to Hispanics? A. Your Honor, whatever I can say here is either based on my own personal knowledge or on my knowledge from other people. Officer Perez is one of the most disliked people. No other police officer would serve as his partner. He had to be assigned to his own car by himself because people knew he was very, very extremist while he was on duty. It’s embarassing to a certain extent. The police department won’t say it, but the code of silence and brotherhood, they have to protect each other. Officer Perez has a very long track record in the community of assaulting people, and it’s well-known. That’s why he was having his problems. And I observed him on certain occasions and the way he acted. [For instance] ... a woman had Officer Perez draw his weapon on Mr. D’Al-essandro because Mr. D’Alessandro didn’t have a license plate on the front of his car when Officer Perez was off duty, is the kind of example of the kind of thing he would do as a police officer. But it is a well-known fact from among the Jersey City Police Department that Abad Perez was not a good police officer, he was not well-liked, he endangered the lives of ... other police officers by acting the way he did. If he stopped 15 people, he wanted to arrest 15 people. That’s the kind of person he was. And during this campaign, he directed himself toward us. He never was for the Hispanic community. I think it was Mario Benitez that showed ... his badge ... to Joe Gonzalez at the river. And Joe Gonzalez related back to me two or three years ago, when he occurred. He had been arrested for drunken driving and taken to the precinct. When Officer Perez came in, he got in some sort of discussion with Officer Perez and hurt Joe Gonzalez. So he had a long track record of this kind of action. Being a police officer, exercise your right, but don’t abuse people like that. I very much object to that. Despite these allegations, the record indicates that the plaintiff was not charged with the sort of conduct of which Mr. Yas-quez accused him. The evidence is compelling that the witness felt strongly about the plaintiff and regardless of what grade he ultimately received in constitutional law, his actions alone and with others, in sanctioning Perez, reflects insufficient appreciation of constitutional values. I would flunk him again. His testimony left a lot to be desired. 3. ANTHONY R. CUCCI I found the Mayor to be a very engaging personality. He professed no knowledge of any list of Jersey City police officers marked for retribution. He said he knew what had happened in 1981 under the McCann regime, but had no knowledge of the “ax falling” on Perez. In this regard, he said “there’s a big difference between Gerald McCann’s philosphy of administration and mine.... I have absolutely no knowledge of this incident. None whatsoever. I have no part in it. I would not have any part in it.” He contended that Director Adams had complete discretion to act with respect to Jersey City police officers and specifically, he denied telling Adams “what he should do and should not do.” During the trial I asked him if he was “aware, while you were campaigning, that the plaintiff in this action was an avid supporter of your opponent, sir?” He answered: “No, I paid no — I paid no attention. I did not.” He further stated: “I’m not going to be blemished, I’m not going to be stigmitized that I’m part of the old system. I proved I'm not from the very first day and prior to my winning.” On cross-examination he was asked: Q. It was your policy not to take care of anybody, whether negatively or positively, because of their support or nonsupport of your candidacy, correct? A. That’s correct. * jjc * j(t afc jft ... I never ordered anybody to be punished on the police department. I have never, never done that. In answer to a series of questions that I put to him, Mayor Cucci conceeded: 1. that it was conceivable that others in his administration had punished the faithless without consulting him, and 2. that he may have been “remiss” in not instructing his staff that reprisal policies were not to be condoned. While I believe that the Mayor never gave a direct order to demote the plaintiff for political reasons, I find what he did do was to stay above the fray, knowing that others in his administration were committing political carnage in the police department in violation of law. He saw, heard, and knew what was going on but he adopted a “hands-off” policy. Hence, by his silence he acquiesed in the actions of others. His attempt to pursuade the court that a new breeze blew into the city hall on July 1, 1985, purging the body politic of pernicious practices affecting the Jersey City Police Department, is unavailing. The air was fetid. It was sadly, business as usual in Jersey City. 4.WALTER ADAMS As noted previously, Walter Adams is presently Chief of Police. He had been appointed Director of Public Safety on July 1, 1985. He characterized the plaintiff’s transfer to the uniformed ranks in July 1, 1985 as being a “reassignment,” rather than a demotion. While he personally did not perceive any real advantage in the position of a uniformed officer over a plainclothes detective, he conceeded that affected police officers believed that the extra money and “freedom to move around,” made the job, comparitively speaking, more prestigous. He explained his “reassignment” of Perez and others was because an officer with less than four years experience as a patrol officer did not have the necessary experience to justify the salary of a paid detective with respect to the duties of a paid detective, his testimony reveals: Q. Does a paid detective do work that is substantially different from the work that an otherwise unpaid detective does? A. No he does not. Q. Same exact work. A. That’s correct. In light of this, and other testimony, I find that Adams’ purported rationale for the implementation of the four-year criterion is seriously flawed and unpersuasive. As I have concluded elsewhere, the engine of politics propelled this course of action. Director Adams struck me as a decent professional who had devoted almost a quarter of a century in thé service of the city’s police force. He came up through the ranks. He had not been a fierce Cucci partisan. In fact, his activity in this regard had been relatively sparse. From the evidence it appears that his political sponsor had been Council President Glen Cunningham. I had the distinct feeling that in July, 1985, Adams was thrust into a position for which he may have been professionally prepared, but not politically. He described it as “a nutty time”. I find that he was deluged with political requests from his benefactors, one of which had a highly adverse effect on Abad Perez. One can appreciate this dilemna and his desire to carry on his duties in a professional manner while not being ungrateful to the political piranhas. But weighing Mr. Perez’s constitutional rights against Chief Adams’ discomfort does not permit me to view his actions with approbation. 5.MARIO BENITEZ Mr. Benitez is a disappointed job seeker who actively campaigned for Mayor Cucci in 1985. The main points of his testimony were: 1. That during the campaign he had been at the Cucci Association headquarters; 2. While there he had observed Cucci, Vasquez, Adams, a state trooper named Juan Perez, Ben Lopez and Walter Adams; 3. He had seen a list with plaintiff’s name on it and that Vazquez said plaintiff and those on the list “were to be taken care of” after the election; 4. That Cucci had orally confirmed that retribution would take place; and 5. After the run-off election, Councilman Vasquez had displayed Perez’s gold badge as proof that he was now “walking a beat.” The witness obviously had an axe to grind. But accounting for his bias, Mr. Benitez has convinced me that points 1, 2 and 3 were true. I am not persuaded, however, of the truthfulness of points 4 and 5. 6. BENJAMIN LOPEZ Mr. Lopez, a former councilman, is Business Administrator for the City of Jersey City. Mr. Lopez was a very intelligent witness who steadfastly denied any knowledge of why Perez had been demoted, the practice of patronage itself, insofar as it impacted on McCann supporters in the JCPD in 1985, or the existence of any “hit list.” He testified that signing the CS-6 form, which formally returned Perez to the uniformed ranks was something so mundane that he could not recall doing it. He claimed that as a member of candidate Cucci’s inner council he confined himself prior to the May election to “evaluating the results of the debates, what occurred at those debates, the extent of how the literature either was being produced and put out, the need for people to be out there distributing our literature, what kind of human relations work needed to be done. That kind of discussion.” Even after the May election he denied having any knowledge of or discussing a list of McCann supporters that appeared in an advertisement in the Jersey Journal. He said “it wasn't cogent to our discussions.” Mr. Lopez’s testimony strained my credulity. A consúmate insider, he was rewarded handsomely by Mayor Cucci for his efforts. I find that he knew exactly what was going on with respect to the likes of Abad Perez. There is no doubt in my mind that when he affixed his signature to Perez’s CS-6, making plaintiff’s demotion retroactive to July 1, 1985, he knew exactly what he was doing and to whom he was doing it. III. CONCLUSIONS OF LAW A. Section 1983 Claim Section 1983 provides that: Every person who, under the color of any statute, ordinance, regulation, custom or usage of any state, ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. To state a claim for relief under § 1983, the conduct complained of must have been (1) committed by an individual or entity acting under the color of state law and (2) must have deprived the plaintiff of a right or privilege secured by the constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981); Colburn v. Upper Darby Twnshp., 838 F.2d 663, 667 (3d Cir.1988) cert. denied, — U.S. -, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989); Riley v. Jeffes, 777 F.2d 143, 145 (3d Cir.1985). In this action, plaintiff challenges the conduct of Mayor Anthony Cucci, Councilman Jamie Vazquez, City Business Administrator Benjamin Lopez and Chief of Police Walter Adams, all of whom are employees and/or officials of the City of Jersey City. Generally, ... a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. West, supra, 108 S.Ct. at 2256. There is no doubt that personnel decisions within the JCPD are made “by virtue of state law,” and that those who make such decisions are “clothed with the authority of state law.” Id. Clearly, defendants are all public employees who had positio