APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Hunter, Weis, and Becker, Circuit Judge.
In this suit for damages under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3), we hold that the members of a borough council, the mayor, and the borough attorney are entitled to absolute immunity for acts done in a legislative capacity. We also conclude that in a suit of this nature brought against a municipality and its office holders in their official capacities, the appropriate statute of limitations is that provided by state law for actions against governmental entities. Finding ourselves in agreement with the district court, we affirm.
The plaintiff's complaint asserted a claim for damages for wrongful discharge from his position as an employee of the Borough of Fair Lawn, New Jersey. Named as defendants were the mayor, members of the borough council, the borough attorney, the borough manager, and the municipality itself. The district court dismissed the case, holding that the individuals were immune and that the claim against the borough and the defendants in their official capacities was barred by the statute of limitations.
Plaintiff Archie Aitchison was appointed to the position of assistant building inspector for Fair Lawn in 1974. In September 1977, alleging aims of efficiency and economy, the mayor and council introduced an ordinance, effective October 30, 1977, that abolished the position of assistant building inspector. Plaintiff was informed of the borough's action in early September, and on September 27, 1977 the ordinance was passed on a second and final reading. That same day, Aitchison filed a request for a hearing with the Civil Service Commission. Plaintiff contended that his removal was politically motivated and in bad faith, serving as a subterfuge to avoid the civil service hearing process. A few weeks later, plaintiff also filed suit in the New Jersey Superior Court asking that the ordinance be declared unconstitutional.
The Civil Service Commission conducted a hearing and in October 1978 issued an order that plaintiff be reinstated to his position with back pay. The Commission found that the action of the borough was not in good faith and was an attempt to circumvent the state's civil service statute. In addition to back pay, the Commission allowed counsel fees in an amount equal to that plaintiff had earned in mitigation during the illegal layoff. The Commission's decision was affirmed by the superior court and the state supreme court denied certification.
On November 19, 1979, plaintiff filed his complaint in the federal district court seeking compensatory as well as punitive damages, and counsel fees. In the first of a series of rulings, the court determined that the individual defendants were entitled to absolute immunity as participants in the legislative process. The court reached this conclusion on the grounds that the members of council and the mayor had voted for the ordinance, and the borough attorney had advised the council with respect to the ordinance. With this ruling the court also dismissed the borough manager.
The claims against the borough and defendants in their official capacities were found to be governed by the two year statute of limitations in the New Jersey Tort Claims Act, N.J. STAT. ANN. § 59:8-8 (West 1982). After a hearing, the court determined that plaintiff was not entitled to tolling of the statute because of fraudulent concealment by defendants, or because plaintiff did not "discover" the existence of his action until he uncovered certain documentary evidence. Since the complaint had been filed more than two years after the cause of action accrued, the court dismissed the complaint as against the borough and its officials. When all of the plaintiff's claims had finally been resolved through this series of orders, the court ordered dismissal of the entire case.*fn1
Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), held that members of a state legislature have absolute immunity from suits for damages under sections 1983 and 1985(3). The Supreme Court reviewed the common law tradition of legislative freedom from damage suits arising out of official action and concluded that Congress did not intend to limit this immunity by its enactment of the civil rights statutes. The Court also observed that "legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence, but for the public good." Id. at 377. It matters not that the legislators acted in bad faith. "The claim of an unworthy purpose does not destroy the privilege." Id.
In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1971), this doctrine of absolute immunity was held to include appointed regional members acting in a legislative capacity for an agency created by a compact between two states. The Court concluded that the Tenney rationale was "equally applicable to federal, state and regional legislators," id. at 405, but the Court expressly left open the issue of absolute immunity for "individuals performing legislative functions at the purely local level," id. at 404 n.26.
Since Lake Country, however, six courts of appeals have held that members of local municipal councils or similar bodies are entitled to absolute immunity when acting in a legislative capacity. See Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir. 1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir. 1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1431, 75 L. Ed. 2d 791, 51 U.S.L.W. 3685 (1983); Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir. 1982); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981), cert. denied, 445 U.S. 907, 71 L. Ed. 2d 444, 102 S. Ct. 1251 (1982); Bruce v. ...