Opinion
DOCKET NO. A-6043-11T4
06-17-2015
IN THE MATTER OF REQUEST FOR DEFENSE AND INDEMNIFICATION IN JAMES BAYLISS v. NEW JERSEY STATE POLICE, TROOPER R. WAMBOLD, JR., individually and in his capacity as a member of the New Jersey State Police, and TROOPER (FNU) JUCKETT, individually and in his capacity as a member of the New Jersey State Police.
Matthew R. Curran argued the cause for appellant Richard Wambold (Sciarra & Catrambone, LLC, attorneys; Mr. Curran, of counsel and on the brief). Susan M. Scott, Deputy Attorney General, argued the cause for respondent State of New Jersey, Office of the Attorney General (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Scott, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden and Tassini. On appeal from the Office of the Attorney General, Docket No. 11-CV-0890. Matthew R. Curran argued the cause for appellant Richard Wambold (Sciarra & Catrambone, LLC, attorneys; Mr. Curran, of counsel and on the brief). Susan M. Scott, Deputy Attorney General, argued the cause for respondent State of New Jersey, Office of the Attorney General (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Scott, on the brief). PER CURIAM
Richard Wambold, a New Jersey State Police (NJSP) Staff Sergeant, appeals from the Office of the Attorney General's (OAG's) final administrative determination to revoke its defense of him in a civil case. R. 2:2-3(a)(2). OAG opposes the appeal and also moves for relief relative to appellant's filing of documents that OAG asserts are subject to the deliberative process privilege.
The issues relate to an incident involving James Bayliss, who brought a civil case in the Law Division, naming as defendants the NJSP, appellant, and another trooper. Appellant requested defense and indemnification and OAG undertook his defense in the Bayliss case, which was removed to federal district court. See N.J.S.A. 59:10A-1, -3. Thereafter, the NJSP investigated and brought disciplinary charges against appellant, alleging that he failed to de-escalate the confrontation with, and that he used an unreasonable amount of force on, Bayliss. Appellant's private counsel asserted that OAG had a conflict of interest and demanded that OAG provide him with appellant's file in the Bayliss case. In a five-page letter to appellant, OAG detailed the bases and reasons for its finding that there was a "conflict of interest" within the intent of the Tort Claims Act (TCA) and its final administrative determination to revoke its representation of him in the Bayliss case. N.J.S.A. 59:10A-2(c). Appellant appeals from OAG's final decision. OAG submits that appellant has not shown that its decision was unfounded in law or in fact.
After OAG revoked the defense, the Bayliss case settled, so there is no longer a conflict of interest in that case. Under the TCA, the Attorney General may also refuse to provide a defense "if he determines" that the public employee's act was the product of "willful misconduct or actual malice." N.J.S.A. 59:10A-2(b). However, OAG has not yet made a final administrative determination in that regard.
Additionally, on appeal for the first time, appellant claims that N.J.S.A. 53:1-30 requires the Attorney General to provide for his defense in the Bayliss case. The OAG has also not made a final administrative determination based on that statute.
OAG moves for an order striking appellant's brief and appendix. OAG filed a statement of items comprising the record on appeal (SICRA). R. 2:5-4(b). The SICRA did not include NJSP Review Sheets, in which NJSP staff provide commentary, opinions and recommendations to assist the NJSP Superintendent in a determination regarding possible disciplinary action. OAG asserts that the Review Sheets are subject to the deliberative process privilege, because their disclosure would discourage staff from offering candid assessments and chill the NJSP's internal deliberations. Review Sheets related to NJSP disciplinary action against appellant were inadvertently released and received by appellant's private counsel who filed them in the Bayliss case. OAG moved for relief and, as the federal court found, OAG promptly and reasonably notified appellant's counsel of its objection to his filing the Review Sheets and appellant has not demonstrated need for them sufficient to overcome the State's interest in confidentiality. Accordingly, the federal court ordered appellant's counsel to refrain from further disclosure of the Review Sheets. In this appeal, appellant's counsel did not move for an order to settle or supplement the administrative record to include the Review Sheets, see R. 2:5-5, and without approval here, appellant's counsel included the Review Sheets in appellant's appendix. R. 2:6-1. Accordingly, OAG requests the order to strike.
The Bayliss Incident and Case
On or about May 16, 2009, in Mansfield Township, appellant and trooper Keith Juckett, investigating a motor vehicle accident, came upon Bayliss in his motor vehicle. The troopers allege that Bayliss was intoxicated and that he refused their commands. The troopers arrested Bayliss and transported him to a NJSP vehicle. A NJSP mobile video recorder (MVR) recorded the incident. The troopers asserted that they acted reasonably in controlling Bayliss. Bayliss alleged that the troopers subjected him to excessive force and that he was injured.
In 2011, Bayliss filed a Law Division complaint, naming as defendants the NJSP, appellant and Juckett. In the complaint, Bayliss alleged that appellant unjustifiably beat him, injured him, arrested him, and imprisoned him. Bayliss asserted that the NJSP failed to properly train its officers and deprived him of his lawful rights and he claimed damages. See N.J.S.A. 10:6-2. Appellant and Juckett denied wrongful conduct and requested that the Attorney General provide defense and indemnification. See N.J.S.A. 53:1-30; N.J.S.A. 59:10A-1.
By letter dated February 9, 2011, OAG notified appellant that it would defend him, subject to exceptions such as a conflict of interest. See N.J.S.A. 59:10A-2(c). Appellant alleges that a Deputy Attorney General (DAG) advised him that the MVR showed no misconduct on his part. OAG, by way of outside counsel, also provided a defense for Juckett. See N.J.S.A. 59:10A-5.
The Bayliss case was removed to federal district court, where Bayliss filed amended complaints and OAG filed answers and defenses on behalf of appellant.
NJSP's Review and Determination
to Bring Disciplinary Action
The NJSP conducted an internal affairs review of the incident. On or about June 3, 2012, a spokesman for the Attorney General announced that appellant and Juckett had violated the NJSP's rules and regulations related to use of force and discipline. See N.J.S.A. 53:1-10. The NJSP superintendent signed an administrative Charge and Specification and, on or about June 4, 2012, the NJSP served appellant with that document.
The Charge and Specification state that the Attorney General's "Use of Force Policy" and the New Jersey Code of Criminal Justice allow State Police to use force only when necessary, only to the extent it is necessary, and only when its use is lawful and reasonable in relation to the harm the members seek to prevent. The Charge and Specification state that appellant failed to de-escalate and that he used an unreasonable amount of force on Bayliss. The Attorney General's Office of Law Enforcement Professional Standards prosecutes such disciplinary matters.
Appellant requested an administrative hearing, which has not yet been held.
Appellant's Counsel's Assertion of Conflict of Interest
and Demand for Appellant's File,
and OAG's Final Decision
In a letter dated June 14, 2012, appellant's counsel wrote to DAGs Vincent Rizzo and Christine Glogoff that the Attorney General's spokesman's announcement was directly contrary to prior statements made by a DAG, that it prejudiced appellant, that it constituted a "severe conflict of interest" (relative to the Bayliss case), and that appellant wanted his "file." Appellant's counsel further wrote that, substantively, Bayliss, either due to disability and/or being under the influence, repeatedly failed to comply with the troopers' directions, that drug paraphernalia were in Bayliss's vehicle, and that a DAG had (previously) advised appellant that the MVR showed no unreasonable conduct by appellant. He further wrote that the Attorney General's announcement and charges compromised appellant's right to a fair trial and, despite the Sixth Amendment's reference only to "criminal prosecutions," U.S. Const., Amend V., he further wrote that the Attorney General had compromised appellant's Sixth Amendment right to assistance of counsel.
Juckett did not assert a conflict of interest, accepted defense with OAG retention of exclusive control over the litigation consistent with N.J.S.A. 59:10A-4, and OAG continued to provide his defense through retained private counsel.
By letter dated July 6, 2012, Assistant Attorney General (AAG) Jerry Fischer notified appellant that OAG had decided to revoke its representation of him in the Bayliss case. The AAG recounted appellant's request for defense and indemnification and OAG's notice that, based on the information available at that time, it would represent him, subject to exceptions such as a conflict of interest. See N.J.S.A. 59:10A-2(c). The AAG listed the documents reviewed by OAG in making its determination. The Review Sheets were not among the bases of OAG's determination. The AAG recounted that the NJSP had charged appellant with violation of the NJSP rules and regulations by excessive use of force. More particularly, the AAG cited the Charge and Specification that appellant failed to de-escalate and continued to use an unreasonable amount of force on Bayliss. The AAG cited Prado v. State, 186 N.J. 413 (2006), for the principle that the Attorney General "must provide a defense to a state employee who requests representation unless the Attorney General determines that it is more probable than not that one of the three exceptions set forth in N.J.S.A. 59:10-2 applies." Id. at 427. The AAG wrote that continued representation of appellant created an irreconcilable conflict of interest under N.J.S.A. 59:10A-2(c). The AAG wrote that the denial of representation was the final administrative determination, immediately reviewable by the Appellate Division.
Appellant filed this appeal from OAG's final decision.
Appellant's Counsel's Receipt of Review Sheets, OAG's Notice of
Confidentiality and Privilege, Appellant's Counsel's Filing of
the Review Sheets, and OAG's Request for Relief
About August 2012, by way of an e-mail not marked confidential, appellant's counsel received Review Sheets related to the disciplinary action against appellant. OAG asserts that an as-yet unidentified leak caused the release of the Review Sheets.
On September 11, 2012, appellant's counsel notified DAG Victor DiFrancesco that he had possession of the Review Sheets. The DAG immediately asserted that the documents were privileged and demanded that appellant's counsel return them. The DAG notified appellant's counsel that, unless there was resolution of the asserted privilege of the Review Sheets, appellant's counsel was prohibited from disclosing or discussing them. The DAG also notified appellant's counsel that, in the event a court concluded that the Review Sheets had only qualified exception from discovery, since the appellant had not shown sufficient need, appellant's counsel should not disclose them.
Appellant's counsel disputed the Review Sheets' privilege. Appellant's counsel characterized them as clearing appellant, he filed them in the federal case, and the Newark Star Ledger reported on them.
OAG moved in federal court for an order sealing the record relative to the Review Sheets and compelling the appellant to return them. In October 2012, the federal magistrate judge directed the parties to discuss and attempt to resolve the matter of the Review Sheets. However, OAG and appellant's counsel were unable to do so.
In this appeal, appellant's counsel did not move for an order to supplement the SICRA. Nonetheless, by letter dated January 18, 2013, appellant's counsel purported to notify OAG that he planned to file the Review Sheets in his appellate appendix and that, by January 21, 2013, OAG should raise any objection to his filing of the Review Sheets. However, not until six days after appellant's counsel filed his appellate appendix, which included the Review Sheets, did OAG receive the letter dated January 18, 2013.
Ultimately, the federal magistrate judge decided OAG's motion. Federal district courts and circuit courts of appeal have adopted the deliberative process privilege and its rationale and under federal case law, in determining whether a litigant has sustained the burden of overcoming the privilege, factors include: 1) the relevance of the evidence, 2) the availability of other evidence, 3) the government's role in the litigation, and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. Federal Trade Comm'n v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The federal magistrate judge found that the NJSP had not authorized release of the Review Sheets, and that appellant's counsel's receipt was inadvertent. The federal magistrate judge found that the State, upon learning of the inadvertent disclosure of the Review Sheets, had acted in a prompt and reasonable manner. The federal magistrate judge concluded that appellant had not demonstrated sufficient need for the Review Sheets to overcome the State's interest in non-disclosure. Accordingly, on September 20, 2013, the federal magistrate judge ordered the parties to refrain from further disclosure of the Review Sheets.
Appellant moved for reconsideration of the magistrate judge's order of September 20, 2013, and, in December 2013, a federal judge denied that motion.
The TCA limits liability of public entities and public employees, and addresses defense and indemnification of public employees. N.J.S.A. 59:1-1 to 59:12-3. The TCA states, "A public employee is not liable if he acts in good faith in the execution and enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment." N.J.S.A. 59:3-3. The TCA also states, "Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted . . . actual malice or willful misconduct." N.J.S.A. 59:3-14(a).
Relative to defense and indemnification, the TCA states, "If pursuant to [N.J.S.A. 59:10A-1 to -6] the Attorney General provides for the defense of an employee or former employee, the State shall provide indemnification for the State employee." N.J.S.A. 59:10-1. The TCA states further, "The State may . . . indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong." Ibid. (emphasis added).
The TCA also states, "The Attorney General may refuse to provide for the defense of an action referred to in [N.J.S.A. 59:10A-1] if he determines that . . . the act . . . was because of . . . willful misconduct or actual malice; or c. the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee." N.J.S.A. 59:10A-2(b), -2(c) (emphasis added).
Under the TCA, if the appellant "establishes that the act or omission upon which [Bayliss's] claim . . . was based occurred within the scope of his employment as an employee of the State and the State fails to establish that he acted or failed to act because of actual fraud, actual malice or willful misconduct," he may request reimbursement for the reasonable cost, if any, of his defense. N.J.S.A. 59:10-2; Lavezzi v. State, 219 N.J. 163, 173 (2014).
Appellant cites In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011), where corrections officers (COs) requested defense under the TCA, but the circumstances there differ from those here. In Rodriguez, the Department of Corrections (DOC) brought disciplinary charges against the COs and then dismissed those charges and, without considering the effect of the dismissal, the Attorney General denied the COs' request for representation in a DOC inmate's civil case. Id. at ___. Here, the NJSP has not dismissed the disciplinary charges against appellant. Here also, consistent with principles recognized in Rodriguez, OAG gave the appellant written, detailed notice of the reasons for the revocation of the defense in the civil case.
OAG has acknowledged that, when a state employee requests representation pursuant to N.J.S.A. 59:10A-1, the Attorney General "must provide a defense to a state employee who requests representation unless the Attorney General determines that it is more probable than not that one of the three exceptions set forth in N.J.S.A. 59:10A-2 applies." Prado, supra, 186 N.J. at 427. Appellant asserted that there was conflict of interest, one of the three exceptions in N.J.S.A. 59:10A-2, and appellant's counsel demanded his file. OAG agreed and, consistent with N.J.S.A. 59:10A-2, revoked its defense.
The Bayliss case having been settled, the conflict of interest relied upon by OAG in its revocation of appellant's defense in the Bayliss case no longer exists. Relative to a claim for defense under the TCA, consistent with Prado, OAG should now determine whether it is "more probable than not" that appellant's actions were the result of his "willful misconduct or actual malice." Prado, supra, 186 N.J. at 427; N.J.S.A. 59:10A-2(b).
On appeal, for the first time, the appellant argues that under Title 53, he should be reimbursed for his cost of defense in the Bayliss case incurred after OAG revoked defense.
Title 53's relevant section states:
Whenever a member or officer of the Division of the State Police is a defendant
in an action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the furtherance of official duties, the Attorney General shall provide that member or officer with necessary means for the defense of the action or proceeding, but not for his defense in a disciplinary or criminal proceeding instituted against the member or officer. If a disciplinary or criminal proceeding is dismissed or finally determined in favor of the member or officer, the member or officer shall be reimbursed for the reasonable expenses or his defense. Nothing in this section shall be construed to limit the Attorney General's authority under [N.J.S.A. 59:10A-3] to provide for the defense of a member or officer of the Division of the State Police in any action or legal proceeding, if the Attorney General concludes that such representation is in the best interest of the State.
[N. J.S.A. 53:1-30 (emphasis added).]
N.J.S.A. 53:1-30, enacted in 1999 and relating to NJSP officers, is clearly based on N.J.S.A. 40A:14-155, enacted in 1985 and relating to municipal police officers. Both statutes distinguish an "action or legal proceeding arising out of" and/or "directly related to lawful exercise of police powers in the furtherance of official duties" from "a disciplinary or criminal proceeding" instituted by the appointing authority or resulting from a criminal complaint. N.J.S.A. 40A:14-155; N.J.S.A. 53:1-30.
The TCA and Title 53 manifest legislative intent that public employees, particularly NJSP officers, should feel confident that the State will support good faith law enforcement in our increasingly litigious society. N.J.S.A. 53:1-30 is more specific to the circumstances here and more recently enacted than the TCA. Because the only issue before us is whether the OAG's withdrawal of its defense of appellant is based upon a conflict of interest, as appellant urged, we do not address the interplay between the TCA and Title 53, and whether the two statutes conflict with each other.
The Supreme Court has set forth standards for judicial review of agency final decisions:
The judicial capacity to review administrative agency decisions is limited. Public Serv. Elec. v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985) (citation omitted). Moreover, "[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Board of Review, 200 N.J. Super. 74, 79 (App.Div. 1985) (citations omitted).
. . . .
Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. See In re Warren, 117 N.J. 295, 296 (1989). The Court "can intervene
only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. v. Turnpike Auth., 137 N.J. 8, 27 (1994). Under that standard, the scope of review of judicial review of an agency's action is restricted to four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution;
(2) whether the agency's action violates express or implied legislative policies;
(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid. (citing Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App.Div.1952)).]
[Brady v. Board of Review, 152 N.J. 197, 210-11 (1997).]
Given the above-described circumstances, the appellant has not shown that OAG's determination that the OAG's decision was unreasonable or unfounded in law or fact. Accordingly, we affirm OAG's final administrative determination that there was a conflict of interest necessitating revocation of its defense of appellant in the Bayliss case.
The Bayliss case having settled, there is no longer a conflict of interest within the intent of the TCA. If appellant resubmits a request for reimbursement of defense costs incurred after OAG withdrew its representation, OAG must determine whether it is "more probable than not" that appellant's actions were the result of "willful misconduct or actual malice." Prado, supra, 186 N.J. at 427; N.J.S.A. 59:10A-2b. Additionally, OAG must determine whether appellant is entitled to reimbursement under Title 53.
Inclusion of the Review Sheets in the Appellant's Appendix
and OAG's Motion to Strike
Under the long recognized "deliberative process privilege" doctrine, the government may withhold documents that include "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000) (citations omitted); Ciesla v. N.J. Dept. of Health and Senior Srvs., 429 N.J. Super. 127, 137 (App. Div. 2012) (construing the Open Public Records Act relative to the deliberative process privilege doctrine).
NJSP Review Sheets provide opinions and recommendations to the Superintendent and they were part of the governmental deliberative process. Disclosure of Review Sheets would discourage staff from offering candid assessments and chill the deliberative process. Appellant's disciplinary case remains to be decided. Accordingly, OAG properly relies upon the deliberative process privilege doctrine, in asserting that the Review Sheets are deliberative material, and that the NJSP may withhold the Review Sheets as confidential and privileged.
Waiver of privilege must be intended. Kinsella v. NYT Television, 370 N.J. Super. 311, 317 (App. Div. 2004); See also Ciba-Geiqy Corp. v. Sandoz, 916 F.Supp. 404, 411 (D.N.J. 1996). OAG did not waive privilege relative to the inadvertently released Review Sheets. Further, as the federal court found, after the inadvertent release, OAG promptly and reasonably notified appellant's counsel of its objection to his filing them and OAG moved in federal court for an order "to preserve the confidentiality of [the] privileged documents." Maldonado v. New Jersey, 225 F.R.D. 120, 128 (D.N.J. 2004). And, as the federal court also found, appellant demonstrated no "substantial or compelling need" for use of the Review Sheets. In re Liquidation, supra, 165 N.J. 85. Consistent with the above-cited standards and circumstances, the Review Sheets are subject to the deliberative process privilege.
Finally, the Review Sheets' confidential and privileged status was apparent, OAG notified appellant's counsel of the assertion of the Review Sheets' privileged and confidential status, and appellant's counsel had the SICRA before, without moving for an order to expand the record, he wrongfully included the Review Sheets in appellant's appendix.
Accordingly, we grant OAG's request for relief. By separate order, we have permitted appellant to refile a conforming brief and appendix without reference to, or inclusion of, the offending documents, which he has done. Appellant shall return the Review Sheets to the NJSP and shall refrain from further disclosure of their content.
Affirmed. Remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION