Opinion
DOCKET NO. A-2441-11T2
03-13-2013
WALTER W. YOUNG, JR., Plaintiff, v. TOWNSHIP OF IRVINGTON, IRVINGTON POLICE DEPARTMENT, HAROLD C. BORK JR., ANDREW BORYSCHUK, MILES BROWN, CHARLES P. BURGHARDT, MICHAEL L. CHASE, RALPH COLLURA, MICHAEL V. DAMIANO, NICHOLAS J. GARGAS, FRANCISZEK P. PIWOWARECZYK, MAURICE GATTISON, AMANDA KOONTZ, THOMAS P. MASSIMINO, STEPHEN F. McNALLY, JOHN J. MOLISSO, SHARON NOEL, JAMIE OLIVERIA, JOSEPH J. SANTIAGO, MELVIN SHAMBERGER, LADIMIR TAVARES, CRAWFORD WHITING, IRVINGTON LEGAL DEPARTMENT, MARVIN BRAKER, GUSTAVO G. GARCIA, WILLIE PARKER, LAW OFFICE OF IACULLO MARTINO INC., ANTHONY J. IACULLO, KATHLEEN C. FEENEY, KATHLEEN C. FEENEY LLC, Defendants, and PAULA DOW, CLARA RODRIGUEZ, and ESSEX COUNTY PROSECUTER, Defendants-Appellants.
James R. Paganelli, Essex County Counsel, attorney for appellants County of Essex, Essex County Prosecutor's Office, Paula Dow, and Clara Rodriguez (Alan Ruddy, Assistant County Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Luanh L. D'Mello, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Department of Law and Public Safety, Division of Law.
James R. Paganelli, Essex County Counsel, attorney for appellants County of Essex, Essex County Prosecutor's Office, Paula Dow, and Clara Rodriguez (Alan Ruddy, Assistant County Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Luanh L. D'Mello, Deputy Attorney General, on the brief). PER CURIAM
Appellants, Essex County Prosecutor's Office (ECPO), former Prosecutor Paula Dow and Chief Assistant Prosecutor Clara Rodriguez, appeal from a December 20, 2011 final agency decision of the Department of Law and Public Safety, Office of the Attorney General (Department), declining to provide them a defense or indemnification in connection with a wrongful termination complaint filed by plaintiff, a former Irvington Township police officer. Because the record supports the Department's determination that plaintiff's complaint did not trigger its obligation to defend or indemnify appellants, we affirm.
I
On or about October 3, 2011, plaintiff Walter W. Young, Jr., filed a 300-page pro se complaint in the Law Division against thirty-four entities and persons, including appellants. Plaintiff's allegations are numerous and varied, and pertain to what plaintiff characterizes as his wrongful termination from the Irvington Police Department.
Specifically as to appellants, plaintiff alleges that he submitted numerous, meritorious complaints against other members of the Irvington Police Department to ECPO's Professional Standards Bureau, which plaintiff avers was, at that time, supervised by Assistant Prosecutor Rodriguez. Plaintiff asserts that appellants improperly declined to investigate these complaints, informing plaintiff by way of a July 31, 2008 letter that, "[i]n February of 2007, the Professional Standards Bureau reviewed the charges [plaintiff] made against [defendants] and determined that they were administrative in nature and closed the matter."
Plaintiff's complaint further alleges that appellants failed to assist plaintiff in "halt[ing] the unlawful retaliatory actions" taken against him, and makes allegations of conspiracy and fraud against all individual defendants.
Upon receipt of plaintiff's complaint, appellants submitted a request for defense and indemnification to the Department, pursuant to Wright v. State, 169 N.J. 422 (2001). The Department denied this request by letter dated December 20, 2011, citing the absence of any allegation in plaintiff's complaint that "the County Prosecutor tortiously investigated, arrested, or prosecuted someone." The Department concluded that plaintiff's complaint was based solely on appellants' "administrative employment-related actions/inactions[.]" The Department therefore took the position that appellants were not entitled to a defense or indemnification for plaintiff's claims.
II
In Wright, the Supreme Court found it unnecessary to decide "whether the county prosecutors and their subordinates are 'state employees' within the meaning of the defense and indemnification provisions, N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1[,]" respectively, of the Tort Claims Act. Id. at 454. Instead, the Court focused on "whether the function that the county prosecutors and their subordinates were performing during [the time that] the alleged wrongdoing [occurred was] a function that traditionally has been understood to be a State function and subject to State supervision in its execution." Ibid.
Answering that question in the affirmative, the Court extended the application of N.J.S.A. 59:10A-1, which specifies when the Attorney General is required to defend an action filed against a State employee. Id. at 454-56. The Court held that the State was required to provide defense and indemnification to county prosecutor's office employees engaged in law enforcement activities as part of a State task force, but reached that result solely because of the unique "hybrid" statutory relationship between the Attorney General and county prosecutors' offices. Ibid. The Court reasoned:
The statute provides that "the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of any act or omission in the scope of his employment." N.J.S.A. 59:10A-1.
The position of county prosecutor was created for the purpose of prosecuting "[t]he criminal business of the State," N.J.S.A. 2A:158-4, and "the Attorney General [is the] chief law enforcement officer," who "maintain[s] a general supervision" and control over all of the county prosecutors. N.J.S.A. 52:17B-98; N.J.S.A. 52:17B-103.
. . . .
We are persuaded that when county prosecutors and their subordinates are involved in the investigation and enforcement of the State's criminal laws, they perform a function that has traditionally been the responsibility of the
State and for which [the] Attorney General is ultimately answerable. In our view, the State should be obligated to pay the county prosecutors and their subordinates' defense costs and to indemnify them if their alleged misconduct involved the State function of investigation and enforcement of the criminal laws.
. . . .
We acknowledge that the Legislature intended a sharp distinction between State employees and employees of other public entities that may be indemnified by such entities, but that distinction did not contemplate public employees, such as county prosecutors, who have a hybrid status. We are persuaded that the statutory language used in N.J.S.A. 59:1-3 did not take into account the unique role of county prosecutorial employees, paid by the county, but performing a State law enforcement function under State supervisory authority.
[Id. at 454-56.]
The county is liable, however, when county prosecutor employees "perform administrative tasks unrelated to their strictly prosecutorial functions, such as . . . personnel decisions." Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed. 2d 691 (1997) (predicting what our Supreme Court would hold if presented with same issue). Further, "the State's duty to indemnify and defend county prosecutors and their subordinates is limited to acts or omissions that do not involve actual fraud, actual malice or willful misconduct[.]" Wright, supra, 169 N.J. at 456.
Our review of the Department's decision is limited. Its determination should be affirmed unless "'it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)). A final determination by the Department declining to provide a defense and indemnification "is entitled to the usual deference accorded to [an administrative agency] decision." Prado v. State, 186 N.J. 413, 427 (2006).
On appeal, appellants argue that the conduct challenged by plaintiff relates to the supervision of police officers, as plaintiff "requested an action pursuant to the prosecutor's supervisory power." Appellants cast this as a criminal function authorized under the criminal powers of the prosecutor's office, and therefore claim entitlement to defense and indemnity under Wright. Thus, appellants argue that the Department acted arbitrarily and capriciously in the denial of appellants' defense and indemnity requests.
The Department submits that appellants cannot show that their conduct constituted investigative or law enforcement activity, and that its denial of representation is supported by any reasonable reading of plaintiff's complaint. Specifically, plaintiff's allegations as to appellants are based on a number of complaints submitted by plaintiff to ECPO's Professional Standards Bureau. The alleged harassment suffered by plaintiff took the form of at least one internal disciplinary proceeding brought against him by other members of the Irvington Police Department in an apparent response to complaints plaintiff had filed against other officers.
After careful review, we agree that the challenged conduct did not relate to the supervision of the Irvington Police Department simply because no supervision was requested or given. Nor did this conduct touch upon the appellants' prosecutorial function, as no action related to law enforcement was taken. Instead, as acknowledged in ECPO's July 31, 2008 letter, cited above, plaintiff's complaints were simply part of an administrative, personnel matter. Thus, the Department's denial, which mirrored the apparent internal assessment made by ECPO, stands as supported by the record. Appellants have failed to present any evidence to indicate the Department's decision was arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION