Opinion
A-0725-20
04-11-2022
COUNTY OF ESSEX, Petitioner-Appellant, v. DEPARTMENT OF LAW AND PUBLIC SAFETY, Respondent-Respondent.
Courtney M. Gaccione, Essex County Counsel, attorney for appellant (Alan Ruddy, Assistant County Counsel, on the briefs). Matthew J. Platkin, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Brett J. Haroldson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2022
On appeal from the New Jersey Department of Law and Public Safety.
Courtney M. Gaccione, Essex County Counsel, attorney for appellant (Alan Ruddy, Assistant County Counsel, on the briefs).
Matthew J. Platkin, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Brett J. Haroldson, Deputy Attorney General, on the brief).
Before Judges Sumners and Firko.
PER CURIAM.
Appellant County of Essex (the County) appeals from the Office of Attorney General's (OAG) final decision denying its request for defense and indemnification in an action in lieu of prerogative writs filed by terminated East Orange police officer Mark Patrick. In his complaint, Patrick contested the decision by the Essex County Prosecutor's Office (ECPO) not to rearm him due to repeated domestic violence and substance abuse issues pursuant to General Directive No. 2000-3 (the Directive). We affirm.
The Directive was issued "to promote the uniform and expeditious handling of domestic violence issues involving a special subset of individuals: law enforcement officers - individuals who are authorized to carry state-issued weapons in the cause of law enforcement." Gramiccioni v. Dep't of L. & Pub. Safety, 243 N.J. 293, 315 (2020). The Directive provides the State's policy governing the seizure and return "of weapons from a law enforcement officer who is charged with committing an act of domestic violence." Attorney General Law Enforcement Directive No. 2000-3 , 1, 4-5 (Sept. 1, 2000).
I.
The underlying facts of this matter are not in dispute. In 1996, Patrick was hired by the City of East Orange (City) as a police officer. His former partner was also employed by the City. On February 8, 2013, a domestic violence incident occurred between Patrick and his former partner, which resulted in Patrick being placed on administrative leave with pay, a temporary restraining order (TRO), and surrender of his duty weapon pursuant to the Directive. The City initiated an internal affairs investigation, "which found insufficient evidence to pursue departmental charges for any violations of policy or procedure." In May 2013, the TRO and domestic violence complaint were dismissed.
Thereafter, the City required Patrick to undergo a psychological fitness-for-duty evaluation. On March 8, 2013, Dr. Matthew Guller evaluated Patrick and deemed him unfit for duty. Dr. Guller recommended: (1) in-patient treatment for alcohol abuse; (2) completion of an eight-week intensive outpatient program for alcohol abuse; (3) involvement with Alcoholics Anonymous for ninety days; and (4) participation in a twenty-six week domestic violence prevention program. On February 18, 2014, another domestic violence incident occurred and Patrick "was charged with harassment and driving while intoxicated." Both charges were ultimately dismissed.
On August 2, 2014, Patrick sought interim relief from the Civil Service Commission, which held Patrick must either be returned to duty or provided with a pre-termination hearing. On or about February 11, 2015, Patrick underwent a second fitness-for-duty evaluation, which concluded he "was a high risk of relapse," "not fit-for-duty," "unlikely to be restored to duty in a reasonable amount of time," and "cannot be re-armed." (Emphasis added). On April 10, 2015, the ECPO issued a letter refusing to authorize Patrick's rearming, noting Patrick's extensive history of domestic violence incidents and the February 2014 relapse.
The record is absent of who conducted the second fitness-for-duty evaluation; however, the record suggests the evaluation was conducted by either Dr. Guller or "Dr. Schlosser," whose first name does not appear in the record.
On April 20, 2015, Patrick was served with a notice of disciplinary charges "for conduct unbecoming, inability to perform, and other sufficient cause." In response, Patrick requested a departmental hearing. The hearing took place over two non-sequential days. On March 2, 2016, the hearing officer issued a decision recommending Patrick's termination. Two days later on March 8, 2016, the City terminated Patrick's employment.
Pursuant to N.J.S.A. 40A:14-147, no officer may be removed from his or her position absent "a written complaint setting forth the charge or charges" and "with notice of a designated hearing thereon by the proper authorities."
On March 21, 2016, Patrick's counsel sent a letter to the ECPO requesting reconsideration of its April 10, 2015 decision not to re-arm Patrick based on: (1) all charges pending had been resolved in Patrick's favor; (2) none of the incidents were related to on-duty conduct; (3) the City's evaluating doctors had "lost their contract[s] with [the] Newark Police Department due to allegations of racism and disparate treatment of minorities"; and (4) Patrick's evaluation by his personal physician. On June 7, 2016, Patrick's counsel issued a follow-up letter regarding same. On July 21, 2016, Patrick's personal physician, Dr. Nicole Rafanello, conducted a fitness-for-duty evaluation and determined he was fit-for-duty.
The record is absent of any information with regard to this evaluation.
On September 6, 2016, Patrick filed a complaint in lieu of prerogative writs challenging the ECPO's April 10, 2016 decision. On May 3, 2017, the ECPO and Patrick entered into a consent order, providing "the ECPO would issue a new rearming decision, based upon all relevant factors and additional materials supplied by [Patrick]." On January 11, 2018, the ECPO again denied Patrick's request to be rearmed. On February 20, 2018, Patrick filed another complaint in lieu of prerogative writs, requesting in pertinent part: (1) a de novo hearing and discovery on the factual issues on the re-arming issue with all proper due process afforded; and (2) reversing and rescinding the decision to rearm him.
Patrick v. City of E. Orange, ESX-L-1261-18.
On March 5, 2018, the County issued a letter to the OAG requesting representation. The County also referred to our Court's seminal decision in Wright v. State, 169 N.J. 422 (2001). The letter notes the County made its "request as a matter of courtesy rather than as a legal necessity on duty." On March 23, 2018, the OAG rendered a written final decision denying the County's demand and explaining:
The County's March 5, 2018 letter notes a request for representation was previously submitted on behalf of all ECPO defendants. The record is devoid of any details regarding the previous request.
Compare N.J.S.A. 59:10A-1 (imposing a legal duty to represent State employees), with N.J.S.A. 59:10A-3 (imposing discretion to represent State employees if "in the best interest of the State").
[B]ecause the matter is a [c]omplaint in [l]ieu of [p]rerogative [w]rits, not an action filed pursuant to the Tort Claims Act, [N.J.S.A. 59:1-1 to -12.3 (TCA), ] or 42 U.S.C. §1983, this office is not obligated by Wright to provide defense and indemnification to the [ECPO].
. . . .
Here, [Patrick]'s allegations do not fall within the scope of Wright and the [TCA]'s requirement to defend and indemnify does not apply. [Patrick] alleges that ECPO's decision not to rearm plaintiff is arbitrary and capricious. These allegations challenge the ECPO's administrative responsibilities and actions. [Patrick]'s complaint in lieu of prerogative writs is not a claim for damages brought pursuant to the [TCA] or §1983. Thus, the [TCA] is not implicated and the [OAG] is not required to provide representation and indemnification under Wright.
Our Court has extended the OAG's representation obligations under the TCA "to the defense of actions brought pursuant to 42 U.S.C. § 1983." In re Petition for Rev. of Op. 552 of Advisory Comm. on Prof. Ethics, 102 N.J. 194, 200 (1986). 42 U.S.C. § 1983 principally protects "(1) due-process rights, (2) equal-protection rights, (3) privileges and immunities of citizens, (4) rights owing their existence to federal functions, and (5) rights created by federal statutes." Id. at 197.
On April 18, 2019, Patrick conceded to the trial court "he is not seeking and cannot recover damages in [the underlying] action."
On September 7, 2020, the County renewed its request for defense and indemnification based on our Court's recent holding in Gramiccioni, 243 N.J. 293, which also concerned a county prosecutor office's decision whether to rearm an officer following a domestic violence incident. On October 7, 2020, the OAG again denied the County's request for representation. The OAG reaffirmed its March 23, 2018 final decision, noting:
The County renewed its request via email, which merely read: "Based upon the recent New Jersey Supreme Court case in Gramiccioni, [the] County requests defense and indemnification of the [ECPO]'s defendants. The Gramiccioni case, like Patrick, concerns domestic violence charges and the decision to rearm."
[T]he Wright request was being denied for two reasons. First, this matter is not a civil action seeking damages for which the TCA, including the State's obligation to defend and indemnify, see N.J.S.A. 59:10-1 to l0A, is triggered in the first instance. Instead, it is a
prerogative writ action, R[ule] 4:69, which is not subject to the TCA regardless of the allegations. See, e.g., Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546 (2000). As the March 23, 2018 [final decision] thus explained, this matter raises no claims to which the TCA, namely the State's obligations to defend and indemnify, N.J.S.A. 59:10-1 to 10A-6, applies at all. . . .
The March 23, 2018 [final decision] also stated that the Wright request was being denied on the additional basis that the allegations in the complaint "challenge the ECPO's administrative responsibilities and actions." The issue in Wright is determining which specific tortious conduct by prosecutorial employees is regarded as a State function for which the TCA duty to defend and indemnify applies. The Supreme Court's recent decision in Gramiccioni only interprets Wright's holding and, in doing so, provides further guidance as to which specific tortious conduct by prosecutorial employees constitutes a State function for which the State's TCA duty to indemnify, and defend, is triggered.
Even if one assumed that, as your [email] appears to suggest, the allegations in this action do not challenge the ECPO's administrative responsibilities and actions but instead do concern classic law enforcement functions for which, if conducted tortiously, the State under the TCA would be vicariously liable, as the March 23, 2018 final decision stated there was a separate basis for denial of the request here. Gramiccioni, as well as Wright, are immaterial to that separate basis for denial.[(Footnote omitted).]
This appeal followed.
On appeal, the County raises the following sole contention for our consideration:
THE [OAG]'S DECISION TO DENY DEFENSE AND INDEMNIFICATION IS ARBITRARY AND CAPRICIOUS.
II.
We have reviewed the County's contentions in light of the record and applicable law, and conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
The OAG's administrative determinations are reviewed "in accordance with a deferential standard of review." Lavezzi v. State, 219 N.J. 163, 171 (2014); see also City of Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980) (noting an administrative agency is afforded a "strong presumption of reasonableness" in the exercise of the agency's statutorily delegated responsibilities). As such, the OAG's determination should not be reversed "unless it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Lavezzi, 219 N.J. at 171 (quoting Prado v. State, 186 N.J. 413, 427 (2006)).
An agency's decision "is arbitrary, capricious or unreasonable" when: (1) "the agency's action violates express or implied legislative policies"; (2) the record is absent of "substantial evidence to support the findings on which the agency based its action; and" (3) . . . "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." Id. at 171-72 (quoting In re Stallworth, 208 N.J. 182, 194 (2011)). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." Id. at 171 (alteration in original) (quoting In re J.S., 431 N.J.Super. 321, 329 (App. Div. 2013)).
An agency's interpretation of a statute or the common law, however, is a question of law and reviewed de novo. Maison v. N.J. Transit Corp., 245 N.J. 270, 286 (2021); State v. Cnty. of Ocean, 469 N.J.Super. 529, 534 (App. Div. 2021) (citing State v. S.B., 230 N.J. 62, 67 (2017)); see also Lavezzi, 219 N.J. at 172 (noting a reviewing court it "is not 'bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue'" (alteration in original) (quoting Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 165 (2013))). "We owe no deference to the trial court's [OAG]'s interpretative analysis unless persuaded by its reasoning." Maison, 245 N.J. at 286 (quoting Est. of Narleski v. Gomes, 244 N.J. 199, 213 (2020)).
The OAG shall represent an employee only if: (A) the action is brought against a "State employee on account of an act or omission in the scope of [the employee's] employment"; and (B) the OAG's obligation is not otherwise preempted under the TCA. N.J.S.A. 59:10A-1 (emphasis added); N.J.S.A. 59:10-1. In contrast, the OAG may represent the employee if the action is brought: (A) against an employee of other public entities, see Gramiccioni, 243 N.J. at 310; and/or (B) the OAG's obligation is otherwise preempted under the TCA, see Chasin v. Montclair State Univ., 159 N.J. 418, 427-28 (1999) (citing N.J.S.A. 59:10A-2 and -3). These decisions are within the discretion of the OAG and, as such, afforded "a 'strong presumption of reasonableness'" by a reviewing court. Lavezzi, 219 N.J. at 171.
A.
First, the County argues "the actions of the [ECPO] were State actions" because "[t]here is no question that the [County], a non-criminal body, cannot make and cannot supervise the important decision to re-arm an officer charged with domestic violence." The OAG concedes the ECPO's status as a State employee for the purpose of representation.
County prosecutors, and their subordinates occupy "a 'hybrid' role," which serves both the State and the county. Gramiccioni, 243 N.J. at 310-11 (quoting Wright, 169 N.J. at 455-56); see also id. at 311 ("[T]he 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." (quoting Wright, 169 N.J. at 455-56)). In Wright, our Court clarified when a county prosecutor acts within the interest of the State-during the prosecutor's "investigation and enforcement of the State's criminal laws," the prosecutor in effect acts as a State employee. See id. at 311 (citing Wright, 169 N.J. at 430).
In these circumstances, the OAG is obligated to represent and indemnify the county prosecutor if his or her alleged misconduct involved a State law enforcement function or duty. Gramiccioni, 234 N.J. at 311 (citing Wright, 169 N.J. at 430). However, a county prosecutor does not function as a State employee, requiring the OAG's representation, when performing an administrative function or duty. Id. at 312.
[W]hen county prosecutors execute their sworn duties to enforce the law by making use of all the tools lawfully available to them to combat crime, they act as agents of the State. On the other hand, when county prosecutors are called upon to perform
administrative tasks unrelated to their strictly prosecutorial functions, such as a decision whether to promote an investigator, the county prosecutor in effect acts on behalf of the county that is the situs of his or her office.
. . . [T]he test for determining in which capacity a county prosecutor acts should "focus on whether the function that the county prosecutors and their subordinates were performing during the alleged wrongdoing is a function that traditionally has been understood to be a State function and subject to State supervision in its execution."[Ibid. (emphases added) (citation omitted) (quoting Wright, 169 N.J. at 454).]
Our Court held a county prosecutor's decision whether to re-arm a former law-enforcement officer is a "prosecutorial function[] exercised on behalf of the State." Id. at 317. In Gramiccioni, the Court held county prosecutors act within the interest of the State when following the directives of the OAG, which vests prosecutors with crucial discretionary decision-making and otherwise supersedes normal governing rules. See Id. at 314.
The Court emphasized: (1) "the Attorney General has been given statutory authority to guide law enforcement entities"; (2) the Attorney General has used its authority "'to adopt guidelines, directives, and polices' for law enforcement"; (3) "[t]he Attorney General issued [the Directive] to promote the uniform and expeditious handling of domestic violence issues involving" law enforcement officers; (4) the Directive supersedes the normal governing rules involving the seizure and return of weapons from domestic violence perpetrators; (5) "[t]he Attorney General devised uniform procedures," which "clearly establishes the protocols a local prosecutor should follow"; and (6) because "the Directive can be thwarted by improper police action at that early stage, the prosecutor's office must offer training and supervision with respect to enforcement of this particular Directive." Id. at 314-17.
Consequently, the Court held "the many discretionary determinations the Directive assigns to the prosecutor" to be "part of the State-delegated responsibility to enforce the law that the Attorney General has entrusted to prosecutors," which "is not akin to the administrative duties that have been exempted from State defense and indemnification in the past." Id. at 317.
Here, like in Gramiccioni, the present case stems from Patrick's surrender of his duty weapon, pursuant to the Directive, and the ECPO's subsequent refusal to re-arm. Because the ECPO acted pursuant to the Directive, the ECPO's actions were within the interest of the State and the ECPO in effect acted as a State employee. See id. at 311 (citing Wright, 169 N.J. at 430). The OAG would have been obligated to represent the ECPO except for the preemption and reasons we will address now.
B.
Next, the County argues the OAG's conclusion that prerogative writs actions are not covered was arbitrary and capricious. Specifically, the County claims acts or omissions within an employee's employment are not "limited to strictly tort claims acts." "There are many many cases that deal with [42 U.S.C. §1983] actions[, ] which deal with different standards of liability and are not strictly tort claims actions." Moreover, "attorney fees could be appropriate in a prerogative writs action in our modern court system. . . . [and] the only remaining issue in the underlying case is attorney fees." In opposition, the OAG contends it does not have to provide defense to State employees in injunctive actions.
The OAG's obligation to defend and indemnify State "employees for actions arising out of their employment stems from the [TCA]." Gramiccioni, 243 N.J. at 309-10. "The TCA governs tort suits filed against the State and public entities, and it sets forth defense and indemnification provisions that distinguish between State employees and other public employees." Id. at 310. However, the OAG's obligation to provide representation is not limited to actions brought under the TCA. Prado v. State, 376 N.J.Super. 231, 241 n.4 (App. Div. 2005), rev'd on other grounds, 186 N.J. 413. The OAG has previously recognized its duty to provide representation pursuant to the TCA "in other types of actions." Ibid.; see, e.g., In re Rev. of Op. 552, 102 N.J. at 200 ("New Jersey construes its statutory defense and indemnification obligations under the [TCA] as extending to the defense of actions brought pursuant to 42 U.S.C. § 1983." (citation omitted)); Prado, 186 N.J. at 426 n.6 ("The Attorney General does not question whether his duty-to-defend responsibilities under the [TCA] extends to a [Law Against Discrimination, N.J.S.A. 10:5-1 to -42, ] or [Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to-8, ] claim."); Prado, 376 N.J.Super. at 241 n.4 ("[A] 1996 directive of the Attorney General regarding representation of State employees . . . states that 'N.J.S.A. 59:10A-1 sets forth the statutory basis for the [OAG]'s obligation to defend state employees in discrimination matters.'"). Here, although the County argues "any argument that the limits of the Wright case is limited to strictly tort claims acts is belied by the vast case law," the County fails to provide any caselaw holding the TCA, 42 U.S.C. § 1983, or any other statute or common law obliges the OAG to provide representation for cases that only seek injunctive relief.
"N.J.S.A. 59:10-1 requires the [OAG] to indemnify employees for whom a defense is provided." Chasin, 159 N.J. at 426. If the OAG refuses to defend the State employee, however, "the State is only required to indemnify that employee if": (1) "the act or omission upon which the claim or [judgment] was based occurred within the scope of his employment"; and (2) the OAG fails to establish "actual fraud, actual malice or willful misconduct." Ibid. (quoting N.J.S.A. 59:10-2). Consequently, a State employee otherwise qualified for the OAG's representation is entitled to reimbursement "for all costs, including reasonable attorneys' fees." Ibid.
The OAG is required to represent a State employee unless otherwise preempted under the TCA. N.J.S.A. 59:10-1; N.J.S.A. 59:10A-1. In Chasin, the Court clarified the TCA only requires the OAG to defend and indemnify "in the context of civil actions seeking damages for tortious conduct." 159 N.J. at 431; see also Gramiccioni, 243 N.J. at 310 (noting "[t]he TCA governs tort suits"). The Court noted:
Given the statutory scheme and the title of the Act, N.J.S.A. 10A-1 mandates that the [OAG] defend "any action" brought in tort; N.J.S.A. 59:10A-2 specifies three instances when such representation of tort cases may be refused by the [OAG]; and N.J.S.A. 59:10A-3 vests the [OAG] with the discretion to defend in cases not covered by N.J.S.A. 59:10A-1. Because N.J.S.A. 59:10A-3 grants discretion "in any other action, including criminal proceedings[, ]" . . . that discretion cannot be limited to criminal proceedings, but must include some civil actions. N.J.S.A. 59:10A-1 requires the [OAG] to defend state employees against tort
liability, so the civil claims left to N.J.S.A. 59:10A-3 must seek a remedy other than tort damages.[Chasin, 159 N.J. at 428.]
"The Legislature intended the TCA to protect state employees from claims for damages resulting from negligent acts performed during the course of their employment." Chasin, 159 N.J. at 441 (emphasis added).
The OAG may refuse to defend a State employee if the OAG determines:
a. the act or omission was not within the scope of employment; or
b. the act or the failure to act was because of actual fraud, willful misconduct or actual malice; or
c. the defense of the action or proceeding by the [OAG] would create a conflict of interest between the State and the employee or former employee.[N.J.S.A. 59:10A-2.]
Thus, the OAG's duty to defend and indemnify "is limited to civil actions seeking compensatory damages for tortious conduct. The decision to represent an employee in any other action is within the discretion of the [OAG]." Id. at 441.
As a record develops, however, a case's factual settings may push the complaint "more clearly into the realm of administrative responsibility." Gramiccioni, 243 N.J. at 313-14. In Lavezzi, the Court reviewed a case regarding a county prosecutor's secure and safe housing of seized evidence, which bore "some indicia of both a state law enforcement function and the administrative function." Id. at 313 (citing Lavezzi, 219 N.J. at 166). The Court held the OAG was required to defend and indemnify the county prosecutor because "the articles 'were seized in the course of a criminal investigation . . . for which the State and county prosecutors are responsible pursuant to N.J.S.A. 2A:158-4.'" Ibid. (internal quotation marks omitted) (quoting Lavezzi, 219 N.J. at 166-67).
However, the Court qualified its conclusion by stating:
[t]he State's defense and indemnification of the [p]rosecutor's [o]ffice employees shall be subject to a reservation: if it is revealed at a later stage of this case that [the] plaintiffs' property was stored in a facility controlled by the [c]ounty and that the loss or damage to [the] plaintiffs' property resulted from that facility's condition or maintenance, the State may seek reimbursement of all or part of the costs incurred in its defense and indemnification of the [p]rosecutor's [o]ffice employees.[Lavezzi, 219 N.J. at 167.]
In Gramiccioni, the Court noted:
That reservation allowed for the development of more facts that might push the act or omission more clearly into the realm of administrative responsibility . . . for which the county should bear responsibility. The act or omission then would not be a part or an aspect of prosecutorial performance over which the State would exercise supervision . . . .[243 N.J. at 313-14.]
Per the above analysis, under the TCA the appropriate test for whether a county is entitled to defense and reimbursement from the State for its reasonable attorneys' fees is as follows: (1) at the time of the alleged act or omission, was the county's prosecutor acting within the interest of the State by investigating and enforcing the State's criminal laws, id. at 310-11; (2) was the alleged act or omission within the scope of the employee's employment or otherwise preempted pursuant to N.J.S.A. 59:10A-2, Chasin, 159 N.J. at 425-26; (3) reading the complaint as a whole was the OAG's obligation preempted by the complaint's type of action pursuant to N.J.S.A. 59:10A-3, i.e., an action other than a "civil action[] seeking compensatory damages for tortious conduct," id. at 441; and (4) as the record of the action developed, did it push the prosecutor's alleged "act or omission more clearly into the realm of administrative responsibility," Gramiccioni, 243 N.J. at 313-14.
Here, Patrick's complaint, filed on February 20, 2018, alleges:
As a direct result of the actions of [d]efendants, [p]laintiff has been deprived of his employment rights and other rights, has lost wages, benefits, and other emoluments of the position denied and was wrongfully terminated. Plaintiff has sustained injury to his reputation and employability. Plaintiff has also suffered emotional distress, pain and suffering. Further, [p]laintiff has been compelled to retain an attorney to vindicate his rights. Additionally, [p]laintiff has been otherwise injured.
The ad damnum clause sought to reverse and rescind the ECPO's decision not to re-arm Patrick. Although the complaint does not specifically plead tortious courses of action-negligence, gross negligence, compensatory or punitive damages-see, e.g., Lavezzi, 219 N.J. at 168, the gravamen of the complaint sounds in tortious conduct. Thus, prior to April 18, 2019, the OAG was arguably obligated to represent the ECPO.
The County has not appealed the OAG's March 23, 2018 final decision. Even if the County had appealed the decision, such an appeal would be untimely. See R. 2:4-1(b) (providing an appeal "shall be filed within [forty-five] days from the date of service of the decision"). Therefore, we lack "jurisdiction to decide the merits of the appeal" with regard the OAG's initially denial of representation. Ricci v. Ricci, 448 N.J.Super. 546, 565 (App. Div. 2017) (quoting In re Hill, 241 N.J.Super. 367, 372 (App. Div. 1990)).
But, on April 18, 2019, the trial court noted in its order Patrick had "conceded that he [was] not seeking and cannot recover damages in this action." Having resolved the scenario of any potential resulting damages for tortious conduct, Chasin, 159 N.J. at 431, we conclude the factual setting of the case was effectively pushed "into the realm of administrative responsibility," Gramiccioni, 243 N.J. at 313-14. Therefore, post April 18, 2019, the OAG had no obligation to defend or indemnify the ECPO because reading the complaint as a whole, the action could no longer be considered a "civil action[] seeking compensatory damages for tortious conduct." Chasin, 159 N.J. at 441.
Affirmed.