STATE OF NEW JERSEY v. JOSEPH MANDI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5186-07T25186-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH MANDI,

Defendant-Appellant.

_______________________________________________________

 

Argued September 1, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-263-08.

Joseph A. Carmen argued the cause for appellant.

Leslie-Ann M. Justus, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney for respondent; Ms. Justus, on the brief).

 
PER CURIAM

Defendant Joseph Mandi appeals from the May 30, 2008 order that forfeited any "public employment, office or position" held by him, and "forever disqualified [him] from holding any office or position of honor, trust, or profit" pursuant to N.J.S.A. 2C:51-2(d). We set forth the procedural history in some detail because it relates specifically to one of the points defendant now raises on appeal.

Defendant was employed as a Rowan University police officer. The State alleged that on January 4, 2006, while on duty and utilizing a university computer, defendant created a false and offensive profile of J.W., a female employee of the University, on "myspace.com." On March 22, 2006, J.W. filed a complaint in municipal court charging defendant with harassment, N.J.S.A. 2C:33-4(a). The University served defendant with three preliminary notices of disciplinary action based upon these allegations, one of which noted that forfeiture of defendant's office pursuant to N.J.S.A. 2C:51-2 "may apply to this matter." After a Loudermill hearing, defendant was suspended without pay.

On June 12, defendant pled guilty in municipal court to the amended charge of disorderly conduct, N.J.S.A. 2C:33-2(a), a petty disorderly persons offense. The State sought forfeiture of defendant's office by filing an order to show cause in the Law Division. This was denied without prejudice.

The University subsequently served defendant with final notices of disciplinary action terminating his employment, and the matters were forwarded to the Office of Administrative Law as contested cases. Beginning in December 2007, and culminating in January 2008, the administrative law judge (ALJ) heard testimony. In a thorough written opinion, the ALJ upheld the University's decision, concluding defendant's "misconduct was incompatible with service as a police officer." The ALJ's findings and conclusions were adopted by the Merit System Board, which affirmed defendant's termination and dismissed his administrative appeal on April 24, 2008. Defendant has not appealed that order.

Meanwhile, in February 2008, the State re-filed a forfeiture action in the Law Division. Oral argument was heard on May 30. Defendant argued that his offense did not "touch upon his office[.]" Additionally, he contended that the ALJ, who heard all the testimony surrounding the events, did not order forfeiture.

The State countered by noting that it sought not only forfeiture of defendant's position as a campus police officer, but also "permanent disqualification" from "other public employment" because defendant was "found guilty o[f] charges that related directly and substantially to his job as a campus police officer." The State further argued that the ALJ did not have jurisdiction to order forfeiture because, under N.J.S.A. 2C:51-2, only a "court" could enter such an order.

While expressing concern for the lack of an adequate factual basis at the time defendant pled guilty in municipal court, and whether he knew the State intended to seek forfeiture when he entered the plea, the judge nonetheless concluded that defendant's offense "b[ore] on his office." She continued, "It's just a matter of the decency and the respect and the need of an officer to avoid exposing any citizen to the internet in the fashion that this young man did." The judge granted the State's request, and entered the order under review. This appeal ensued.

The parties have reiterated their arguments before us. We have considered them in light of the record and applicable legal standards. We affirm.

Before addressing defendant's procedural argument, we consider whether his offense satisfied the statutory standard for forfeiture, which provides in pertinent part,

A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office, position or employment if:

(1) . . . ;

(2) He is convicted of an offense involving or touching such office, position or employment; or

(3) . . . .

As used in this subsection, "involving or touching such office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.

[N.J.S.A. 2C:51-2(a) (emphasis added).]

The statute further provides,

In addition to the punishment prescribed for the offense, and the forfeiture set forth in [N.J.S.A. 2C:51-2(a)], any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions. As used in this subsection, "involving or touching on his public office, position or employment" means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office, position or employment held by the person.

[N.J.S.A. 2C:51-2(d) (emphasis added).]

Thus, the statutory scheme is clear. Any person convicted of an offense, including a petty disorderly persons offense, as was defendant, is subject to forfeiture of his present position, and is permanently barred from future public employment, if the offense "involv[ed] or touch[ed] on his public office, position or employment." The highlighted portions of the statute that define those terms were recently added by the Legislature in 2007. L. 2007, c. 49, 5 (effective April 14, 2007). See generally State v. Hupka, 407 N.J. Super. 489, 500 (App. Div. 2009).

In Hupka, supra, construing the new definitional language of the forfeiture statute, we held that forfeiture is warranted if

"the offense was related directly to the person's performance in . . . the specific public office, position or employment held by the person." Thus, if the offense occurs while a defendant is performing the functions of his office, and arises from some illegal, and obviously unauthorized, act, forfeiture is required. Similarly, if the offense occurs not while the defendant is performing the functions of his office, but is "related directly" to the defendant's performance in that position, forfeiture is also required.

[407 N.J. Super. at 507 (quoting N.J.S.A. 2C:51-2(a) and (d)).]

Forfeiture is also warranted if there was a direct relation between the offense and other circumstances of the public position, though not necessarily involving the performance of the duties of the position. Id. at 508.

Once a violation of the statute is proven, "entry of an order of forfeiture is mandatory and automatic in all but one limited instance." State v. Och, 371 N.J. Super. 274, 281 (App. Div.) (citing In re Vitacco, 347 N.J. Super. 337, 343 (App. Div. 2002)), certif. denied, 182 N.J. 150 (2004); State v. Ercolano, 335 N.J. Super. 236, 245 (App. Div. 2000), certif. denied, 167 N.J. 635 (2001). The only exception is the waiver provision contained in N.J.S.A. 2C:51-2(e), which provides that "[a]ny forfeiture or disqualification under subsection a. [] or d. which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown." No one sought, nor was it ever implied, that forfeiture was to be waived in this case.

Defendant claims his offense did not "involve a nexus between [his] conduct and his employment." He contends that the judge erred in imposing forfeiture because "[]his personal action did not touch on []his employment." We disagree.

In Hupka, supra, we surveyed in detail the numerous cases involving offenses committed by law enforcement officers and whether forfeiture was required because those offenses involved or touched on their public offices. 407 N.J. Super. at 507-09. We need not repeat the discussion here except to say that defendant's offense clearly "related directly to . . . circumstances flowing from" his official position as a campus police officer. N.J.S.A. 2C:51-2(a) and (d). It was undisputed that defendant's offense was committed against a fellow employee of the University with whom he admitted having a personal relationship in the past. He was on duty when he placed the offending profile on the internet, and used a University computer to commit the offense. Under these facts, the judge correctly determined that defendant's offense involved or touched upon his office as a campus police officer, and appropriately ordered forfeiture under both N.J.S.A. 2C:51-2(a) and (d).

Defendant's other point, as best we can discern, is that the judge should not have ordered forfeiture because the ALJ and the Merit System Board did not. He argues that having failed to obtain forfeiture administratively, the State was barred by "res judicata" from seeking it in the Law Division. He also argues that it was fundamentally unfair for the State to "be given a second bite at the [forfeiture] apple." The State counters by noting that only a court can enter an order of forfeiture under the statute. Thus, the Merit System Board did not have the power to order forfeiture, those proceedings did not preclude the forfeiture order by the Law Division, and there was nothing fundamentally unfair about the procedures employed in this case. We agree with the State's position.

Any order of forfeiture under section (a) of the statute "shall enter . . . [i]mmediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of such forfeiture pending a hearing on the merits at the time of sentencing[.]" N.J.S.A. 2C:51-2(b)(1). However,

In any case in which the issue of forfeiture is not raised in a court of this State at the time of a finding of guilt, entry of guilty plea or sentencing, a forfeiture of public office, position or employment required by this section may be ordered by a court of this State upon application of the county prosecutor or the Attorney General or upon application of the public officer or public entity having authority to remove the person convicted from his public office, position or employment.

[N.J.S.A. 2C:51-2(g) (emphasis added).]

We have said, "This provision was enacted to furnish 'a procedure for applying for a mandatory forfeiture of public employment in the presumably unusual situation where a trial judge has inadvertently failed to comply with N.J.S.A. 2C:51-2a at the time of trial.'" Och, supra, 371 N.J. Super. at 283 (quoting Ercolano, supra, 335 N.J. Super. at 245).

Defendant argues that the University sought forfeiture in this case in the administrative proceedings, and the Merit System Board, although having the power to enter such an order, refused to do so. He contends that the Supreme Court's holding in Moore v. Youth Corr. Inst., 119 N.J. 256 (1990) specifically endorsed such a procedure. However, this overlooks the fact that Moore was decided before section (g) was enacted in 1995. More importantly, as we have already noted in construing section (g),

the apparent purpose of authorizing an application for forfeiture "to a court of this State" was to overrule the part of Moore which held that where a forfeiture of public employment is not ordered immediately upon conviction, the determination whether forfeiture is required must be made "initially by the governmental department in which the employee works, [and] then by the appropriate administrative agencies to which the employee may appeal the departmental decision."

[Ercolano, supra, 335 N.J. Super. at 247 (quoting Moore, supra, 119 N.J. at 266).]

Thus, it is clear that the State appropriately sought an order of forfeiture under section (g) because one was not entered at the time defendant pled guilty in municipal court. The procedure employed in this case fully complied with the statute.

Affirmed.

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 105 S.Ct 1487, 84 L. Ed. 2d 494 (1985).

The order denying the request does not contain a statement of reasons, and we have not been provided with any transcript from the proceedings, if, indeed, one exists. The Attorney General indicates in her brief, however, that the judge denied the request "because defendant allegedly did not provide a factual basis for his guilty plea." From the transcript of the municipal court proceeding, we note this to be true. Defendant did not provide any factual basis for his guilty plea. The issue, however, is not raised on appeal.

These facts were admitted by defendant in his testimony before the ALJ.

The statute does not specifically state when an order of permanent future forfeiture must be entered under subsection (d), though since that penalty is "[i]n addition to the . . . forfeiture set forth in subsection a[]," we assume the Legislature intended that both forfeitures would normally be entered simultaneously if possible.

We note that defendant has not argued, and we therefore do not consider, whether his guilty plea in the municipal court should be vacated because he was unaware of the possible collateral consequence of forfeiture at the time. See Och, supra, 371 N.J. Super. at 284-86 (remanding to allow the defendant to move to withdraw his plea based upon fundamental fairness since, at the time he entered his guilty plea, the prosecutor stated the forfeiture statute did not apply to the offense).

(continued)

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A-5186-07T2

September 9, 2009