BRIAN GREEN v. TOWNSHIP OF DEPTFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1672-09T3

BRIAN GREEN,

Plaintiff-Appellant,

v.

TOWNSHIP OF DEPTFORD,

Defendant-Respondent.

________________________________

July 21, 2011

Submitted December 8, 2010 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-387-08.

Fusco & Macaluso, L.L.C., attorneys for appellant (Robert J. Cascone, on the brief).

Duane Morris, L.L.P., attorneys for respondent (Harvey C. Johnson and Dawnn E. Briddell, of counsel; Ms. Briddell, on the brief).

PER CURIAM

Plaintiff, Brian Green, a Deptford Township police officer, appeals from the order granting summary judgment in favor of defendant, Township of Deptford (Township), and dismissing his cross-motion for summary judgment. We affirm.

Plaintiff was indicted by a Gloucester County grand jury on one count of fourth-degree false swearing, N.J.S.A. 2C:28-2a. The criminal conduct at issue here stemmed from an interview taken of plaintiff by a Gloucester County Prosecutor's Office investigator regarding an alleged assault committed by another Township police officer, John J. Gillespie, against an individual in police custody. Still photos obtained in the investigation appear to depict Officer Gillespie standing over and in apparent contact with the individual in custody, with plaintiff present and looking directly at the incident. Plaintiff, when interviewed, denied witnessing the officer assaulting the individual and told the investigator he did not know on what his eyes were focused.

Through the Fraternal Order of Police (F.O.P.), defense counsel was assigned to represent plaintiff in connection with the indictment. Due to a conflict, however, the attorney initially assigned to represent plaintiff was unable to continue his representation. Consequently, the F.O.P. arranged for the assignment of new counsel on plaintiff's behalf, at no cost to plaintiff. Plaintiff declined the offer and retained private counsel, the firm of Fusco & Malcaluso, to represent him, with the understanding that he would be responsible for the cost of such representation.

The April 6, 2006 retainer agreement plaintiff executed provided that plaintiff would pay, in advance, a fixed fee of $20,000 for legal representation, which represented the entire fee "for preliminary representation/negotiation of disposition up to [g]rand [j]ury." The addendum further stated: "The [c]lient understands that the fixed fee does not include a trial." In accordance with the agreement, the $20,000 was paid on that same date. Four days later, the Fusco & Macaluso firm notified the Township of its representation of plaintiff in connection with the criminal charges and requested approval to do so. The letter further advised that if representation was approved, the firm's compensation would be in accordance with the Township's fee schedule. The Township never approved the representation. Nonetheless, Fusco & Macluso continued with its representation of plaintiff in connection with the pending criminal indictment.

A jury acquitted Gillespie of the charges lodged against him, and on July 30, 2007, the indictment against plaintiff was dismissed. On August 3, 2007, plaintiff's counsel sent a letter to the Township demanding plaintiff's reinstatement and the payment of legal fees.

Also in August 2007, disciplinary charges were initiated against plaintiff alleging thirteen violations of policies and procedures of the Deptford Township Police Department (Department). Plaintiff retained a different law firm to represent him in connection with that matter. The parties reached a settlement that called for plaintiff to plead guilty to one count of neglect of duty surrounding the matter for which he had previously been indicted. In exchange for his guilty plea, the Department reinstated plaintiff, along with back pay and other benefits. The agreement did not include payment of plaintiff's legal fees.

On January 15, 2008, the Fusco & Macaluso firm submitted a legal bill to the Township in the amount of $50,487.50. When defendant refused to pay the legal bill, plaintiff filed a complaint seeking payment of the fees. The Township moved for summary judgment, arguing that plaintiff was not entitled to reimbursement of legal fees in light of his guilty plea to disciplinary charges that arose out of the same facts surrounding the criminal indictment, plaintiff's conduct did not involve the "lawful exercise of police powers in furtherance of official duties[,]" pursuant to N.J.S.A. 40A:14-155, and the Township never approved plaintiff's retention of private counsel to represent him in connection with the criminal charges.

Plaintiff filed a cross-motion seeking summary judgment. He contended the settlement applied only to the administrative proceedings; the statement that formed the basis of the criminal indictment and disciplinary charges was elicited during the course of the performance of his duties and was directly related to the performance of his duties; he was not estopped from seeking reimbursement since the administrative charge to which he pled guilty was unrelated to the criminal charge for which he was indicted; and he was not required to obtain the consent of the Township in retaining private counsel because the charges were brought against him by the Township.

The motion judge issued a written opinion rejecting plaintiff's claimed entitlement to legal fees, noting that contrary to plaintiff's contention, the criminal charge that preceded the indictment was the result of an Internal Affairs investigation conducted by the Gloucester County Prosecutor's Office, not the Township. Thereafter, the court denied plaintiff's motion for reconsideration. The present appeal followed.

On appeal, plaintiff contends the motion judge erred in concluding that the criminal complaint was not brought by the municipality. We disagree and affirm substantially for the reasons expressed by Judge Anne McDonnell in her October 15, 2009 written opinion. We add the following brief comments.

A municipality's obligation to reimburse a police officer for legal fees incurred in defense of a criminal proceeding is triggered where charges arise out of the performance of the officer's duties and are directly related to the lawful exercise of police powers in the furtherance of those official duties. N.J.S.A. 40A:14-155. The criminal conduct at issue here stemmed from an interview taken of plaintiff by an investigator from the Gloucester County Prosecutor's Office conducting an investigation into an alleged assault that plaintiff purportedly witnessed.

Plaintiff, when interviewed, denied witnessing any assault. Although the interview was taken during the course of the performance of plaintiff's duties as a police officer, the false statement given was not in furtherance of his official duties but a perversion of those duties. Gabbianelli v. Twp. of Monroe, 271 N.J. Super. 544, 549 (App. Div.), certif. denied, 137 N.J. 307 (1994). See also Senate County and Municipal Government Committee Statement to the 1986 amendment to N.J.S.A. 40A:14-155, expressing the Legislature's intent to "eliminate the coverage of this section for charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties[.]"

Moreover, plaintiff retained private counsel without first obtaining the Township's consent. Twp. of Edison v. Mezzacca, 147 N.J. Super. 9, 14 (App. Div. 1977) (holding that plaintiff who engages private counsel without first securing the municipality's consent is responsible for his own legal fees).

A