COUNTY OF ESSEX v. DEPARTMENT OF LAW AND PUBLIC SAFETY -
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0725-20
COUNTY OF ESSEX,
Petitioner-Appellant,
v.
DEPARTMENT OF LAW
AND PUBLIC SAFETY,
Respondent-Respondent.
___________________________
Submitted March 21, 2022 – Decided April 11, 2022
Before Judges Sumners and Firko.
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).
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) 1. We affirm.
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
1
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).
A-0725-20
2
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 fitnes s-
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
A-0725-20
3
reasonable amount of time," and "cannot be re-armed."2 (Emphasis added). On
April 10, 2015, the ECPO issued a letter refusing to authorize Patrick's re-
arming, noting Patrick's extensive history of domestic violence incidents and the
February 2014 relapse.
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. 3 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.
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
2
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.
3
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."
A-0725-20
4
of racism and disparate treatment of minorities"; and (4) Patrick's evaluation by
his personal physician. 4 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.
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, 5 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.
4
The record is absent of any information with regard to this evaluation.
5
Patrick v. City of E. Orange, ESX-L-1261-18.
A-0725-20
5
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).6 The letter notes the County made its
"request as a matter of courtesy rather than as a legal necessity on duty." 7 On
March 23, 2018, the OAG rendered a written final decision denying the County's
demand and explaining:
[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, 8 this office is not obligated by Wright
to provide defense and indemnification to the [ECPO].
....
6
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.
7 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").
8
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.
A-0725-20
6
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.
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 re-
arm an officer following a domestic violence incident. 9 On October 7, 2020, the
OAG again denied the County's request for representation. The OAG reaffirmed
its March 23, 2018 final decision, noting:
[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
9
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."
A-0725-20
7
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.
A-0725-20
8
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)).
A-0725-20
9
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
A-0725-20
10
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.
A-0725-20
11
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
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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
A-0725-20
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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
A-0725-20
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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." 10 Moreover, "attorney fees could be appropriate in
10
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
A-0725-20
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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.
" 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
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.
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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; 11 N.J.S.A. 59:10A-2 specifies
three instances when such representation of tort cases
may be refused by the [OAG]; 12 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
11
"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).
12
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.]
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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.]
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:
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18
[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)
A-0725-20
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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
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complaint sounds in tortious conduct. Thus, prior to April 18, 2019, the OAG
was arguably obligated to represent the ECPO. 13
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.
13
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)).
A-0725-20
21
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