Kaminskas v. New Jersey

Annotate this Case
Justia Opinion Summary

Lieutenant John Kaminskas and Chief Daniel Vaniska, both members of the Union County Police Department, requested defense and indemnification by the Office of the Attorney General in a civil action brought against them for alleged investigatory and prosecutorial misconduct. The Attorney General denied their request on the basis that N.J.S.A. 40A:14-117 imposed such a duty on the county to defend and indemnify its police officers in such matters. The Appellate Division affirmed that decision, and the New Jersey supreme Court affirmed: under N.J.S.A. 40A:14-117 and N.J.S.A. 59:10-4, the Legislature provided that each county -- not the Attorney General -- was responsible for defending and potentially indemnifying its police officers.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                  Lieutenant John Kaminskas v. State (A-31-17) (080128)

Argued September 26, 2018 -- Decided January 17, 2019

FERNANDEZ-VINA, J., writing for the Court.

       Lieutenant John Kaminskas and Chief Daniel Vaniska, who were both members of
the Union County Police Department, requested defense and indemnification by the Office of
the Attorney General (Attorney General) in a civil action brought against them for alleged
investigatory and prosecutorial misconduct. The Attorney General denied their request on
the basis that it is a county’s duty, under  N.J.S.A. 40A:14-117, to defend and indemnify its
police officers in such matters. The Appellate Division affirmed that decision, and the Court
now considers whether defense and indemnification were properly denied.

        This civil action arises out of a criminal matter. In 2006, Emmanuel Mervilus was
arrested and charged with robbery, aggravated assault, and a weapons offense. Mervilus,
who maintained his innocence, agreed to take a polygraph examination and stipulated to its
admissibility at trial. Lieutenant Kaminskas administered Mervilus’s polygraph
examination. At trial, Lieutenant Kaminskas testified that he frequently administered
polygraph examinations on behalf of the Union County Prosecutor’s Office (UCPO) because
it did not employ a polygraphist. At the time Lieutenant Kaminskas administered Mervilus’s
polygraph examination, Daniel Vaniska was Chief of the Union County Police Department.

        Lieutenant Kaminskas testified at Mervilus’s trial as the State’s polygraph expert. He
testified that polygraph tests differentiate reactions of persons who are “telling the truth” and
those who are “lying” and thus innocent or guilty. He testified that polygraph examinations
are “not just a lie detector [but] also a truth indicator.” He further testified that in his opinion
Mervilus “wasn’t telling the truth.” A jury convicted Mervilus of first-degree robbery and
aggravated assault.

        The Appellate Division reversed his convictions and remanded the matter for a new
trial. State v. Mervilus,  418 N.J. Super. 138, 148 (App. Div. 2011). The Appellate Division
found that Lieutenant Kaminskas’s testimony was improper because it may have led the jury
to “perceive polygraph evidence as infallible” and to “give it disproportionate weight in
deciding to convict or acquit.” Id. at 147. On remand, Mervilus was retried and acquitted of
all charges. Mervilus filed a complaint against Lieutenant Kaminskas, Chief Vaniska, and
two Union County prosecutors, among others, asserting claims for wrongful prosecution and
conviction. The complaint alleged that the polygraph examination and Lieutenant
Kaminskas’s testimony were contributing causes to his wrongful conviction and prosecution.
                                                 1
        Lieutenant Kaminskas, Chief Vaniska, and the Union County prosecutors requested
that the Attorney General defend and indemnify them pursuant to Wright v. State,  169 N.J. 422 (2001). The Attorney General agreed to defend and indemnify the county prosecutors
but not Lieutenant Kaminskas or Chief Vaniska. The Attorney General noted that Wright
requires it to defend and indemnify county prosecutors in appropriate circumstances but does
not extend to county police officers. In addition, the Attorney General asserted that  N.J.S.A.
40A:14-117 requires each county to defend its police officers.

       Lieutenant Kaminskas and Chief Vaniska appealed the Attorney General’s decision.
The Appellate Division agreed with the Attorney General’s reasoning and affirmed. The
Court granted the officers’ petition for certification.  231 N.J. 557 (2017).

HELD: Under  N.J.S.A. 40A:14-117 and  N.J.S.A. 59:10-4, the Legislature has provided that
each county -- not the Attorney General -- is responsible for defending and potentially
indemnifying its police officers.

1. As part of the Tort Claims Act, the Legislature has set forth a detailed statutory scheme to
govern the defense and indemnification of government employees sued for actions taken in
the course of their employment. Pursuant to  N.J.S.A. 59:10A-1, “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 an
act or omission in the scope of his employment.” When the Attorney General is required to
defend a State employee under that statute, then “the State shall provide indemnification for
the State employee.”  N.J.S.A. 59:10-1. In addition to those provisions pertinent to State
employees, the Tort Claims Act addresses the indemnification of other public servants.
Although the Act uses permissive language as to the indemnification of employees of local
public entities in  N.J.S.A. 59:10-4, it elsewhere creates an affirmative duty to defend county
police officers under certain circumstances. As relevant here,  N.J.S.A. 40A:14-117 provides
that “[w]henever a member or officer of a county police . . . department or force is a
defendant in any action or legal proceeding arising out of or incidental to the performance of
his duties, the governing body of the county . . . shall provide said member or officer with
necessary means for the defense of such action or proceeding.” (pp. 10-12)

2. Wright came before this Court as an interlocutory appeal filed during a civil suit brought
“against several defendants including thirteen employees of the SCPO,” in which the
plaintiff stated claims for false arrest and invasion of privacy based on withheld evidence.
 169 N.J. at 429, 430-31. Somerset County requested representation and indemnification on
behalf of the SCPO’s employees and, when the Attorney General denied the request, filed
cross-claims against the State. Ibid. The Court first noted that  N.J.S.A. 2A:158-7, which
provides for the payment by the county treasurer, subject to certain limitations, of “[a]ll
necessary expenses incurred by the prosecutor for each county in the detection, arrest,
indictment and conviction of offenders against the laws,” did not resolve the issue of defense
and indemnification. Id. at 443-44. Then, the Wright Court noted the “dual or hybrid status”
of county prosecutors, id. at 454, and determined “that when county prosecutors and their
subordinates are involved in the investigation and enforcement of the State’s criminal laws,
                                               2
they perform a function that has traditionally been the responsibility of the State and for
which the Attorney General is ultimately answerable,” id. at 455. Because county
prosecutors and their subordinates essentially function as State employees under those
circumstances, the Court concluded that “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.” Ibid. Significantly, the Court underscored “that the Legislature intended a sharp
distinction between State employees and employees of other public entities that may be
indemnified by such entities” but determined that “that distinction did not contemplate public
employees, such as county prosecutors, who have a hybrid status.” Id. at 455. (pp. 12-16)

3. N.J.S.A. 40A:14-117’s language is clear and unambiguous -- and it applies here:
Lieutenant Kaminskas and Chief Vaniska are “defendant[s]” in the underlying civil action,
and that action “aris[es] out of . . . the performance of [their] duties.” Accordingly,  N.J.S.A.
40A:14-117 mandates that the “governing body of” Union County defend Lieutenant
Kaminskas and Chief Vaniska in the underlying civil action, and Union County is therefore
responsible for indemnifying them pursuant to  N.J.S.A. 59:10-4. In Wright, the Court
considered the “unique role” of county prosecutors in the face of uncertainty in the
relationship between the statute governing county reimbursement of expenses of the county
prosecutor,  N.J.S.A. 2A:158-7, and the TCA’s clear grant of indemnification and defense
costs for state employees. Wright,  169 N.J. at 443-44. Here, however, faced with the clarity
of  N.J.S.A. 40A:14-117, which did not exist for  N.J.S.A. 2A:158-7, there is no reason to look
beyond the Legislature’s clear mandate. To extend Wright’s function-based analysis to the
officers here would frustrate the detailed liability structure the Legislature has enacted. As
the Appellate Division noted, interpreting  N.J.S.A. 59:10A-1 to cover Lieutenant Kaminskas
and Chief Vaniska would result in an unnecessary conflict between  N.J.S.A. 59:10A-1 and
 N.J.S.A. 40A:14-117. The Court declines to extend Wright in a manner that would create
such conflict. The Attorney General is not required to defend and indemnify Lieutenant
Kaminskas or Chief Vaniska. (pp. 16-18)

       AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’S opinion.




                                               3
          SUPREME COURT OF NEW JERSEY
               A-
31 September Term 2017
                          080128


  Lieutenant John Kaminskas and Chief Daniel Vaniska
        of the Union County Police Department,

                  Plaintiffs-Appellants,

                            v.

State of New Jersey, Department of Law and Public Safety,
             Office of the Attorney General,

                 Defendant-Respondent.

          On certification to the Superior Court,
                    Appellate Division.

         Argued                        Decided
    September 26, 2018             January 17, 2019


   Steven H. Merman, Assistant County Counsel, argued
   the cause for appellants (Robert E. Barry, Union
   County Counsel, attorney; Steven H. Merman, on the
   brief).

   Daniel M. Vannella, Deputy Attorney General, argued
   the cause for respondent (Gurbir S. Grewal, Attorney
   General, attorney; Melissa H. Raksa, Assistant
   Attorney General, of counsel; Daniel M. Vannella and
   Benjamin H. Zieman, Deputy Attorneys General, on
   the brief).

   Victoria A. Flynn submitted a brief on behalf of
   amicus curiae Monmouth County Prosecutor’s Office
                             1
            (GluckWalrath, attorneys; Michael D. Fitzgerald,
            Monmouth County Counsel, and Andrew Bayer, of
            counsel and on the brief; and Victoria A. Flynn, on the
            brief).

            Cindy Nan Vogelman submitted a brief on behalf of
            amici curiae County of Hudson and the New Jersey
            Association of Counties (Chasan Lamparello Mallon
            & Cappuzzo, attorneys; Cindy Nan Vogelman, of
            counsel and on the brief; and Kirstin Bohn, on the
            brief).


      JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.


      Lieutenant John Kaminskas and Chief Daniel Vaniska, who were both

members of the Union County Police Department, requested defense and

indemnification by the Office of the Attorney General (Attorney General) in a

civil action brought against them for alleged investigatory and prosecutorial

misconduct. The Attorney General denied their request on the basis that it is a

county’s duty, under  N.J.S.A. 40A:14-117, to defend and indemnify its police

officers in such matters. The Appellate Division affirmed that decision.

      We agree with the Appellate Division and thus affirm its judgment.

Under  N.J.S.A. 40A:14-117 and  N.J.S.A. 59:10-4, the Legislature has provided

that each county -- not the Attorney General -- is responsible for defending and

potentially indemnifying its police officers. Neither this Court’s decision in

Wright v. State,  169 N.J. 422 (2001), nor  N.J.S.A. 59:10A-1 provides


                                        2
otherwise. The Attorney General is accordingly not required to defend and

indemnify Lieutenant Kaminskas or Chief Vaniska.

                                        I.

                                        A.

      This civil action arises out of a criminal matter. In 2006, Emmanuel

Mervilus was arrested and charged with first-degree robbery, contrary to

 N.J.S.A. 2C:15-1; aggravated assault, contrary to  N.J.S.A. 2C:12-1(b); and

third-degree possession of a weapon for an unlawful purpose, contrary to

 N.J.S.A. 2C:39-4(d). Mervilus, who maintained his innocence, agreed to take

a polygraph examination and stipulated to its admissibility at trial.

      Lieutenant Kaminskas administered Mervilus’s polygraph examination.

At trial, Lieutenant Kaminskas testified that he frequently administered

polygraph examinations on behalf of the Union County Prosecutor’s Office

(UCPO) because it did not employ a polygraphist. At the time Lieutenant

Kaminskas administered Mervilus’s polygraph examination, Daniel Vaniska

was Chief of the Union County Police Department.

      Lieutenant Kaminskas testified at Mervilus’s trial as the State’s

polygraph expert. He testified that polygraph tests differentiate reactions of

persons who are “telling the truth” and those who are “lying” and thus

innocent or guilty. He testified that polygraph examinations are “not just a lie


                                        3
detector [but] also a truth indicator.” He further testified that in his opinion

Mervilus “wasn’t telling the truth.” A jury convicted Mervilus of first-degree

robbery and aggravated assault.

      The Appellate Division reversed his convictions and remanded the

matter for a new trial. State v. Mervilus,  418 N.J. Super. 138, 148 (App. Div.

2011). The Appellate Division found that Lieutenant Kaminskas’s testimony

was improper because it may have led the jury to “perceive polygraph

evidence as infallible” and to “give it disproportionate weight in deciding to

convict or acquit.” Id. at 147. The error in admitting that improper testimony

was prejudicial, the panel found, because “the State’s evidence against

defendant [could not be described] as overwhelming” and “[t]he improper

polygraph testimony could have made a difference to the outcome.” Ibid. On

remand, Mervilus was retried and acquitted of all charges.

                                        B.

      In November 2014, Mervilus filed a complaint against Lieutenant

Kaminskas, Chief Vaniska, and two Union County prosecutors involved in his

criminal proceedings, among others, in the United States District Court for the

District of New Jersey. As is relevant here, Mervilus’s complaint asserted

claims for wrongful prosecution and conviction under federal and state statutes

and the common law. The complaint alleged that the State’s use of a


                                         4
polygraph examination and Lieutenant Kaminskas’s testimony were

contributing causes to his wrongful conviction and prosecution.

      Lieutenant Kaminskas, Chief Vaniska, and the Union County

prosecutors requested that the Attorney General defend and indemnify them

pursuant to Wright. The Attorney General agreed to defend and indemnify the

county prosecutors but not Lieutenant Kaminskas or Chief Vaniska. The

Attorney General noted that Wright requires it to defend and indemnify county

prosecutors in appropriate circumstances but does not extend to county police

officers. In addition, the Attorney General asserted that  N.J.S.A. 40A:14-117

requires each county to defend its police officers. Lieutenant Kaminskas and

Chief Vaniska appealed the Attorney General’s decision.

      The Appellate Division agreed with the Attorney General’s reasoning

and affirmed. The panel determined first that  N.J.S.A. 40A:14-117 requires

counties to defend their police officers. The appellate panel then considered

 N.J.S.A. 59:10A-1 to -6 and concluded that the Attorney General’s duty to

defend, as established in those statutes, applies only to “active and former

'state employees.’” Finally, the panel reasoned that the “narrow exception

established in Wright . . . applies only to county prosecutors and their

employees.” The Appellate Division found it inappropriate to extend Wright

to cover county police officers because that extension would, in the Appellate


                                        5
Division’s view, “create an unnecessary conflict between  N.J.S.A. 40A:14-117

and  N.J.S.A. 59:10A-1 to -6.”

      We granted the officers’ petition for certification,  231 N.J. 557 (2017),

and granted amicus curiae status to the County of Hudson, the New Jersey

Association of Counties, and the Monmouth County Prosecutor’s Office

(MCPO).

                                        II.

                                        A.

      Lieutenant Kaminskas and Chief Vaniska contend they are entitled to

defense and indemnification by the Attorney General based on “the same

theory of Wright” because they, like the members of the Somerset County

Prosecutor’s Office (SCPO) in Wright, were “non-state employees who were

acting as an 'arm of the State.’” The officers argue that Lieutenant

Kaminskas’s actions in this case “did not arise of and were not incidental to

his employment” with the county police department, but were instead

undertaken for the UCPO. Stressing that they acted “for the sole benefit and at

the exclusive direction of the UCPO” in all matters connected to this case, the

officers assert that fairness and justice require that they “be given the same

protection granted to the UCPO’s employees.”




                                        6
      The officers add that the Appellate Division’s approach is unduly rigid

given that the Attorney General would be required to defend and indemnify

employees of the prosecutor’s office if those employees had performed the

same functions that Lieutenant Kaminskas and Chief Vaniska performed

during Mervilus’s criminal trial. According to the officers, the mere fact that

the UCPO called upon Lieutenant Kaminskas to “fill a void within the

[UCPO]” by performing those duties rather than have someone on the UCPO

payroll administer and testify about the polygraph test should not make a

difference as to defense and indemnification. The officers point to the

inclusion of “servants” of the State in the Tort Claims Act’s definition of

“employee” in support of their argument that the Act’s defense and

indemnification provisions can extend to them under the circumstances of this

case. And the officers contend that Wright requires a context-specific analysis

that extends beyond the employer-employee relationship to look at the

function performed by the individuals involved.

                                       B.

      The Attorney General urges us to affirm the Appellate Division’s

judgment and stresses that Wright does not apply to county police officers

because Wright specifically addressed the defense and indemnification of

county prosecutors and the employees of the county prosecutor’s office.


                                        7
According to the Attorney General, the Wright Court reached its holding “that

county prosecutors and their employees should be defended and indemnified

by the State to the extent they engage in investigation and enforcement of the

criminal laws” based on two considerations: first, the Attorney General

maintains supervisory control over the county prosecutors; and second, county

“prosecutor’s office employees [are] not guaranteed defense and

indemnification from the county.” Unlike employees of the county

prosecutor’s office, the Attorney General contends, county police officers, by

statute, remain under their employing county’s control at all times, and

 N.J.S.A. 40A:14-117 provides that the county that employs a particular officer

must defend that officer from certain legal actions. Interpreting  N.J.S.A.

59:10A-1 and  N.J.S.A. 59:1-3 to cover county police officers would, in the

Attorney General’s view, conflict with  N.J.S.A. 40A:14-117.

                                       C.

      Amici curiae the County of Hudson and the New Jersey Association of

Counties (together, the Counties) argue that the Attorney General is required to

defend and indemnify Lieutenant Kaminskas and Chief Vaniska pursuant to

Wright because they worked for the State during Mervilus’s criminal trial.

The Counties contend that when county police officers work under the

prosecutor’s supervision, they are not supervised by the county and should


                                       8
thus receive defense and indemnification from the Attorney General, not the

county. According to the Counties, requiring the county to defend and

indemnify a police officer who works under the control of the prosecutor’s

office is unjust and may discourage counties from allowing their officers to

work under the control of the prosecutor’s office.

      The Monmouth County Prosecutor’s Office (MCPO), as amicus curiae,

agrees that, pursuant to Wright, the Attorney General should be required to

defend and indemnify county police officers who work for the prosecutor’s

office. The MCPO expresses concern that the Appellate Division’s decision

will prevent prosecutors from presenting the testimony of county police

officers during criminal trials.

                                       III.

      We review de novo an agency’s interpretation of a statute and legal

conclusions. Lavezzi v. State,  219 N.J. 163, 172 (2014). “The starting point

of all statutory interpretation [is] the language used in the enactment.” DCPP

v. Y.N.,  220 N.J. 165, 178 (2014) (citing Farmers Mut. Fire Ins. Co. of Salem

v. N.J. Prop.-Liab. Ins. Guar. Assoc.,  215 N.J. 522, 536 (2013)). “If the

Legislature’s intent is clear from the statutory language and its context with

related provisions, we apply the law as written.” Shelton v. Restaurant.com,

Inc.,  214 N.J. 419, 429 (2013) (citing Lozano v. Frank DeLuca Constr., 178


                                         9 N.J. 513, 522 (2004)). “We turn to extrinsic tools to discern legislative intent

. . . only when the statute is ambiguous, the plain language leads to a result

inconsistent with any legitimate public policy objective, or it is at odds with a

general statutory scheme.” Ibid. (first citing Wilson ex rel. Manzano v. City

of Jersey City,  209 N.J. 558, 572 (2012), and then citing DiProspero v. Penn,

 183 N.J. 447, 492-93 (2005)).

                                       IV.

                                        A.

      As part of the Tort Claims Act, the Legislature has set forth a detailed

statutory scheme to govern the defense and indemnification of government

employees sued for actions taken in the course of their employment. Pursuant

to  N.J.S.A. 59:10A-1, “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 an act or omission in the scope of his employment.” The Attorney

General may refuse to defend an action that falls within section 59:10A-1 only

if the Attorney General “determines that” (a) “the act or omission was not

within the scope of employment,” (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 proceedings by the Attorney General would create a conflict of


                                        10
interest between the State and the employee or former employee.”  N.J.S.A.

59:10A-2. When the Attorney General is required to defend a State employee

under that statute, then “the State shall provide indemnification for the State

employee.”  N.J.S.A. 59:10-1. The Tort Claims Act defines an employee as

“an officer, employee, or servant, whether or not compensated or part-time,

who is authorized to perform any act or service,” but “the term [employee]

does not include an independent contractor.”  N.J.S.A. 59:1-3.

      In addition to those provisions pertinent to State employees, the Tort

Claims Act addresses the indemnification of other public servants.  N.J.S.A.

59:10-4 empowers “[l]ocal public entities . . . to indemnify local public

employees consistent with the provisions of this act,” and specifies that

            [a] local public entity may indemnify an employee of
            the local public entity for exemplary or punitive
            damages resulting from the employee’s civil violation
            of State or federal law if, in the opinion of the
            governing body of the local public entity, the acts
            committed by the employee upon which the damages
            are based did not constitute actual fraud, actual malice,
            willful misconduct or an intentional wrong.

      Although the Tort Claims Act uses permissive language as to the

indemnification of employees of local public entities, the Act elsewhere

creates an affirmative duty to defend county police officers under certain

circumstances. As relevant here,  N.J.S.A. 40A:14-117 provides that



                                       11
            [w]henever a member or officer of a county police, or
            county park police, department or force is a defendant
            in any action or legal proceeding arising out of or
            incidental to the performance of his duties, the
            governing body of the county, or county park
            commission, as the case may be, shall provide said
            member or officer with necessary means for the defense
            of such action or proceeding.

      The parties and amici disagree about whether N.J.S.A. 40A:14-117’s

imposition of a duty of defense upon the county of employment should govern

here, or whether the State should defend and indemnify the officers to the

extent that they acted to further a State prosecution. The disagreement stems

from conflicting interpretations of Wright.

                                        B.

      Wright came before this Court as an interlocutory appeal filed during a

civil suit brought “against several defendants including thirteen employees of

the SCPO.”  169 N.J. at 429. Plaintiff Isaac Wright was arrested and convicted

of several drug-related offenses. Id. at 430. One of his convictions was

reversed on direct appeal; two years later, his remaining convictions were

reversed by way of post-conviction relief after “[t]he court found that high-

ranking Somerset County law-enforcement officials concealed evidence of the

illegal search for and seizure of cocaine used at Wright’s trial” and that the

former Somerset County Prosecutor “knew about, but concealed, the terms of a

favorable plea agreement with one of the co-defendants who was a State’s
                                        12
witness at Wright’s trial.” Id. at 431. While Wright challenged his

convictions, he and his wife also filed a civil complaint alleging, in part, that

“former Somerset County Prosecutor Nicholas L. Bissell, Jr., and several

employees of the SCPO . . . , among others, acted to effect his false arrest and

to invade his privacy.” Id. at 430-31. Wright later joined the State as a

defendant. Id. at 432.

      Before the State was joined, “Somerset County sent the Attorney

General a letter requesting representation and indemnification on behalf of the

SCPO’s employees whom Somerset County was then representing.” Ibid.

When the Attorney General denied the request, the SCPO employees and other

defendants filed “cross-claims against the State for vicarious liability,

indemnification and defense costs.” Ibid. The trial court granted the State’s

motion for summary judgment on the vicarious liability claim and dismissed

the claims for defense and indemnification. Id. at 434. On a motion for leave

to appeal, we reversed as to all three of those claims. Id. at 452-53, 456.

      We determined the dispositive issue to be “whether the SCPO employees

can be considered 'State employees’” for purposes of the Tort Claims Act,

 N.J.S.A. 59:1-3. Id. at 444. The Court first noted that  N.J.S.A. 2A:158-7,

which provides for the payment by the county treasurer, subject to certain

limitations, of “[a]ll necessary expenses incurred by the prosecutor for each


                                        13
county in the detection, arrest, indictment and conviction of offenders against

the laws,” did not resolve the issue of defense and indemnification. Id. at 443-

44. Then, the Wright Court noted the “dual or hybrid status” of county

prosecutors:

               It is well established that when 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.

               [Id. at 454 (quoting Coleman v. Kaye,  87 F.3d 1491,
               1499 (3d Cir. 1996)).]

In light of that hybrid status and having determined that the TCA should be

predominant in its analysis, the Court reasoned that its inquiry 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. We determined “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




                                           14
responsibility of the State and for which the Attorney General is ultimately

answerable.” Id. at 455.

      Because county prosecutors and their subordinates essentially function

as State employees under those circumstances, we concluded that “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. ” Ibid.

      Applying that test to the facts of the case, the Wright Court held “that

the State of New Jersey may be required to indemnify and defend SCPO’s

prosecutors and their subordinates for tortious conduct committed during the

investigation, arrest, and prosecution of Isaac Wright, under the relevant

provisions of the [Tort Claims Act].” Id. at 456. The Court remanded to the

trial court to determine whether defense and indemnification was appropriate

or whether one of the exceptions in  N.J.S.A. 59:10A-2 applied. Ibid.

      Significantly, we underscored “that the Legislature intended a sharp

distinction between State employees and employees of other public entities

that may be indemnified by such entities,” but we determined that “that

distinction did not contemplate public employees, such as county prosecutors,

who have a hybrid status.” Id. at 455. Instead, we were “persuaded that the

statutory language used in  N.J.S.A. 59:1-3 did not take into account the unique


                                       15
role of county prosecutorial employees, paid by the county, but performing a

State law enforcement function under State supervisory authority.” Id. at 455-

56. Thus, “[t]o vindicate the legislative purpose of providing defense and

indemnification to public employees performing an essential State function,

we interpret[ed] the defense and indemnification provisions of the [Tort

Claims Act] to apply to county prosecutorial employees sued on the basis of

actions taken in the discharge of their law enforcement duties.” Id. at 456.

                                         V.

      The officers and their amici urge that the logic set forth in Wright

applies with equal force to them, inasmuch as all the actions by Lieutenant

Kaminskas that Mervilus has challenged pertain to Mervilus’s prosecution by

the State. But that argument ignores a statute that explicitly governs the

defense of county police officers in actions such as this one.  N.J.S.A. 40A:14-

117’s language is clear and unambiguous -- and it applies here: Lieutenant

Kaminskas and Chief Vaniska are “defendant[s]” in the underlying civil

action, and that action “aris[es] out of . . . the performance of [their] duties.”

Accordingly,  N.J.S.A. 40A:14-117 mandates that the “governing body of”

Union County defend Lieutenant Kaminskas and Chief Vaniska in the

underlying civil action. Union County is therefore responsible for

indemnifying Lieutenant Kaminskas and Chief Vaniska pursuant to N.J.S.A.


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59:10-4. Because the Legislature has clearly identified the county of

employment as the entity responsible for defending and indemnifying county

police officers, our inquiry ends. See Shelton,  214 N.J. at 429.

      In Wright, this Court analyzed the “hybrid status” of county prosecutors

because the “statutory language used in  N.J.S.A. 59:1-3 did not take into

account the unique role of” county prosecutors.  169 N.J. at 455-56. Stated

simply, in Wright this Court considered the “unique role” of county

prosecutors in the face of uncertainty in the relationship between the statute

governing county reimbursement of expenses of the county prosecutor,

 N.J.S.A. 2A:158-7, and the TCA’s clear grant of indemnification and defense

costs for state employees, Wright,  169 N.J. at 443-44. Here, however, faced

with the clarity of  N.J.S.A. 40A:14-117, which did not exist for  N.J.S.A.

2A:158-7, we have no reason to look beyond the Legislature’s clear mandate.

      To extend Wright’s function-based analysis to the officers here,

moreover, would frustrate the detailed liability structure the Legislature has

enacted, which delineates and allocates the responsibilities to defend and

indemnify different categories of employees to specific governmental entities.

The “Legislature intended a sharp distinction between State employees and

employees of other public entities that may be indemnified by such entities,”

Wright,  169 N.J. at 455 -- and Lieutenant Kaminskas and Chief Vaniska


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clearly fall within the latter category, regardless of the type of work they were

performing in this case. As the Appellate Division noted, interpreting  N.J.S.A.

59:10A-1 to cover Lieutenant Kaminskas and Chief Vaniska would result in an

unnecessary conflict between  N.J.S.A. 59:10A-1 and  N.J.S.A. 40A:14-117.

See State ex rel. J.S.,  202 N.J. 465, 480 (2010) (“[W]hen [statutory]

construction involves the interplay of two or more statutes, we seek to

harmonize the [statutes], under the assumption that the Legislature was aware

of its actions and intended for cognate provisions to work together.”);

DiProspero,  183 N.J. at 496-98 (declining to create a conflict between a

statute’s preamble and text). We decline to extend Wright in a manner that

would create such conflict.

      In short, the Legislature has provided that each county -- not the

Attorney General -- is responsible for defending and potentially indemnifying

its police officers. Accordingly, the Attorney General is not required to defend

and indemnify Lieutenant Kaminskas or Chief Vaniska.

                                       VI.

      For the reasons detailed above, we affirm the judgment of the Appellate

Division.

    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-
VINA’S opinion.


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