New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

In the matter of Gary Stolinski v. State of New Jersey, Division of State Police, A-2412-07T3, the Appellate Division considered whether Gary Stolinski, a New Jersey State Trooper, was entitled to an award of counsel fees pursuant to N.J.S.A. 53:1-30, as a result of having to defend against an indictment charging official misconduct, credit card fraud, and identity theft.

On July 15, 2005, Stolinski was indicted and charged with official misconduct, credit card fraud, and identity theft based on the allegation that he used a State Police computer to make online credit card applications through the use of false information and by assuming the identity of others. Subsequent to being indicted, Stolinski was suspended from the force without pay.   

The indictment was ultimately dismissed on December 15, 2005. Thereafter, Stolinski was reinstated and reimbursed for the pay withheld during his suspension. Stolinski then demanded reimbursement for the counsel fees he expended in defending against the indictment. In response, the Attorney General’s office advised that the request for the payment of legal fees incurred in seeking back pay would be honored. However, the Division rejected the remaining aspects of Stolinski’s request and asserted there was no statutory basis for the reimbursement of attorney fees associated with: (1) the defense of criminal charges; (2) responding to the administrative disciplinary charge; or (3) seeking the expungement of his criminal record. This appeal ensued.

The Appellate Division concluded that the Division’s final agency decision was neither arbitrary, capricious, nor unreasonable because it was based upon a correct understanding of N.J.S.A. 53:1-30 and an accurate application of its terms to the allegations contained in the indictment. N.J.S.A. 53:1-30 provides that a law enforcement officer is entitled to be reimbursed only for those fees incurred “in an action or legal proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of official duties.”   

The Court determined N.J.S.A. 53:1-30 did not provide support for Stolinski’s claim because the allegations of the indictment were not directly related to his lawful exercise of police powers in the furtherance of official duties. In this case, Stolinski was alleged to have used a State Police computer to make false credit card application. Regardless of whether the allegations could or could not be substantiated, it is clear Stolinski was not charged with conduct that was in furtherance of his official duties on that occasion. As a result, the Court affirmed the Division’s determination.       

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In the case of In the Matter of Mark Moncho, Mark Moncho, a Sergeant First Class, appealed a final decision of the Division of State Police finding him in violation of Article VI, Section 2a of the Division’s regulations (performance of duties) and imposing a ten day suspension.

Moncho was assigned to the State Police Construction Inspection Unit. The Construction Unit is a component of the Traffic Bureau and operates as a partnership between the New Jersey State Police and the New Jersey Department of Transportation. In this capacity, Moncho was responsible for overseeing five sergeants who, in turn, supervised subordinate troopers. His responsibilities included: (1) reviewing the patrol charts and weekly reports of the sergeants and the subordinates; (2) time-keeping; and (3) day-to-day supervision of the Construction Unit.

Ultimately, the Division of State Police charged Moncho with violating a series of rules and regulations involving billing and overtime. Moncho pled not guilty to the charges and, on June 28, 2004, the Division transmitted the matter to the Office of Administrative Law. After conducting numerous hearing, the Administrative Law Judge (“ALJ”) concluded: (1) Moncho violated none of the specifications underlying disciplinary charges; and (2) nevertheless, Moncho was guilty of the performance of duties disciplinary charge based solely upon the amount of overtime he had earned. On August 2, 2007, the Division of State Police issued a final decision upholding the ALJ’s decision in its entirety. This appeal ensued.

On appeal, Moncho argued that when the ALJ found that the Division had not met its burden of proof as to the specifications in the charges, the ALJ dismissed all bases of liability of which Moncho had notice. Moreover, Moncho argued the Division’s decision to discipline him absent a showing that he engaged in fraud, misleading conduct, or the violation of a policy is arbitrary and capricious.

In its decision, the Appellate Division agreed with Moncho’s contentions. The Court concluded that the record did not support the Division’s decision and this was further compelled by the ALJ’s incongruous findings. In effect, the ALJ created a new basis on which to justify disciplinary action after hearing and rejecting the official charges and specifications lodged against Moncho. The Court further noted that at no time was Moncho ever notified that the accrual of overtime, in and of itself, could subject him to disciplinary action. Accordingly, the Court determined the final decision of the Division to be arbitrary, capricious, and unreasonable and thereby vacated the penalty imposed. 

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The Associated Press recently reported that a state council on Wednesday, October 22, 2008, struck down New Jersey's plan to have rural towns pay for the state police coverage that they receive due to the fact that the town’s do not have their own police force. The New Jersey Council on Local Mandates effectively voided a plan contained in Gov. Jon Corzine's budget that would have charged small towns who don't have their own police force but instead are provided with public safety coverage by the New Jersey State Police. Corzine has stated that this loss of revenue would have to be absorbed by further cuts in municipal aid.

The Council, which is an independent body created to review the constitutionality of state laws and regulations, said the requirement to force towns to pay for state police was an illegal unfunded mandate. Under New Jersey's Constitution, the Council's decision is final.

Seventy-six New Jersey towns get full-time state police patrols free, while 13 get free part-time patrols, regardless of size, population, taxes and wealth.

This is an interesting proposition as it could be an integral part of the continued push to consolidate municipal services and benefits. As a tax saving measure the Governor’s office has already started an initiative to consolidate smaller school districts within the state.  Public services will certainly follow.  While a reduction of officers on the road is unlikely, it is not too speculative to state that the suggestion of sharing administrative duties between departments may be viewed as a feasible cost saving measure. As the budget gets tighter, taxes go higher, and there is a continual cry from the public for assistance; we may see novel propositions that can have an effect upon the employment of public safety officers and the administrators of public safety departments. Let’s keep an eye on this one.

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