On March 23, 2010, the Appellate Division decided In the Matter of Keith Curry, Vernon Township, Docket No.: A-4662-07T2. In the case, Keith Curry, a police officer with the Vernon Township Police Department (“the Department”), appealed from a final decision of the Merit System Board (“the Board”) rejecting the Administrative Law Judge’s (“ALJ”) initial decision reducing his suspension to 15 days and imposing a 30 day suspension for conduct unbecoming a public employee.

On March 31, 2005, a murder-suicide occurred in Vernon Township. Detective Sean Talt participated in the crime scene investigation and took a photograph of the suicide victim on his cellular telephone. Although not involved in the investigation, Curry asked Talt if he could view the photograph, as he had never been involved in such an investigation. Talt forwarded the photograph to Curry via cellular telephone and advised him not to share the photograph with anyone else, describing it as “for police eyes only.” Despite these instructions, Curry forwarded the photograph to a civilian female friend and told her to view it and delete it. However, before being deleted, this individual’s brother viewed the photograph, forwarded it to his own cellular phone, and shared it with several other members of the public.

Curry was charged with conduct unbecoming a public employee and violation of departmental rules and regulations. As to the latter, the ALJ concluded that the Department had not demonstrated a violation of a rule or regulation, but the ALJ concluded that “appellant’s conduct constituted conduct unbecoming a public employee, as it clearly signaled poor judgment.” 

On appeal, Curry does not challenge the finding, but argues that the 30 day suspension imposed by the Board was excessive. The Appellate Division rejected Curry’s argument and affirmed the Board’s determination. After carefully reviewing the record, the Court found no abuse of discretion and was satisfied the Board’s decision was not arbitrary or capricious and the suspension imposed was justified. According to the Court, the police investigation and the rights of the family may have been compromised by the unlawful distribution of the photograph.  Specifically, the Court indicated that there is a significant difference between sharing evidence with a fellow police officer and exposing the same evidence to the public for no good or valid reason.

The case illustrates the importance of law enforcement officers to not disseminate case evidence to the public and be guided in their use of cellular telephones. Though the technology age and the use of cellular telephones has no doubt aided law enforcement and streamlined certain investigations, they have also increased the exposure of law enforcement officers and increased the likelihood of investigations being compromised.

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.