Saturday, October 15, 2016

Appellate court reverses revocation of handgun carry permit by Middlesex judge who gave no notice to the permit's holder.

In an October 7, 2016 written opinion, the Appellate Division of the New Jersey Superior Court reversed a Middlesex County judge's order that revoked an armored car driver's limited permit to carry a handgun because the permit holder was not given notice of the revocation proceeding and was thus deprived of "an opportunity to be heard."

According to the opinion, Rickey R. Duncanson of Carteret, who worked as a driver and guard for the Garda armored car service, applied in November 2014 to renew his "two-year limited permit to carry a handgun" that was set to expire on January 28, 2015.  The permit allowed Duncanson to carry a handgun during his work assignments and "while proceeding directly to and from work assignments and at no other time or place."  The Superior Court granted Duncanson's application which had been approved by the New Jersey State Police.

But, on January 21, 2015, a Middlesex County Superior Court judge conducted a proceeding without having notified Duncanson, the State Police or the Middlesex County Prosecutor.  During the proceeding, the judge said that he had learned that the permit "had been altered to appear to give Duncanson the unlimited ability to carry a handgun."  After the proceeding, the judge issued an order and mailed it to Duncanson.  The judge based his decision on "public health, safety and welfare" concerns. 

The Appellate Division made no ruling on whether Duncanson's permit should ultimately be renewed.  Rather, the court held only that the judge's "after the fact denial of his application" violated Duncanson's right to due process of law.  The case was remanded back to the same judge with instructions to hold an evidentiary hearing.

Appellate Division decisions never identify judges who are reversed but often identify and praise those whose rulings are affirmed.  I believe that all judges whose rulings are subjected to appeal should be publicly identified.  Accordingly, an Open Public Records Act (OPRA) request was made to the Middlesex County Prosecutor's Office for the order from which Duncanson's appeal was taken.  The response to the OPRA request disclosed that the revocation order was entered by Judge Joseph L. Rea.

Thursday, October 13, 2016

A Hunterdon County lawyer's $67.10 overdrawn trust account led to multiple ethics charges being brought against him.

When a New Jersey lawyer overdraws his or her trust account, Court Rule 1:21-6(b) requires the bank to notify the Office of Attorney Ethics (OAE).  When TD Bank notified the OAE that a Clinton lawyer's trust account was overdrawn by $67.10, the OAE's investigation discovered a lot more than just a minor bookkeeping error.

The January 7, 2015, $67.10 overdraft of Paul F. Clausen's trust account was caused by his withdraw of $250 for fees that he had earned on a case.  But an attorney's fees are supposed to deposited and withdrawn from the lawyer's business account.  A trust account is for money that the lawyer is holding in trust for others.  According to the September 27, 2016 ethics complaint, (Office of Attorney Ethics v. Paul F. Clausen, Docket Nos. XIV-2015-0016E and XIV-2015-0374E), the OAE's investigation revealed 77 instances where Clausen withdrew his fees directly from the trust account, sometimes by way of cash withdraws, rather than issuing a check payable to his business account. 

Ethics officials claim that Clausen was less than truthful when he appeared at the OAE's office on April 23, 2015 for a demand audit.  According to the complaint, Clausen told ethics officials that he had never filed bankruptcy even though court records show that Clausen's Chapter 13 bankruptcy petition had been dismissed only on August 17, 2015--only days before.  The complaint also alleges that Clausen lied about withdrawing cash from his trust account--an act that is specifically prohibited by the court rules--when the bank statements showed multiple $100 cash withdraws having been made from Clausen's trust account. 

Ethics officials claim that while Clausen had a business account, it was frequently overdrawn and that Clausen used his trust account for his business transactions because wanted to avoid having the bank take overdraft fees out of any money he deposited into the business account.  The OAE alleges that Clausen also kept his business account's balance at zero to frustrate his judgment creditors' attempts to levy against his bank accounts.  According to the complaint, three creditors, including a woman named Grace Casement who took a $29,254 default judgment in her malpractice suit against Clausen, attempted to levy on the business account only to find that there was no money in it.

According to the ethics complaint, Clausen's landlord, Meridian Property Group, which also had a judgment against him for unpaid office rent, also unsuccessfully levied against the empty business account.  Meridian, however, was able to execute against Clausen's 2004 Lexus ES330 and have it sold at public auction.  According to the ethics complaint, within a month after his Lexus' seizure, Clausen deposited a $4,500 retainer in his trust account and made a $4,100 cash withdraw from the trust account to make a deposit on another car.

In sum, the OAE alleged that Clausen's "deposit of his earned and unearned legal fees in his trust account and subsequent cash withdrawals therefrom was intended to insulate [Clausen's] personal assets and to attempt to place them beyond the reach of his creditors."

The complaint also accuses Clausen of misleading ethics officials into believing that he had made multiple payments to Casement, the malpractice plaintiff, when he actually had made only one $1,000 payment.  The Supreme Court reprimanded Clausen on January 12, 2016 for gross negligence because he failed to file Casement's personal injury lawsuit before the statute of limitations had run.

At the time of this writing, Clausen had not yet filed an answer to the complaint.  The ethics charges are only allegations--nothing has been proven--and Clausen is entitled to hearing.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238.

Tuesday, October 4, 2016

Court tosses Firemen's Association president's defamation suit against NJ Fireman's Home.

George H. Heflich, Sr.
On March 18, 2016, Morris County Superior Court Judge Robert J. Brennan ordered the attorney for a past president of the New Jersey State Firemen's Association to pay $3,465 toward the attorney fees expended by the New Jersey Firemen's Home and several members of the Home's Board of Managers to stave off the president's unsuccessful defamation lawsuit.

Former New Jersey State Firemen's Association President George H. Heflich, Sr., who recently lost his reelection bid at the Association's September 2016 convention in Wildwood, filed a lawsuit on January 7, 2015 against the New Jersey Firemen's Home, the Home's superintendent Hugh E. Flood and Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry Dedreu, Anthony Grenci, Philip Valese,: Cassmiro Delaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen and Lester V. Denny who are all members of the Home's Board of Managers.  Heflich's lawsuit claimed that he was a whistle blower and that the defendants took action "with the purpose to degrade and humiliate" him.

At the bottom of Heflich's complaint was a January 11, 2014 resolution passed by the Home's Board of Managers that ordered Heflich to "issue letters of apology" to unnamed Home employees that Heflich allegedly harassed.  The resolution also called upon Heflich to attend "a specialized training seminar for sensitivity awareness" and "publicly admonished, censured and reprimanded" Heflich "for his [alleged] inappropriate and unprofessional conduct toward" the Home's staff and officials.

In response to Heflich's lawsuit, the Home and its Board of Managers, through Newark attorney Peter F. Berk, filed a Motion to Dismiss.  In a June 17, 2015 Order, Superior Court Judge Rosemary E. Ramsey agreed and dismissed Heflich's complaint.  Judge Brennan's March 18, 2016 Order required Heflich's attorney, Mark W. Catanzaro of Mount Holly, to pay $3,465 toward the $14,000 in attorney fees the defendants sought.  Judge Brennan's order cited Court Rule 1:4-8(b), entitled "Frivolous Litigation" which allows parties to civil lawsuits to recover their attorney fees from other parties.

Thursday, September 29, 2016

Lawsuit claims that RVCC officials engaged in "unlawful and fraudulent" conduct.

On May 25, 2016, the former head of the Massage Therapy Program filed suit against her former employer, Raritan Valley Community College (RVCC), claiming that she was fired after raising concerns that college officials "perpetrated a fraud" by "improperly receiving grant funds" from state and federal agencies.

In her lawsuit, Marlene Hudson claimed that she was surprised when she was asked to produce curriculum materials for the massage therapy program when she was hired in 2015 because RVCC had been receiving state and federal grants for the program "for several years."

She said that Jacki Belin, RVCC's Vice President for Strategic Programs & Development, "responded angrily" during a September 2015 when Hudson raised her concerns.  Hudson claimed that she was fired at an October 30, 2015 meeting at which Belin, Workforce Director Michelle Boronkas, Vice President of Human Resources & Labor Relations Nancy Moore and Human Resources Director Cheryl Wallace were present.

The allegations in Hudson's complaint are merely allegations--nothing has been proven--and the burden of proof is on Hudson. The matter will either be settled or proceed to a trial.

Saturday, September 24, 2016

Ethics charges brought against South Amboy attorney who counsels two local housing authorities.

On August 26, 2016, the New Jersey Office of Attorney Ethics filed a formal complaint against a South Amboy attorney who allegedly held onto $249,621.60 from a September 27, 2013 real estate sale until finally releasing it to his client on March 24, 2015.  According to the same lawyer's April 11, 2016 Financial Disclosure Statement, he serves as counsel to the Middlesex County Board of Social Services, the Old Bridge Housing & Redevelopment Authority and the South Amboy Housing Authority.

According to the complaint, Thomas E. Downs, IV, who maintains an office at 415 Main Street in South Amboy, was retained to distribute the assets of the estate of Joseph Makara who passed away on March 5, 2013.  One of Makara's assets was real estate in the Parlin section of Sayreville that was sold on September 27, 2013.  Downs deposited the $252,051.93 in sale proceeds into his trust account and, in a series of checks written between September 27, 2013 and February 13, 2014, paid himself $11,250 in legal fees out of those proceeds.. 

According to the ethics complaint, there was little contact between Letitia Makara, the decedent's sister and executrix of his estate, and Downs during the Spring and Summer of 2014 because of Downs' "busy trial schedule."  Ms. Makara's numerous requests to Downs for an account of the estate's funds were allegedly unanswered.  Ms. Makara hired another attorney, Avram Segall, to get an accounting from Downs.  According to the complaint, Downs failed to respond to two letters that Segall had sent him.

It was only after Ms. Makara filed an ethics grievance on February 18, 2015 that Downs finally responded.  According to the complaint, Downs sent Segall $249,621.60 which included the $11,250 in fees that Downs had previously paid to himself.  $1,485 of the difference between the amount Downs received and distributed was spent for the internment of Mr. Makara's ashes.

The ethics complaint, signed by Office of Attorney Ethics Director Charles Centinaro, charges Downs with gross neglect, lack of diligence and failure to communicate with his client.

This isn't Downs' first brush with the attorney disciplinary system.  On March 26, 2016, he was censured for having failed to promptly return $2,500 to a client and for failing to cooperate with ethics authorities.  On April 19, 2013, Downs was admonished for failing to communicate with his client and refusing to cooperate with ethics authorities. 

This is only a summary of the complaint and readers who want more information and context are directed to the filed documents which are on-line at the links above. None of the allegations against Downs have been proven. The charges will be tried before an ethics panel and the burden is on the ethics authorities to prove their allegations.

At the time of this writing, Downs had not yet filed an answer to the complaint.  He has been invited to submit a copy of his answer and if he provides it, his answer will be included in this article.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238.

Tuesday, September 13, 2016

Rumson Police Sergeant files whistleblower lawsuit.

On June 20, 2016, a 20-year veteran with the Rumson Police Department, who has been a sergeant for eleven years, filed a whistleblower lawsuit against the Borough of Rumson (Monmouth County).  Unfortunately, the lawsuit is short on details about the allegedly criminal or unethical acts that the sergeant said that he observed at the police department on May 31, 2015

In his lawsuit, Sergeant Peter Koenig, represented by Richard P. Flaum of Warren, said that he witnessed some events at the police department on May 31, 2015 "that he reasonably and objectively believed were in violation of law, may have been criminal acts or unethical, were a violation of the public policy of the State of New Jersey, and placed the health and safety of members of the public in danger."  After he reported what he witnessed to "to a governmental agency" that was not the Borough of Rumson, he began to suffer discriminatory and retaliatory treatment including being required to take a sham fit-for-duty examination, being stripped of administrative duties and functions and being wrongly investigated and disciplined by the Internal Affairs unit.

Saturday, September 10, 2016

Sussex Corrections Lieutenant forfeits pension over steroid charges.

At its March 14, 2016 meeting, the Police and Firemen's Retirement System (PFRS) Board of Trustees voted to totally forfeit a former Sussex County Corrections Lieutenant's pension benefits because of his "egregious misconduct" of "purchas[ing] illegal steroids for personal use on multiple occasions, and allowing the ongoing sale of such substances on the premises of Sussex County Jail."

The story of steroid use at the Keogh-Dwyer Correctional Facility was first reported by the New Jersey Herald's Bruce A. Scruton in his July 8, 2015 article "Corrections officer suspended after steroid use."  That article, covered the March 2015 arrest of Kevin Cole on steroid and hypodermic needle possession charges.  The article indicated that two other corrections officers were under investigation, but County officials declined to name those officials at that time.

The PFRS minutes, however, show that one of the other officers was Lieutenant Christopher Lynch.  According to the minutes, Lynch "purchased steroids for his personal use from the other officer, and at least once purchased the drugs on the Correctional Facility property." 

The minutes reference an August 10, 2015 settlement agreement between Lynch and the Sussex County Sheriff's Office.  According to the agreement, Lynch tested positive for steroids, was suspended without pay and agreed to be barred from future law enforcement employment in New Jersey.  Lynch also agreed to cooperate in the investigation of charges against other Sheriff's Office employees.

In his response to an Open Public Record Act request, Undersheriff Lee Liddy wrote that Lynch's salary was $109,591 and that he worked for the County from November 15, 1999 until his termination on August 10, 2015.  The PFRS minutes indicate that Lynch was suspended without pay on April 10, 2015.  No criminal charges were brought against Lynch.

Liddy declined to identify the second officer who was, according to Scruton's article, under investigation for steroid use or possession.  In his August 31, 2016 OPRA response, he wrote "there was no separation for the second officer suspended therefore N.J.S.A. 47:1A-10 does not apply, and their Personnel Record is otherwise exempt under N.J.S.A. 47:1A-10.  Therefore, I must deny the request regarding the second officer’s records."