Tuesday, October 2, 2018

Burlington judge upholds Eastampton cop's firing.

In an August 28, 2018 ruling, Burlington County Superior Court Judge Susan L. Claypoole upheld Eastampton Township's October 23, 2017 decision to fire one of its police officers for being untruthful during an internal affairs investigation.

According to Judge Claypoole's 21-page written decision, the Eastampton Police Department's Internal Affairs Unit charged Officer Michael Musser with misusing sick time by calling out sick the day before a scheduled vacation in order to make an early morning airline flight to Florida.  He was also charged with failing to notify his supervisors of his "change of confinement," i.e. that he was on his way to Florida and not home during the day he called out sick.  These charges were relatively minor and the Eastampton Police Department sought a three-day suspension for the first and a two-day suspension for the second.

Much more serious, however, was the Department's charge that Musser lied to Internal Affairs investigators about his flight schedule.  For this charge, the Department sought Musser's termination.

Musser pled not guilty to the charges and a hearing was held over three days in 2017 before Township Manager Eric J. Schubiger, who acted as the hearing officer.  Internal Affairs investigators argued that Musser had scheduled a flight to Orlando that would leave Philadelphia at 7:05 a.m. on August 8, 2016.  Yet, he was scheduled to work from 7 p.m. on August 7, 2016 to 7 a.m. on August 8, 2016. So, according to the Department, Musser called out sick for the night shift to enable him to make his early morning flight. 

Musser, however, claimed that his girlfriend had, in March or April 2016, booked a flight that left Philadelphia at 4 p.m. on August 8, 2016 which would have allowed him enough time to complete his night shift.  He said that he called out sick on August 7th because he was in pain from back spasms and that those spasms kept him up most of the night.  He stated that at some point on August 7, 2016, his girlfriend called Southwest Airlines to see about an earlier flight since he had already called out sick and was up most of the night in pain. He said that he left for the airport at about 5:30 a.m.

Internal Affairs officials, however, said that they became suspicious when Musser called out sick the day before a scheduled vacation.  At Musser's hearing, a Southwest Airlines employee testified that there was no 4 p.m. flight from Philadelphia to Orlando on August 8, 2017 and that Musser's flight had been booked on August 2, 2016 and that tickets purchased were always for the 7:05 a.m., August 8, 2017 flight.  She also testified that Southwest's records show that Musser had the skycap print his boarding pass at 4:41 a.m. which contradicted Musser's claim that he didn't leave for the airport until 5:30 a.m.

Musser's girlfriend testified that she booked the 4 p.m. flight (a flight which the Southwest representative testified did not exist) through a travel agent and that she printed out the confirmation e-mails for the 4 p.m. flight and deleted the e-mails.  She said that she did not have the boarding passes "because she does not keep trash and that [Musser's] e-mail account was hacked so she deleted his account and created a new one after [Musser] was advised by Best Buy to do so."  Musser said that he had no record of having taken his laptop to Best Buy because the store "did not take his computer or have any record."

After hearing the testimony, Hearing Officer Schubiger ruled that Musser "misrepresent[ed] the crucial facts concerning when he booked what flight and why he called out sick. Under these circumstances, and despite the lack of prior discipline for such an offense, the penalty of termination is sustained."  Judge Claypool upheld Schubiger's decision and agreed with Schubiger that "the evidence here demonstrates that [Musser] lied when he represented that his August 8, 2016 flight to Orlando was originally scheduled for 4:00 P.M.; he lied when he claimed that the flight was changed after the original booking; and he lied regarding the time of his departure from his home which he claimed was between 5:30 A.M. and 5:45 A.M."

Judge Claypoole also found that terminating Musser was not too harsh of a penalty because the Attorney General Guidelines and case law establish that "truthfulness goes to the heart of the duties of a police officer."

My September 29, 2018 request to Musser's attorney, Anthony J. Fusco, Jr. of Passaic, inquiring as to whether he will appeal Judge Claypoole's decision to the Appellate Division, had not been answered as of this article's writing.  Musser's lawsuit challenging the lawsuit, which contains several pertinent exhibits including Schubiger's written hearing report, is on-line here.

Middlesex Sheriff's Officer charged with 3rd degree theft and insurance fraud.

In a September 30, 2018 Open Public Records Act (OPRA) request to Middlesex County, Libertarians for Transparent Government, a non-profit I serve as executive director, sought a criminal complaint filed against a County Sheriff's Officer who we heard had been recently charged.  In its response, the County provided an unsigned, two-count criminal complaint filed by the Somerset County Prosecutor's Office charging the 41-year-old officer with 3rd degree theft by deception and 3rd degree insurance fraud.

The officer at issue is Miguel A. Figueroa who has worked for the Middlesex Sheriff's Department since June 30, 2008 at a present annual salary of $96,205.  According to an October 2, 2018 OPRA response from Deputy Middlesex County Counsel Jeanne-Marie Scollo, Figueroa remains employed by the Department.

According to the complaint, Figueroa, who resides in North Brunswick, "creat[ed] or reinforc[ed] a false impression that [he] had received treatment and services for insurance coverage reimbursement" from Horizon Blue Cross "when in fact he had received not [sic] services" between January 1, 2014 and October 13, 2017.  The complaint is undated but was issued under a 2018 docket number suggesting that it was filed this year.

Figueroa is presumed innocent of these charges unless and until his guilt is proven beyond a reasonable doubt.

Tuesday, September 25, 2018

State Ethics Board: Swapping appointment votes is ethically OK as long as the one who votes first resigns a few days before the second vote.

After a three-and-a-half-year investigation, the Local Finance Board (LFB), the primary entity that enforces New Jersey's Local Government Ethics Law (LGEL), ruled that a former Westampton Township (Burlington County) Committeeman did not violate the LGEL by voting to appoint a former Mount Holly Municipal Utilities Authority (MUA) Commissioner to a $90,000 fire chief position two months after the Commissioner had voted to appoint the Committeeman to the MUA's $129,492 executive director post.

According to my February 11, 2015 ethics complaint, Westampton Committeeman Robert Maybury voted "aye" on December 12, 2014 resolution to appoint Jason Carty as Westampton Township's $90,000-per-year fire chief and EMS director.  Carty, who had resigned his MUA Commissioner post two days before Maybury's vote, had on October 9, 2014 voted "aye" on a resolution that appointed Maybury as the MUA's executive director.  According to DataUniverse, the MUA pays Maybury $129,492 a year.

In her September 13, 2018 Notice of Determination, LFB Chairperson Melanie R. Walter wrote that the LFB dismissed my complaint (the New Jersey Libertarian Party joined me in my complaint) for "not having a reasonable factual basis" because "Jason Carty had resigned from his position as MUA Commissioner prior to [Maybury's] vote for him to be Fire Chief and EMS Director of Westampton Township."

Accordingly, it is ethically permissible for Maybury and Carty to both act in their official capacities to appoint each other to paid public jobs provided that Carty had the foresight to resign a few days prior to Maybury's vote.  In my complaint I wrote that "[i]f the Board determines that Carty's eleventh hour resignation from the MUA immunizes [Maybury] from what would have been an ethics violation had he not resigned, such a ruling would hopefully prod the legislature to consider strengthening the LGEL to close up this and other loopholes."

According to the MUA's website, Maybury still serves as its executive director.   In a federal lawsuit, Carty claimed that Westampton improperly eliminated his position and terminated him in April 2016.

Thursday, August 30, 2018

Appeals court invalidates Somerville attorney's fee agreement with LAD client

A three-judge Appellate Division panel, in a published and thus precedential ruling, today invalidated a fee agreement between a Law Against Discrimination client and Somerville attorney Brian M. Cige.  According to the opinion, Cige's fee agreement required his client to pay the greater of the following three calculations: a) Cige's hourly rate of $475 for hours worked on the case, b) 37.5% of the net recovery or c) statutory fees awarded by the court or by way of settlement.  In addition, the client was required to pay all costs and expenses.

According to the opinion, Cige billed his client $286,746.67 after she terminated his services and the client filed a declaratory judgment action to have the fee agreement ruled unenforceable.

The panel found that Cige "failed to discharge his ethical obligation" to fully inform the client of the ramifications of such a fee agreement--namely "that if the case becomes complex and protracted, the hourly rate-based fee the client is responsible to pay can approach or even exceed his or her recovery."  The panel also found that Cige did not inform the client of his costs, including what trial court Judge Yolanda Ciccone found to be an "egregious" charge of $1 for each e-mail Cige sent or received.  One of Cige's invoices included a $1,700 charge for e-mails, according to the opinion.

The opinion, which is 32-pages long, should be required reading for anyone who is going to engage an attorney in what could turn out to be protracted litigation.  The opinion also sets forth fee disclosure requirements for other attorney who are taking on Law Against Discrimination cases.

Wednesday, August 8, 2018

Camden Corrections sergeant indicted for sex assault against female officer, pled guilty to petty disorderly persons offense and retained $43,250 annual pension.

According to an undated Camden County indictment that appears to have been handed down in 2017, a sergeant with the Camden County Department of Corrections was charged with Fourth Degree Criminal Sexual Contact and Second Degree Official Misconduct for "committing an act of sexual contact upon another Camden County Corrections Officer . . . while on duty, specifically by touching [her] vagina over her clothing."  The incident occurred on October 5, 2016 and the female officer, identified in the indictment only by her initials, was 23 years old at the time.

On January 3, 2017, police filed another complaint against the sergeant, identified in the indictment as Joseph N. Antrilli, charging him with the petty disorderly persons offense of harassment.  According to the second page of the harassment complaint, Camden County Superior Court Judge Kathleen M. Delaney accepted Antrilli's guilty plea to the harassment charge on July 24, 2017 and assessed a fine of zero dollars plus $164 in court costs and mandatory assessments.  Judge Delaney also dismissed the indictment, ordered Antrilli to have no contact with the victim and required Antrilli to forfeit his employment with the Camden County Department of Corrections and forever disqualified him "from holding any office or position of honor, trust or profit" in New Jersey or any of its administrative or political subdivisions.

Finally, Judge Delaney sentenced Antrilli to a one-year term of probation but ruled that "probation may terminate" upon Antrilli's payment of the $164 assessment.  In an August 8, 2018 Open Public Records Act (OPRA) response, the Camden County Prosecutor's office claimed that it had no records on file indicating whether or not Antrilli received an early discharge from his probation.

Antrilli's offense came to the attention of the Police and Firemen's Retirement System (PFRS) and was considered by the pension board at its March 12, 2018 meeting.  According to the minutes of that meeting, Antrilli's "misconduct was directly related to his duties as a County Sergeant and his misconduct reflected a high degree of moral turpitude."  The pension board ultimately imposed a partial forfeiture of his service time but still left him with 20 years of honorable service which entitled him to a service retirement pension.  A subsequent OPRA request to the pension board disclosed that Antrilli is currently receiving a monthly pension of $3,604.77 which calculates to $43,257.24 per year.

Tuesday, July 24, 2018

Arbitrator awards Penns Grove patrolman $131K

A July 16, 2018 order signed by Salem County Superior Court Judge Jean S. Chetney affirmed an arbitrator's May 9, 2018 award of $120,000 plus $11,169.99 in interest in favor of a Penns Grove patrolman, but a deficiency notice issued by the court complains that Judge Chetney's order is deficient because it "does not state as to whom the Judgment is entered against."

The award arose out of a 2016 lawsuit filed by Patrolman George Manganaro against the Borough of Penns Grove, the Penns Grove-Carneys Point Regional School District, Mayor John A. Washington, fromer Board of Education member Walter Hudson and former Council member Jeanette R. Jackson.  In his lawsuit, Manganaro claimed that Hudson, Jackson and Washington "attacked and assaulted" him at Penns Grove Middle School on July 10, 2014.  According to a July 13, 2015 news article, Manganaro was at a middle school basketball game to investigate underage drinking when Hudson allegedly confronted him and twice threw him to the floor of the gym.  According to the article, Hudson was sentenced to three years probation as a result of a plea deal that resolved the charges brought against him.

The arbitrator's handwritten report noted that "Walter Hudson, individually" is 100% liable for the "pain and suffering" that Manganaro claimed to have experienced.    Also, a series of summary judgment orders show that the borough, the school district, Washington and Jackson were dismissed from the suit and that all counter-claims and cross-claims against Manganaro were also dismissed.  Accordingly, it appears that Hudson is the only party against whom judgment could have been entered.

The arbitrator's report also noted that the $120,000 award "includes repayment of WC (workers compensation) lien of $48,500."

As a separate matter, according to a November 29, 2017 Philadelphia Inquirer article, Manganaro was suspended from the department after having been charged with aggravated assault for allegedly “kicking an individual in the face while handcuffed.” 

New Jersey Appeals Court: FERPA allows police to get a student's parent's identifying information from school records without a warrant or parental consent.

Police asked a woman for the name of her children's father who police suspected was a burglar.  The woman refused to divulge father's identity but detectives, during questioning, noticed a young child in the woman's household.  Detectives then canvassed local schools and a school principal, who knew the child and the mother, consulted school records and gave detectives the father's identity.  Police, who arrested the father shortly thereafter, had neither a warrant nor either parent's consent to obtain the father's identity from the school's records.

The father moved to suppress, arguing that he had a reasonable expectation of privacy in his personally identifiable information contained in his child's records based on the Family Educational Rights and Privacy Act (FERPA) and the New Jersey Pupil Records Act (NJPRA).  The trial court disagreed and in today's unpublished decision in State v. J.S.G., Docket No. A-4665-14T4, a three-judge Appellate Division panel affirmed. 

First, the panel held that the father's name was not "directory information" (which is excluded from FERPA's protections) and held that parental consent was required before the disclosure of father's name under FERPA.  The panel, however, held that FERPA is merely a funding statute with no mechanism to enforce an improper disclosure.  Since a person has no enforceable rights under FERPA, the panel reasoned that "it logically follows that a person would also have no enforceable Fourth Amendment right for a school's improper disclosure of the name of a student's parent contained school records."

Under the NJPRA, the panel found that the father's identity was similar enough to the type of information contained within the school's "student information directory." "We conclude that the NJPRA does not create an objectively reasonable expectation of privacy in student records recognized by the Fourth Amendment or Article 1, paragraph 7 of the New Jersey Constitution. Accordingly, defendant had no reasonable expectation of privacy in his children's school records, including the paternity information contained therein, and was not entitled to suppression of his name," the panel wrote.