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In re Disciplinary Hearing of Toth

Decided: July 9, 1980.

IN THE MATTER OF THE GENERAL DISCIPLINARY HEARING OF LIEUTENANT JOHN J. TOTH


On appeal from Superintendent, Division of State Police, Department of Law and Public Safety, State of New Jersey.

Seidman, Michels and Devine.*fn1The opinion of the court was delivered by Michels, J.A.D.

Michels

[175 NJSuper Page 256] Appellant Lieutenant John J. Toth appeals from a final decision of Colonel Clinton L. Pagano, Superintendent, Division of State Police, Department of Law and Public Safety, State of New Jersey, finding him guilty of (1) obtaining or making an unauthorized copy of "the Lordi Report" and (2) disseminating a copy of that confidential investigation report to an unauthorized member of the Division of State Police in violation of the rules

and regulations governing the State Police, and imposing a penalty of a one-step reduction in rank to Sergeant First Class and a six-month suspension without pay.

Briefly, this matter arises out of the publication in the New York Daily News of portions of a State Police confidential character and background investigation (commonly referred to as a "4-Way Investigation") on Joseph P. Lordi, chairman of the Casino Control Commission (hereafter referred to as the Lordi Report). The dissemination of that investigatory report was violative of Executive Order No. 48 (1968 N.J. Laws at 1718-1719), directing no disclosures of such documents, and Nero v. Hyland , 76 N.J. 213 (1978), upholding their confidentiality. An investigation followed, revealing that an unauthorized copy of the Lordi Report had been circulated outside of the State Police to then State Senator Raymond Bateman (at that time a gubernatorial candidate) and then to the news media. Lieutenant John S. Rosko claimed that he received a copy of the Lordi Report from Toth and admitted that he had given a copy of the report to Bateman. The report eventually made its way to the news media through the Bateman organization without Senator Bateman's knowledge. Thereafter, Toth and Rosko were suspended from duty without salary or allowances pending the filing and resolution of formal disciplinary charges against them. Toth moved before this court for leave to appeal his suspension, seeking reinstatement and back pay and, alternatively, a resumption of salary and allowances during the period of suspension. We denied Toth's motion.

On August 3, 1978, formal charges were lodged against Toth and subsequently a disciplinary hearing was held before hearing officer Lieutenant Colonel George Quinn.*fn2 Toth's request for an appointment of an independent hearing examiner was denied. [175 NJSuper Page 258] Rosko was called as a witness against Toth, but during the course of his direct examination Rosko invoked his Fifth Amendment privilege against self-incrimination. The disciplinary hearing against Toth was adjourned to enable the State to make application to the Law Division to determine the validity of Rosko's assertion of the privilege. Following a hearing in the Law Division, the trial court ruled that Rosko had properly asserted his privilege. The trial court, however, in response to the State's application, ordered a special proceeding at which Rosko was to testify subject to immunity conferred by N.J.S.A. 2A:81-17.2a2. However, while the trial court ordered this special proceeding, it declined to rule upon "the legality of such a proceeding" or "the subsequent admissibility before the hearing officer of a transcript of such testimony." The special proceeding was held and Rosko testified under a grant of immunity. Toth was not a party to the proceeding at which Rosko was granted immunity or to the special court-ordered proceeding at which Rosko testified and Toth did not cross-examine Rosko at that proceeding. The transcript of Rosko's testimony was then admitted in evidence by the hearing officer at Toth's disciplinary hearing over the latter's objection.

By this appeal Toth seeks (1) a reversal of the final decision of Pagano finding him guilty of the disciplinary charges, (2) dismissal of the charges or, alternatively, a remand for a new hearing before an Administrative Law Judge.

I

Toth contends that the State Police rules and regulations relating to the preparation and handling of the Lordi Report violated our so-called Right to Know Law. N.J.S.A. 47:1A-1 et seq., L. 1963, c. 73. We disagree. "A public record" is defined by the Right to Know Law as a record "required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State . . .." N.J.S.A. 47:1A-2. The Lordi Report was not a record required to be made and maintained by virtue of N.J.S.A. 5:12-52(d), which governs appointments to the Casino Control Commission and provides:

Appointments to the commission shall be made by the Governor with the advice and consent of the Senate. Prior to nomination, the Governor shall cause an inquiry to be conducted by the Attorney General into the nominee's background, with particular regard to the nominee's financial stability, integrity, and responsibility and his reputation for good character, honesty and integrity.

This statute does not require a written record or report of the inquiry to be made or maintained. Accordingly, we hold that the Lordi Report is not a public record within the purview of the Right to Know Law, ...


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