On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave of this court defendant City of Bayonne appeals from a summary judgment of the Law Division entered in favor of plaintiffs Walter Kantor and his attorney, Leonard Meyerson, declaring that it is legally liable to pay legal fees and costs incurred by Kantor in his successful defense against criminal charges.
Kantor, a member of the Bayonne Police Department, was indicted, together with others, by the Hudson County grand jury, and charged with (1) conspiracy to break and enter Rollins Terminal, Inc.'s tank area, and to steal, in violation of N.J.S.A. 2A:94-1 and N.J.S.A. 2A:119-2; (2) breaking and entering Rollins Terminal with intent to steal, in violation of N.J.S.A. 2A:94-1; (3) entering Rollins Terminal without breaking, with intent to steal, in violation of N.J.S.A. 2A:94-1; (4) attempted theft of property in the care, custody and control of Rollins Terminal, in violation of N.J.S.A. 2A:119-2 and N.J.S.A. 2A:85-5, and (5) misconduct in office, in violation of N.J.S.A. 2A:85-1. All of these criminal charges arose out of conduct and activities in which Kantor was engaged while moonlighting as a part-time security guard employed by Rollins Terminal in Bayonne, New Jersey.
The State claimed that Kantor offered to bribe Carlos Sanchez, a gauger employed by Rollins Terminal, in order to gain his cooperation in a plan to steal chemicals stored at the terminal. According to Sanchez, Kantor approached him to "'doctor'
the books and incorrectly report the amount of chemicals removed from the chemical storage tanks, so that Kantor could remove and sell the chemical products to his [Kantor's] contact and Rollins Terminal would not find the loss." Sanchez also claimed that Kantor had told him that he [Sanchez] "could make 'really big money' -- $50,000 cash -- if [Sanchez] could tell the insurance company that it was possible for a tank to leak all of the product," and that "[t]his way it would make it appear that the storage tank had leaked everything into the bay." Kantor also told Sanchez that the "plan was to take everything out of the storage tank in a barge and leave the valve open so it would appear [that] the tank leaked into the bay." Sanchez subsequently reported his conversations with Kantor to his immediate superior who, in turn, informed the terminal manager. Subsequently, the Bayonne police were notified and surveillance was set up which resulted in the arrest of Kantor.
Kantor was tried, and at the conclusion of the evidence the trial judge dismissed certain of the charges and submitted others, including the misconduct in office charge, to the jury. The jury acquitted Kantor on all remaining charges submitted. Thereafter, Kantor asked defendant to pay for his legal fees and expenses, which the defendant refused to do, and this action was instituted. Kantor and Meyerson claim that Kantor is entitled to reimbursement under the statute because the criminal charges were initiated by defendant and resulted favorably to Kantor. On cross-motions for summary judgment, the trial judge entered judgment in favor of Kantor and Meyerson, directing defendant to pay the reasonable legal fees and costs incurred by Kantor in defending the criminal charges. We disagree and reverse.
The pivotal issue is whether Kantor qualifies for reimbursement of legal fees and costs under N.J.S.A. 40A:14-155, which provides:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide
said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
It is clear under this statute that the municipal employer's duty to provide "the necessary means for the defense" of criminal charges against its police officer (where such charges are not "instituted as a result of a complaint on behalf of the municipality"), does not arise in every case where criminal charges are brought against an officer. The proceedings to be defended must be one "arising out of or incidental to the performance of his duties." It is equally clear under this statute that even if the criminal proceedings are instituted by or on complaint of the municipality and determined in favor of the police officer, the police officer is not entitled to reimbursement unless the proceedings arose out of or were incidental to the performance of the ...