On certification to the Superior Court, Appellate Division.
For affirmance and remandment -- Chief Justice Wilentz and Justices Pashman, Handler and O'Hern. For reversal -- Justices Clifford, Schreiber and Pollock. The judgment of the Court was delivered by Wilentz, C.J. Pashman, J., concurring. Clifford, J., dissenting. Schreiber and Pollock, JJ., join in this opinion. Pashman, J., concurring in the result.
[90 NJ Page 493] This case presents the question of whether a police officer is entitled to reimbursement from a municipality for legal expenses incurred in successfully defending himself against criminal charges. See Valerius v. Newark, 84 N.J. 591 (1980). We hold that even though the charges did not arise from the performance of his duty, but rather from his status as a police officer, the acquitted police officer is entitled to such reimbursement. We include in such "status" charges false allegations that the officer was involved in police corruption, here a burglary ring consisting of both on-duty and off-duty officers. Where the charges are the kind to which police are exposed because of their occupation -- whether because of the performance of their duties or simply because of being a police officer -- the municipality must pay for counsel. Our opinion is intended to clarify when that obligation exists, and whether it is to be satisfied by supplying municipally paid counsel in advance, regardless of the outcome of the case, or by reimbursing the officer for counsel fees after acquittal.
Plaintiffs in the case are Eude Moya, a former New Brunswick police officer, and his lawyer; defendant is the municipality.
In September 1975 the Middlesex County Prosecutor's Office initiated a confidential investigation into corruption within the New Brunswick Police Department. In December, the Department gained information implicating certain police officers in the theft of jewelry from a private residence. While being questioned, one of them gave a statement concerning additional crimes that he and other police officers had committed. In return for his statement, he was given immunity from prosecution for all crimes except the jewelry theft.
This officer stated that on September 1, 1975, he and another policeman, while on duty and in a police vehicle, acted as a lookout while Moya, who was off duty and in a civilian vehicle, and two other on-duty officers broke into a Sears store and placed television sets and other items in the trunk of Moya's car. The officer stated he received an alarm from the Sears store but did not respond until Moya had made his getaway. After making an official response to the alarm, he and two other officers canvassed the store and stole other items.
The officer also related statements made to him by another officer that the other, while on duty, and Moya, who was off duty, broke into a Great Eastern liquor store in March of 1975 and removed several large bottles of liquor. Other officers subsequently gave statements implicating Moya in various other breaking and enterings in exchange for dismissal of several charges.
On February 9 and 11, 1976, plaintiff Moya received letters from the Middlesex County Prosecutor's Office, accompanied by a Grand Jury subpoena, advising him that he was the target of investigations into alleged breaking and enterings of three New Brunswick retail establishments. The letters stated that the Grand Jury would be "inquiring into matters directly related to
the conduct of [his] office and touching upon the discharge of [his] duties as a police officer . . . ." The letters also advised Moya that it was his duty under the Public Immunity Act, N.J.S.A. 2A:81-17.2a1, "as a public employee, to appear and testify upon matters directly related to the conduct of [his] office, position or employment as a New Brunswick police officer . . . ." Moya was further advised that failure to testify would subject him to removal from office.
Plaintiff Moya then consulted his present attorney, Mr. Benedict, regarding representation. Benedict, aware that Moya was without funds, advised Moya that he would represent him if the City of New Brunswick agreed to pay his fee pursuant to N.J.S.A. 40A:14-155. That statute provides the following:
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.
Benedict wrote the City Attorney asking whether New Brunswick would pay the legal fees and expenses connected with Moya's defense. The City Attorney replied on March 1, 1976, that the City Council had determined it was not obligated to pay for such legal fees and expenses because the conduct with which Moya was charged was outside the scope of his employment as a police officer. The letter also stated that Moya would be reimbursed for the expense of his defense only if the outcome of the criminal proceeding was determined in his favor. Upon receipt of the letter, Benedict agreed to represent Moya.
Moya was subsequently indicted by the Grand Jury and charged in three separate indictments with breaking and entering with intent to steal in violation of N.J.S.A. 2A:94-1, larceny of goods in excess of $500 in violation of N.J.S.A. 2A:119-2 and misconduct in office in violation of N.J.S.A. 2A:85-1. The
statements previously given by the other officers and their testimony before the Grand Jury served as the basis for the indictments. The indictments charged that Moya, while "acting under color of [his] office," provided assistance to breaking and enterings by other officers "in police uniforms, in police vehicles and while performing the duties for which [their] office was created."
During Moya's trial under two of the indictments, the officers, in accordance with their plea bargain arrangement, testified as to Moya's involvement in the alleged breaking and enterings. Their testimony was the only evidence offered against Moya. A jury found Moya not guilty of the first two charges. The third indictment was subsequently dismissed upon motion of the prosecutor, presumably because it was based on the charges of which Moya had been acquitted.
Following his acquittal, Moya requested reimbursement from the City for his legal fees. When the City refused, plaintiffs instituted this action. They claimed they were entitled to reimbursement under N.J.S.A. 40A:14-155, as the criminal charges arose out of or were incidental to Moya's duties as a police officer. They also claimed entitlement under the latter part of the statute, which requires reimbursement by the city where it initiates the charges and the proceedings are determined in favor of the accused. Finally, plaintiffs claimed defendant was estopped from denying liability based on the City Attorney's letter stating that Moya would be reimbursed if he were cleared of all charges.
The trial court held that plaintiffs were not entitled to reimbursement for legal fees and expenses under any of the above theories. The court, relying on the then recent case of Valerius v. Newark, 168 N.J. Super. 529 (App.Div.1979), later reversed, 84 N.J. 591 (1980), concluded that the criminal acts which Moya was charged with did not "by any stretch of the imagination" arise out of nor were they incidental to the performance of Moya's duties as a police officer. The court also held that liability could
not be based on the latter portion of the statute since the City of New Brunswick was not responsible for instituting the charges against Moya. Finally, the court held that the City Attorney's letter was not sufficient to bind the City and that Moya's attorney's reliance on it was not reasonable in view of the failure of the City Council to pass a resolution approving the payment. Plaintiffs appealed.
While plaintiffs' appeal was pending, we reversed the decision in Valerius. 84 N.J. at 591. Our construction there of N.J.S.A. 40A:14-155 led the Appellate Division in this case to reverse the trial court's denial of legal fees and costs. We now affirm the Appellate Division's judgment and remand to the trial court for a determination of the reasonable value of the services rendered by plaintiff Moya's attorney.
We agree with the Appellate Division that Valerius is dispositive of this matter. Our extended discussion of the statute and its interpretation is not required by any lack of analogy between the facts here and in Valerius, for it is quite strong. Rather, it arises from our desire to provide further guidance for those who must deal with this problem.
In Valerius, a police officer was charged with conspiring with another officer and two civilians to set up a scam in which the sale of drugs by the civilians would be interrupted by the two police just as the buyer-victim was handing the money over. Valerius and the other police officer would appear to make an arrest, confiscate the money, as well as the illegal drugs, all purportedly for the purpose of gathering up evidence to be turned over to the municipality. Neither the drugs nor the funds were turned over but were kept by the co-conspirators. After trial, at which Valerius testified, he was acquitted of all charges. We concluded that while the charges did not arise from the performance of Valerius's duties (we assumed that the jury verdict conclusively established that the incident had never
occurred since that was Valerius's defense), the charges never would have been made but for the fact that Valerius was a police officer. Since it was his status as a police officer that led to the charge, we concluded that he should be reimbursed for his counsel fees since it would be grossly unfair to do otherwise.
We recognized that our holding flew in the face of a statutory requirement that seemed to require provision of counsel at the outset of the case if at all.*fn1 We held that it was the kind of a case where the officer was entitled to counsel only if he was found innocent and that, obviously, the only remedy to effectuate such a rule would be reimbursement after the trial.
Here Moya was similarly acquitted. The record before us does not reveal the nature of Moya's defense. The charges against him, which we also conclusively assume were false, were presumably made primarily because he was a police officer. At the very least, it is fair to conclude his status was a substantial factor. Police corruption was being investigated, the misconduct of police was charged, all of the participants in the scheme of burglary were police, and many were in uniform and on duty at the time the burglaries were committed. The asserted conspiracy contemplated that the on-duty police officers would not respond to alarms triggered when other police officers, some of whom were also on duty, engaged in the burglaries. The only difference with the situation in Valerius is that Moya was not
accused of wearing his uniform while he was participating in these alleged misdeeds.*fn2 Even without further analysis, reimbursement here seems required by the result in Valerius.*fn3
We believe our apparent departure in Valerius from the literal terms of the governing statute requires further explanation to assure its proper application in the future. We noted that departure in Valerius. We noted further that the benefits of the statute would attach if the charges arose from the defendant's status as a police officer, as distinguished from charges arising out of the performance of police duties (although
our language suggested equating the two, see 84 N.J. at 596-97). Our reasoning was that the jury's verdict established that Valerius had not "engaged in conduct that constituted a perversion and prostitution of his duties," id. at 596, and therefore under the circumstances the charges "involved his status as a police officer."*fn4 Id. We concluded that "it would be the height of unfairness to hold that [he] must pay the legal expenses incurred in defending against [such] charges." Id. at 598.
We now have before us another slightly variant case which we believe calls for a fuller exposition of the underlying principles than was given in Valerius.
We conclude -- as we did in Valerius -- that the intended legislative coverage goes beyond a literal reading of the statute. The Legislature intended through this statute to "increase the morale of police departments," Statement, Sen. Bill 26 (1946), and to encourage the effective pursuit of police duties, Van Horn v. City of Trenton, 80 N.J. 528, 536-37 (1979), by providing counsel to police officers who are the subject of charges. The statute, however, will fall short of its goal if its effect is confined to the provision of counsel only where the charges arise from the performance of the officer's duties. Police performance and morale are damaged whenever an officer is required to pay counsel to respond to unfair charges because he is an officer, and unfair charges arise not only from performance of duties. They are sometimes made, and often without foundation, against someone, not because he or she did anything at all, but
solely and primarily because of his or her identity or status as a ...