The nature of criminal charges filed against an acquitted police officer whose legal counsel now seeks reimbursement of his fees and expenses from the municipality is at the heart of one of the issues presented by cross-motions for summary judgment. A secondary issue concerns counsel's entitlement when neither he nor his predecessor of record agreed to the city's fee schedule in advance of entering upon their duties. The resolution of both issues invoke the provisions of the relevant statute, N.J.S.A. 40A:14-155, and a review of the decisional law which has interpreted and applied those provisions.
Plaintiff, Ronald Buonocore, while a policeman of the City of Jersey City, took office following his election as president of the Jersey City Police Officers Benevolent Association (hereinafter [192 NJSuper Page 318] the Jersey City POBA) on May 1, 1977. Thereafter, on May 1, 1981, the Grand Jury of the County of Hudson returned Indictment No. 136-80 consisting of 24 counts against Buonocore and two other defendants, Joseph Williams, a dentist, and David Solomon, an attorney at law. The counts, summary of which is set out in the margin, alleged conspiracy, bribery, uttering forged instruments, false pretenses and misconduct in office, all arising from the officer's alleged role in the administration of a prepaid dental program and of a prepaid legal services program contracted for by the Jersey City POBA.*fn1
On May 6, 1981 Buonocore filed with the City a "Request for Counsel" form by which he advised that he had "retained the law office of Samuel R. DeLuca." The Assistant Corporation Counsel, by form letter dated May 11, 1981, acknowledged receipt of the request for counsel and advised that the attorney would be in receipt of a fee schedule. That letter also advised that no payment would be made until a signed agreement was received from counsel of choice acknowledging his acceptance of the fee schedule. A letter of same date to Mr. DeLuca transmitted the fee schedule with the caveat: "The City of Jersey City shall not be liable for any services rendered prior to the agreement being executed; . . ." (Underscoring in original) At the foot of the letter there was provision for counsel's endorsement of adherence to the fee schedule. Neither Mr. DeLuca nor Mr. Querques, who was engaged as counsel by Buonocore on August 5, 1982, ever filed a signed copy of the agreement with the Corporation Counsel.
A trial concluded January 12, 1983 with entry of a judgment of acquittal of Buonocore. By letter of February 25, 1983, Mr. Querques presented his bill to the Mayor of Jersey City, requesting payment of $48,529. for legal services and disbursements. When the claim was not honored Querques and Buonocore filed this civil action.
The point of departure is the statute upon which the claim for reimbursement is based, N.J.S.A. 40A:14-155, which provides the following:
Wherever 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. [ L. 1972, c. 165]
Three opinions of our Supreme Court in recent years have interpreted and applied the provisions of the statute. The first is Van Horn v. City of Trenton, 80 N.J. 528 (1979), rev'g 159 N.J. Super. 115 (App.Div.1978). Van Horn, a Trenton police officer, sought reimbursement for expenses incurred while he was subject of a grand jury investigation based on his shooting a motorist while off-duty. The court answered the two issues submitted in the affirmative, namely that a grand jury investigation is an "action or legal proceeding," and that the officer was a "defendant." In citing the legislative history, the court quoted from the Statement Accompanying Senate Bill No. 26 (1946), and noted that the provision for defense of an accused officer was intended to "increase the morale of police departments." Such Legislative solicitude for officer morale was advanced, the court reasoned, by moderating an officer's apprehensions about the financial aspect of defending against criminal charges brought by "disgruntled 'victims' of law enforcement." Id. at 536-37.
It is of significance that the court perceived that the direction from which a challenge to police morale would emanate was from disgruntled "victims" of law enforcement. It is that residual principle of the Van Horn opinion which induced the Appellate Division to deny reimbursement in Kauffman v. Glassboro, 181 N.J. Super. 273 (1981), in which petition for certification was denied, 91 N.J. 523 (1982). Officer Kauffman, assigned to patrol a shopping center, was indicted for breaking and entering with intent and for misconduct in office. Judges Botter and Antell concluded that the indictment alleged that the
plaintiff acted as a common burglar, "not even colorably related to the performance of his ...