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Korostynski v. State

Decided: July 29, 1993.

CHARLES E. KOROSTYNSKI, PLAINTIFF-RESPONDENT,
v.
STATE OF NEW JERSEY, DIVISION OF GAMING ENFORCEMENT, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Michels and Bilder. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[266 NJSuper Page 550] We granted the State of New Jersey, Division of Gaming Enforcement (Division) leave to appeal from an order of the Law Division that compelled it to produce all personnel files and

internal investigation records requested by plaintiff Charles E. Korostynski in this wrongful termination of employment action.

Plaintiff was initially employed as a State Trooper, but in or around August of 1981 he began to do undercover work with the Division. By June of 1982, plaintiff had commenced full-time employment with the Division as a State Investigator. Over the course of his employment with the Division, plaintiff received several commendations for the work that he had done. However, in August of 1988, an event took place which caused the Division to conduct an internal investigation of plaintiff. The Division's investigation centered on plaintiff's motivation for conducting his own investigation of a casino employee regarding that employee's alleged drug use. The issue of plaintiff's motivation for his investigation is seriously in dispute. Plaintiff maintains that he was simply performing his sworn duty to uphold the laws of New Jersey by conducting the investigation. Specifically, he asserts that he received information, during the course of his employment, which indicated that there was drug use and dealing taking place in an Atlantic City casino. Having received such information, plaintiff claims that he proceeded to conduct a preliminary interview of the suspect, Dawn Richards, during his lunch hour, for the sole purpose of obtaining sufficient information to furnish a report to the drug enforcement unit of the Division.

The Division, on the other hand, contends that plaintiff had conducted his investigation of Ms. Richards purely for personal reasons and harassment purposes. Particularly, the Division indicates that personal relationships, and not a concern for upholding the law, had motivated plaintiff's investigation. Apparently, Ms. Richards had been sharing an apartment with a man, and had been asked to move out by that man. Before she could locate other living arrangements, it is alleged that the man's mother, who had moved into the apartment that Ms. Richards had been asked to leave, had threatened Ms. Richards by telling her that she knew an agent with the Division who could jeopardize her gaming license. As it turns out, the woman who had allegedly made this

threat was then romantically involved with plaintiff, and in fact, had been dating plaintiff for seven or eight years. Shortly thereafter, plaintiff embarked on his investigation of Ms. Richards.

Following plaintiff's investigation of Ms. Richards, her casino's legal counsel filed a complaint with the Division. As a result of this complaint, the Division commenced an internal investigation of plaintiff regarding allegations that charged him with misconduct while acting in his official capacity as an agent of the Division. Plaintiff was interviewed by William J. McElroy, Chief Administrator of Operations of the Division, and, Richard E. Handzo, a Supervisor of the Casino Licensing Section of the Division. At the Conclusion of the Division's internal investigation, plaintiff was terminated from his employment.

As a result of his termination, plaintiff instituted this action against the Division. He charges that he was wrongfully terminated from his employment with the Division (1) as a result of an internal investigation which wrongfully, maliciously, and without foundation accused him of misconduct in the performance of his duties; (2) in breach of his employment agreement; and (3) in violation of public policy. During the pretrial discovery period, plaintiff was furnished with his own personnel files and internal investigation records. In addition to these materials, plaintiff also requested production of (1) the names and personnel files of each and every person who had held the position of State Investigator and who had had his or her employment with the Division cease during the period of 1985 through 1990, and (2) the complete files and records of all internal investigations of each employee of the Division who had held the position of State Investigator during that same time frame. Ultimately, the Division produced a list of the names of its relevant former employees, and a brief description of the circumstances surrounding each of their departures. However, the Division refused to produce the personnel and investigative files of these former employees. Plaintiff thereupon moved to compel production of said items. The trial court granted plaintiff's motion in this regard, but ordered that access to these

materials was to be limited "to the parties to this action, their experts and their attorneys, for use in this matter only." We granted the Division leave to appeal from this order.

The sole issue raised on this appeal is whether the trial court properly compelled the disclosure of the personnel and internal investigation records of former employees other than plaintiff. The Division argues that these materials are not discoverable because ...


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