On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Shebell, Long and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.
Defendant, Borough of Middlesex, appeals from an order of the Law Division granting summary judgment to plaintiffs, Peter Gordon and Thomas J. Cammarata. We reverse and remand.
In August 1991, plaintiff, Peter Gordon, was indicted for: count one, official misconduct, (N.J.S.A. 2C:30-2); count two, obstructing administration of law, (N.J.S.A. 2C:29-1); and count three, wrongful access to a computer system, (N.J.S.A. 2C:20-30). In May 1992, a jury acquitted Gordon of all charges.
On September 2, 1992, Gordon and his attorney, Cammarata, filed a complaint in the Law Division against the defendant, Borough of Middlesex, for reimbursement of legal fees incurred in defending the criminal charges. Plaintiffs filed a motion for summary judgment on November 16, 1992, and the defendant cross-moved for summary judgment. On December 18, 1992, after oral argument, the Law Division Judge granted plaintiffs' motion.
The facts show that on March 12, 1991, Peter Gordon was a sergeant with the Middlesex Borough Police Department, assigned to desk duty and working the 4:00 p.m. to 12:00 midnight shift. At that time, Captain James Benson was in the process of conducting an investigation pertaining to the activities of a borough patrolman. Benson, together with a detective of the Middlesex County Prosecutor's Office, had made arrangements to interview two witnesses at police headquarters in connection with the
investigation. When Gordon arrived for work that evening, Benson informed him that he was expecting a man and a woman to come to headquarters. He asked Gordon to escort them to the Captain's office when they arrived. Benson did not indicate why he and the detective wanted to speak to these witnesses.
The man and woman arrived at approximately 5:10 p.m., reported to the desk, and were admitted by Gordon. Gordon did not ask what their names were. However, he asked another officer to check the license plate of the vehicle which was used to transport the two to police headquarters. He then accessed the New Jersey Criminal Justice Information System through a computer at his desk to identify the owner of the vehicle. Believing it was the wrong information, Gordon himself went out to the parking lot to obtain the license plate number. It is alleged that Gordon then accessed the computer to obtain the identity of the witnesses and gave the information to the patrolman who was the target of the investigation. Gordon was not assigned to aid in the investigation.
At trial, Gordon is said to have testified that he conducted the look-up as part of his official duties as desk sergeant to obtain the names of all people who come to the police station. He denied revealing the names to the patrolman under investigation. He also denied knowing that any investigation was being conducted.
Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954). Both parties in this case maintained that there was no genuine issue of fact. We disagree.
N.J.S.A. 40A:14-155 sets forth under what conditions a member of a police department is entitled to reimbursement for expenses incurred in defending against a disciplinary or criminal ...