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DeLisa v. County of Bergen

July 25, 2000

PETER DELISA, PLAINTIFF-APPELLANT,
V.
COUNTY OF BERGEN, DEFENDANT AND THIRD PARTY PLAINTIFF- RESPONDENT,
AND
OFFICE OF THE PROSECUTOR, CHARLES BUCKLEY, ACTING PROSECUTOR FOR BERGEN COUNTY; JAMES TOBIN; RICHARD MUTI; FRANK CILENTO AND ALAN GRIECO, DEFENDANTS-RESPONDENTS,
AND
STATE OF NEW JERSEY, THIRD PARTY DEFENDANT-RESPONDENT



The opinion of the court was delivered by: Per Curiam

Argued May 2, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 326 N.J. Super. 32 (1999).

In Higgins v. Pascack Valley Hospital, 158 N.J. 404, 408 (1999), the critical issue was "whether the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, prohibits an employer from retaliating against an employee who `blows the whistle' on a co-employee." We held that "[a]s long as a reasonable basis exists for a complaint about misconduct, whether of the employer or of a co-employee, the complaining employee should not be exposed to retaliation by the employer." Higgins, supra, 158 N.J. at 425.

In this matter the complaining employee did not complain to his employer, the Bergen County Prosecutor (Prosecutor), about the misconduct of co-employees. Rather, plaintiff alleges, and the allegation is undisputed, that he was directed by his employer to meet with investigators from the Prosecutor's office and the Attorney General's office to answer questions and provide testimony that supported criminal charges previously filed by the Prosecutor's office against two co-employees of the Prosecutor's office, Ed Denning and Michael Carlino. Plaintiff alleges that he was retaliated against and discharged by his employer as a direct result of the testimony that he provided concerning Denning and Carlino.

The legal issue is whether, pursuant to our decision in Higgins, plaintiff has asserted a sustainable cause of action under CEPA notwithstanding that his negative characterization of his co-employees' conduct occurred in the course of testimony to representatives of the Prosecutor's and Attorney General's offices. The Appellate Division, in a reported opinion, DeLisa v. County of Bergen, 326 N.J. Super. 32 (1999), affirmed the Law Division's grant of summary judgment dismissing the complaint, holding that plaintiff had not alleged a cause of action under CEPA because his testimony did not involve misconduct by his employer as is literally required by N.J.S.A. 34:19-3b, the subsection of CEPA that deals with testimony before public investigatory bodies. DeLisa, supra, 326 N.J. Super. at 39.

We now reverse the judgment of the Appellate Division and remand the matter to the Law Division for further proceedings.

I.

The facts material to the issue before us may briefly be summarized. In 1991 plaintiff was hired as an investigator in the Bergen County Prosecutor's office by then Prosecutor John J. Fahy.

In August 1994 Deputy Chief of Investigators Ed Denning and Lieutenant of Investigators Michael Carlino were charged by the Bergen County Prosecutor with theft by deception (N.J.S.A. 2C:20-4c) and official misconduct (N.J.S.A. 2C:30-2). The allegations supporting those charges were that Denning and Carlino used their official positions to exercise individually the right to purchase three vehicles leased to the Bergen County Narcotics Task Force (BCNTF or Task Force). Pursuant to the lease agreement, the Task Force held the option to purchase the vehicles at the end of the lease term.

At Prosecutor Fahy's request, the State Division of Criminal Justice superceded the Prosecutor in the conduct of the ensuing investigation. In August 1994 plaintiff was ordered by one of his superiors to meet with and provide testimony to investigators from the Prosecutor's and Attorney General's office concerning the charges against Denning and Carlino. Plaintiff alleges that his testimony supported those charges and indicated that Denning attempted to influence the award of the bid for new leased vehicles in an effort to facilitate his plan to purchase a vehicle for his daughter covered by the expiring lease agreement. Subsequently, the Division of Criminal Justice declined to prosecute Denning and Carlino, but informed prosecutor Fahy that the evidence might provide grounds for administrative action. Fahy disagreed with that conclusion, emphasizing that plaintiff's testimony provided a basis for a criminal prosecution. Nevertheless, no prosecution ensued and Fahy filed administrative charges against both Denning and Carlino.

After Fahy resigned as prosecutor in March 1995, defendant Charles Buckley became the Acting Prosecutor. In the interim, Denning had resigned and the administrative charges against him were dismissed. The administrative proceeding against Carlino was resolved on March 9, 1995 when he pled guilty to a charge of Neglect of Duty. Buckley reinstated Carlino to duty effective December 6, 1994, fined him approximately $16,500 representing lost pay from August 5 to December 5, 1994, and then awarded him back pay for the period between December 5, 1994 and the date of Carlino's plea.

Denning and Carlino later filed a civil action against Bergen County that was settled by the payment of $125,000 to each of them.

Plaintiff alleges that defendants engaged in a series of retaliatory actions against him commencing in May 1995 and continuing until his discharge in March 1996, and that those retaliatory acts and his ultimate discharge were causally connected to his participation as a witness in the investigation of the charges against Denning and Carlino.

Defendants allege that plaintiff was discharged for good cause arising out of events completely unrelated to plaintiff's participation in the Denning and Carlino investigation. Defendants support the discharge primarily on the basis of plaintiff's allegedly false testimony in a criminal trial about the circumstances of his resignation from a prior position with the Broward County (Florida) Sheriff's Office that arguably prejudiced the presentation of the prosecution's case. In addition, defendants point to plaintiff's strained relationship with two local police departments, his imprudent conduct in revealing his status as an ...


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