On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8510-99.
Before Judges Petrella, Newman and Wells.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 8, 2001
The Essex County Prosecutor (Prosecutor) appeals from an order exempting plaintiff James Flagg from the forfeiture of his public employment as a sanitation worker for the City of Newark for violating N.J.S.A. 13:1E-9.3(a) and (b) by illegally dumping debris, disorderly persons offenses for which Flagg was convicted. The Prosecutor declined to waive the application of N.J.S.A. 2C:51-2, which requires the forfeiture of public employment where the offense involves or touches on the employee's employment. We are satisfied that under the patent and gross abuse of discretion standard, which is the governing standard of review, that the Prosecutor's decision should not have been overturned and we now reverse.
The facts are straight forward and are not in dispute.
James Flagg (Flagg) was a twenty-nine year employee of the Department of Sanitation of the City of Newark, who worked as a dump truck driver. On September 5, 1996, Flagg began his nightly rounds, which usually lasted from 5:00 p.m. to midnight. On that evening, as had been customary for the last twelve years, Flagg worked with a crew of three, consisting of an unnamed laborer, Michael Beatty, another dump truck driver, and Lawrence Chatmon (Chatmon), a payloader, who was responsible for operating the machine that lifts large volumes of material and deposits it into a truck or other source. The Department of Sanitation assigns each crew a supervisor. On this evening, Norman Dorch (Dorch) replaced Levi Jackson, the crew's regular supervisor.
Flagg's dump truck "broke down" as he was driving to his regular route. He radioed his supervisor, Dorch, to inform him of the break down. Dorch responded and Flagg accompanied him to the Department of Sanitation garage. After obtaining another truck, Dorch told Flagg to follow him until they arrived at 162 Miller Street.
Chatmon, the driver of the payloader, was already present at the location. Dorch instructed Flagg to back up the truck so that Chatmon could load it with debris from the curb and sidewalk. When the truck was loaded, Dorch instructed Flagg to follow him to King Street, about two blocks away. Dorch directed him to dump the load on the street next to what appeared to be another load, which had been dumped there previously. Dorch said that he would assume responsibility for the dumping. Flagg did as he was told. Flagg then returned the dump truck to the garage, retrieved a sanitation truck and resumed his usual duties on his regular route.
Soon afterwards, Newark police officers confronted Flagg and brought him as well as Chatmon and Dorch to where the illegal dumping had taken place on King Street. The police then transported Flagg, Dorch, and Chatmon to the police station, where they were questioned and asked to sign a statement. Flagg's statement admits to dumping trash on King Street in compliance with his supervisor's orders.
Flagg was convicted of collecting, transporting, and disposing of garbage on a public street in violation of N.J.S.A. 13:1E-9.3(a) and (b) in the Maplewood Municipal Court. Flagg appealed to the Law Division of the Superior Court, which affirmed the conviction. This court affirmed plaintiff's conviction. State v. James Flagg, Docket No. A-6332-98T5.
On August 16, 1999, Flagg filed a complaint in lieu of prerogative writs requiring the Prosecutor to either waive the job forfeiture mandate of N.J.S.A. 2C:51-2 or explain his reasons for not waiving the job forfeiture.
The Law Division judge held a hearing on Flagg's complaint. Chief Assistant Prosecutor Siobhan A. Teare (Teare) testified that the Prosecutor decided not to waive the mandatory job forfeiture provision of N.J.S.A. 2C:51-2. Teare said that the Prosecutor found the following facts relevant to his decision: (1) Flagg was convicted of a strict liability offense; and, therefore, the Legislature's intent would be undermined by exempting Flagg from job forfeiture; and (2) the twenty-nine year veteran of the sanitation department must have realized the illegality of his supervisor's request to dispose of garbage in the middle of the street, especially, in light of the fact Flagg knew something was wrong when his boss told him he would take the responsibility if anything happened as a result of the dumping. Teare asserted that, at that time, it was not the policy of the Prosecutor to waive a forfeiture, although only two cases had been presented for consideration previously.
Noting that Flagg had an unblemished record, had performed his job with the City of Newark in excess of approximately thirty years, and that the statute under which Flagg was convicted did not require intent, the judge held that the Prosecutor's ...