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Flagg v. Essex County Prosecutor

February 11, 2002


On certification to the Superior Court, Appellate Division, whose opinion is reported at 336 N.J. Super. 506 (2001).

The opinion of the court was delivered by: Coleman, J.

Argued November 5, 2001

This appeal involves a municipal worker whose job was forfeited based on illegal disposition of solid waste, a disorderly persons offense under the Solid Waste Management Act (Act), N.J.S.A. 13:1E-9.4. We are called on to establish the appropriate standard for determining whether the Attorney General or a county prosecutor has properly declined to seek a waiver of forfeiture of public employment pursuant to N.J.S.A. 2C:51-2 based on a conviction for a disorderly or petty disorderly persons offense. The trial court applied a "heightened standard of review" and held that the prosecutor's decision not to seek a waiver pursuant to N.J.S.A. 2C:51-2e was an "extraordinary abuse of discretion." The Appellate Division reversed, holding that the "patent and gross abuse of discretion" standard used for pretrial intervention matters should be applied and that that standard was not satisfied in this case. We hold that because the decision whether or not to seek a waiver does not involve law enforcement policy issues, that heightened standard is not required. Rather, the appropriate standard is simply abuse of discretion applied pursuant to written guidelines to assist in decision-making.


The facts of this case are not disputed. James Flagg was a twenty-nine year employee of the Department of Sanitation of the City of Newark, and worked as a dump truck driver on the day in question. On September 5, 1996 Flagg's truck broke down. His supervisor, Norman Dorch, accompanied him to the garage where he obtained another truck. Dorch then led Flagg to 162 Miller Street, where another driver was already present. Dorch instructed Flagg to "back up" the truck so they could load it with roofing materials, pieces of wood and caulk that were on the sidewalk and curb adjacent to an abandoned building. When the truck was loaded, Dorch instructed Flagg to follow him to King Street, approximately two blocks away. Upon arrival, Dorch directed Flagg to dump the contents of the truck on the street next to another load previously dumped there. Dorch indicated to Flagg that he would assume responsibility for the dumping. After following Dorch's instructions Flagg returned the dump truck to the garage and resumed his usual duties on his regular route.

Shortly thereafter, several Newark police officers confronted Flagg, Dorch and the other driver and transported them, first to the illegal dumping site and then to the police station. During an ensuing investigation by the Newark Illegal Dumping Task Force, Flagg admitted to dumping the second pile of debris on King Street, but insisted that he was ordered to do so by Dorch as his supervisor. When asked whether he thought dumping the debris on King Street was illegal, Flagg responded "[n]ot at the time, I was just following [Dorch's] orders."

Flagg was charged under the Act with collecting, transporting, and disposing of solid waste on a public street, in violation of N.J.S.A. 13:1E-9.3a and b. Under that Act, Flagg's alleged conduct constitutes a disorderly persons offense regardless of intent. N.J.S.A. 13:1E-9.4a. Although the charges against Flagg were filed by the Newark Illegal Dumping Task Force, the trial was conducted in the Maplewood Municipal Court. On May 13, 1998 Flagg was found guilty of violating the Act based on the illegal disposition of solid waste. The statutory penalty for a first-time offender such as Flagg is a fine of not less than $2500, up to ninety days of community service, and suspension of driving privileges for between six months and one year. N.J.S.A. 13:1E-9.4b to c. Flagg was fined $5,000, his driver's license was suspended for six months, and he was required to perform five days of community service. He was again found guilty on June 11, 1999 in his de novo appeal to the Law Division and the same sanctions were reimposed. Flagg filed an appeal to the Appellate Division on July 20, 1999 that resulted in an affirmance in an unpublished opinion.

On September 6, 1996, one day after Flagg was charged as a disorderly person under the Act, the Newark Department of Sanitation filed formal disciplinary charges against him. The Department charged Flagg with conduct unbecoming a public employee and for violation of "Civil Service Law and Regulations" based on the pending alleged violation of the Act. The disciplinary charges were sustained following a hearing on September 20, 1996. Flagg's employment with the Newark Department of Sanitation was terminated on October 4, 1996 with retroactive effect to September 20, 1996. Flagg filed an appeal with the Merit System Board on October 16, 1996, and the matter was referred to the Office of Administrative Law (OAL). The OAL has postponed disposition of that appeal until after this Court's decision in this appeal.

On August 16, 1999, approximately one month after filing the appeal with the Appellate Division regarding the statutory violation, and while his employment termination appeal was pending before the Merit System Board, Flagg filed a complaint in lieu of prerogative writs, seeking to compel the Acting Essex County Prosecutor either to request a waiver of the job forfeiture mandate of N.J.S.A. 2C:51-2 or to explain his reasons for not seeking a waiver of forfeiture. At a hearing conducted in the Law Division on that complaint, Chief Assistant Prosecutor Siobhan A. Teare testified that the Prosecutor had decided not to seek a waiver of the mandatory job forfeiture provision of N.J.S.A. 2C:51-2. Teare testified that the Acting Prosecutor found the following facts relevant to his decision: (1) Flagg was convicted of a strict liability offense, and therefore the legislative intent would be undermined by exempting Flagg from job forfeiture; and (2) Flagg, as a twenty-nine year veteran of the Sanitation Department, must have realized that his supervisor's request to dispose of solid waste in the middle of the street was illegal, particularly because his supervisor told him he would take responsibility if anything happened as a result of the dumping. Teare also testified that it was not the policy of the prosecutor to seek waivers of job forfeitures.

The trial court held that the prosecutor's decision not to request a waiver of forfeiture was "an extraordinary abuse of discretion" since Flagg had an unblemished record, had worked for the City for approximately thirty years, and, because the statute under which Flagg was convicted imposes strict liability, Flagg had no criminal intent. Accordingly, the trial court exempted Flagg from the job forfeiture requirements. The prosecutor appealed and the Appellate Division reversed in a published opinion. Flagg v. Essex County Prosecutor, 336 N.J. Super. 506, 512 (2001). The panel explained that the lower court failed to apply the patent and gross abuse of discretion standard. Although it might have viewed "Flagg's situation more sympathetically than did the Prosecutor, [it could not] state that the reasons not to waive the forfeiture provision were so wide of the mark as to require [its] intervention." Ibid. We granted Flagg's petition for certification, 167 N.J. 635 (2001), and now reverse.


Flagg contends that the prosecutor's refusal to seek a waiver from the Superior Court "constituted an absolute patent and gross abuse of discretion." He argues that the Appellate Division erred by reversing the trial court's application of the factors normally used to determine patent and gross abuse of discretion in pretrial intervention cases (PTI). Flagg also asserts that he would have fared better if illegal dumping were an indictable offense, rather than a disorderly persons violation, because then the prosecutor's refusal of PTI clearly would have been a patent and gross abuse of discretion.


Flagg's disorderly persons conviction triggered the job forfeiture provision of N.J.S.A. 2C:51-2 because that conviction for improper disposition of solid waste touched upon his employment as a sanitation worker. Under that statute, "[a] person holding any . . . employment . . . under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if . . . [h]e is convicted of an offense involving or touching such . . . employment." N.J.S.A. 2C:51-2a(2). Although the statute might seem somewhat draconian, the Legislature created a "relief valve" in 1988 by adding subsection "e" to N.J.S.A. 2C:51-2, which states that "[a]ny forfeiture or disqualification . . . which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown." N.J.S.A. 2C:51-2e. The intended purpose of that subsection was to "ameliorate [the] harshness" of the forfeiture provision in practical application. Senate Judiciary Committee, Statement to Assembly Bill No. 4479, at 1 (Dec. 17, 1987). The Governor stated that, "requiring mandatory forfeiture of and permanent disqualification from public office may, under some circumstances, be too harsh a sanction for a minor infraction of our laws." Moore v. Youth Corr. Inst., 119 N.J. 256, 268 (1990) (quoting Governor Kean's Letter to the General Assembly (Jan. 11, 1988)).


First, we decide what standard should be adopted to review the Attorney General's or a county prosecutor's decision not to seek a waiver of the forfeiture and disqualification requirements. It is beyond dispute that the decision whether to seek waiver pursuant to N.J.S.A. 2C:51-2e is discretionary, and judicial review of that decision must be conducted in accordance with a state-wide standard that is uniformly applied by all twenty-one county prosecutors and by the Attorney General as well. Since this is a case of first impression, we have not yet adopted a standard. The Acting Essex County Prosecutor and the Attorney General urge the Court to adopt the "patent and gross abuse of discretion" standard used in PTI cases. In State v. Lazarchick, 314 N.J. Super. 500, 530-33 (App. Div.), certif. denied, 157 N.J. 546 (1998), the Appellate Division adopted that standard and rejected the defendant's request to establish an ordinary abuse of discretion standard. In doing so, the court reasoned that "forfeiture of office or employment is not an aspect of the sentence to be imposed for the offenses," but is instead "?a collateral consequence' of conviction." Id. at 530- 31 (quoting State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd, 107 N.J. 603 (1987)). The court acknowledged that judicial review of prosecutorial discretion in sentence-related determinations is based on a standard "characterized by a limited arbitrariness." Id. at 533. The panel concluded that the forfeiture and disqualification provisions are less clearly related to

traditional judicial powers such as sentencing, and more clearly akin to other governmental exercises involving law enforcement (executive branch) prerogatives, such as determining eligibility for pre-trial intervention . . . calling for enhanced deference to prosecutorial decision-making and judicial review based on a "patent and gross abuse of . . . discretion" standard. [Ibid. (citations omitted).]

We disapprove of the standard adopted in Lazarchick.

The forfeiture and disqualification requirements are non- penal consequences of certain convictions. N.J.S.A. 2C:51-2e fairly can be characterized as remedial, both in its purpose and implementing provisions. Although the authority to seek waiver is vested in the Attorney General and county prosecutors, we are convinced that the Legislature did not intend the discretion to seek waiver to be subject to more limited review simply because it is to be exercised by law enforcement officials. Given that the discretionary decision whether or not to seek a waiver is dissimilar to those determinations typically made by prosecutors in their law enforcement capacity, and is more akin to prosecutorial discretion in sentencing-related determinations, an abuse of discretion would be the more appropriate standard. In PTI matters, the focus is on whether there should be prosecution under an indictment, thereby implicating a wide range of considerations that influence a prosecutor's ultimate decision. State v. Wallace, 146 N.J. 576, 582 (1996). In contrast, the purpose of N.J.S.A. 2C:51-2e is to avoid the harshness of forfeiture and disqualification for a few minor offenses in which the circumstances dictate otherwise. Because that statute is remedial legislation, it should be liberally applied to achieve the legislative intent. That purpose can be achieved more effectively under an ordinary abuse of discretion standard.

Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985). In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999) (internal quotations and citation omitted). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Baynes, 148 N.J. 434, 444 (1997) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

In contrast, a "patent and gross abuse of discretion' is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that ?has gone so wide of the mark sought to be accomplished . . . that fundamental fairness and justice require judicial intervention.'" State v. Wallace, supra, 146 N.J. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985) (internal quotations and citation omitted)). Patent and gross abuse of discretion by a prosecutor, as applied to PTI, is established by showing that the prosecutor's rejection was premised upon consideration of less than all relevant factors, or that the decision was based on consideration of irrelevant or inappropriate factors that amounted to clear error in judgment thereby subverting the goals underlying pretrial intervention. State v. Caliguiri, 158 N.J. 28, 37 (1999); State v. Bender, supra, 80 N.J. at 93; State v. Hoffman, 224 N.J. Super. 149, 155 (App. Div. 1988); State v. Burger, 222 N.J. Super. 336, 341 (App. Div. 1988).

Unlike PTI matters, forfeiture of future public employment is not a typical prosecutorial decision but rather a consequence of certain convictions. Therefore, applying the heightened- deferential standard of patent and gross abuse of discretion is unnecessary and inappropriate.


Second, we consider whether the Acting Prosecutor's decision not to seek a waiver on Flagg's behalf constituted an abuse of discretion. As we noted earlier in this opinion, the trial court found there was an extraordinary abuse of discretion. In reaching that conclusion, the court observed that Flagg: (1) was convicted of a non-intent crime; (2) was following orders when he dumped the debris on King Street; (3) had never been arrested or charged with a crime; and (4) had not been disciplined in all the years that he worked for the Newark Department of Sanitation. Based on those factors, the court concluded that, even applying an enhanced standard of deference, the Acting Prosecutor's decision not to seek a waiver was an extraordinary abuse of discretion.

At the waiver hearing, however, Chief Assistant Prosecutor Teare testified that it is Acting Prosecutor Campolo's policy not to seek waiver of the job forfeiture and disqualification requirements contained in N.J.S.A. 2C:51-2 under any circumstances. That policy was implemented in the only two cases in which the Acting Prosecutor was asked to seek a waiver from the court. Flagg argues that such a per se rule of not seeking waiver ...

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