(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This is an attorney disciplinary matter.
Respondent, James A. Breslin, Jr., of Lyndhurst, was admitted to the bar in New Jersey in 1968. He served as a judge of the Lyndhurst Municipal Court from 1978 until January 14, 2002, when he tendered, and the Supreme Court accepted, his resignation from that office. That resignation followed a Presentment filed by the Advisory Committee on Judicial Conduct (ACJC) recommending that the Supreme Court institute proceedings to remove respondent from his judicial office. Pursuant to that Presentment, the Supreme Court convened a three-judge panel, which ultimately recommended respondent's removal from office.
The ACJC's findings and the Panel's findings had been based on respondent's treatment of a bribe attempt. Although different factual versions of the attempt were offered by various witnesses, the record indicated essentially that sometime in mid to late October 1996, respondent's former client, Joseph Ciardella of Toms River, visited respondent at his Lyndhurst office and delivered to him a manilla envelope. According to respondent, Ciardella told him that the envelope contained his son's resume and/or application to the Police Department, which he asked respondent to give to the Lyndhurst Police Commissioner, Paul Haggerty. On ultimate inspection of the envelope, which according to respondent occurred several days later, respondent discovered not only the resume but also two bank envelopes together containing $10,000. The timing and nature of respondent's actions thereafter also formed the basis of the various charges filed against him.
Specifically, on discovery of the envelopes, which respondent believed contained money, respondent did not immediately communicate with any law enforcement authorities. Rather, when he next met Haggerty, whom he saw on a regular and frequent basis, he posed to him a hypothetical question, essentially asking what he would do if someone gave him money and asked for a favor. Respondent did not at that time become any more specific and did not identify Ciardella as the person seeking the favor. According to respondent, Haggerty reacted angrily to the suggestion and told respondent that he did not wish to discuss it any further. Respondent dropped the subject, not wishing to involve Haggerty any further.
Shortly thereafter, when respondent next spoke or met with Haggerty, the conversation was resumed, this time respondent disclosing some details to Haggerty about the identity of the client and the contents of the envelope. During the course of the conversation, it was decided that the bribe attempt should be communicated to the acting police chief, James Tobin, who had been temporarily assigned to that position by the Attorney General, there having been a dispute between Haggerty and the outgoing police chief as to whom should be appointed to the position on a permanent basis. Although the timing is in dispute, the matter ultimately was reported by Haggerty to Tobin, who in turn informed the Bergen County Prosecutor's Office. Ultimately, the matter was investigated by the Prosecutor's office with respondent's cooperation and Ciardella was convicted of the third degree offense of gift to a public official, in violation of N.J.S.A. 2C:27-6b.
As noted, this matter was originated as a Presentment filed by the ACJC recommending that the Supreme Court institute proceeding to remove respondent from his judicial office. The ACJC's recommendation was based on its finding that respondent had failed to report a bribe attempt to law enforcement authorities, in violation of Canons 1 and 2A of the Code of Judicial Conduct. The ACJC further found that respondent's conduct was prejudicial to the administration of justice, contrary to Rule 2:15-8.
Pursuant to the ACJC's Presentment, the Supreme Court convened a three-judge panel that conducted two days of evidentiary hearings, and also received in evidence essentially the same exhibits that had been offered in the ACJC proceeding. The Panel found beyond a reasonable doubt that respondent's failure to promptly report the bribe attempt to law enforcement officials violated Canons 1 and 2A of the Code of Judicial Conduct as well as Rule 2:15-8(a)(6) (conduct prejudicial to the administration of justice that brings the judicial office into disrepute). The Panel made additional findings that the manner in which respondent reported the bribe attempt to Paul Hagerty, his close personal friend of thirty
years and the Lyndhurst Police Commissioner, also violated those same Canons. The Panel recommended respondent's removal from office. Respondent subsequently tendered his resignation, which the Court accepted by Order dated January 14, 2002.
Based on the Supreme Court's Order, the Office of Attorney Ethics (OAE) filed with the Disciplinary Review Board (DRB), a motion for reciprocal discipline pursuant to Rule 1:20-14, seeking respondent's disbarrment on the basis of alleged violations of various Rules of Professional Conduct (RPCs), including RPC 1.2 (d) (counseling or assisting a client in conduct the lawyer knows is illegal, criminal, or fraudulent...); RPC 4.1 (a)(2) (knowingly failing to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client); and RPC 8.4(c),(d), and (e) (conduct involving dishonesty, fraud, deceit, or misrepresentation; conduct prejudicial to the administration of justice; and stating or implying an ability to influence improperly a government agency or official). Those alleged violations had not been the subject of either the ACJC's or the three-judge Panel's determinations.
A majority of the DRB concluded that respondent's conduct violated RPC 8.4(c) and (d), but did not specify that aspect of his conduct on which it relied to establish those violations. Four members of the DRB recommended that respondent be disbarred for his violations of RPC 8.4(c) and (d). Three members recommended that he be suspended for three years, and one dissenting member did not believe that the record clearly and convincingly established violations of RPC 8.4(c) and (d). Rather, that member believed that the record established only that respondent violated RPC 1.2(c) by failing to advise his client on the limitations on his conduct for which he believed respondent should reprimanded.
The matter is before the Supreme Court pursuant to R. 1:20-16(a).
HELD: The record in this attorney disciplinary case does not clearly and convincingly establish that James A. Breslin, Jr. participated in a bribery scheme, and thus the Disciplinary Review Board's recommendation that he be disbarred for his violations of RPC 8.4(c) and (d) based on that alleged participation must be rejected; Breslin's conduct however violated RPC 1.2(e), for which he is censured.
1. Notwithstanding that the Rules of Court provide for reciprocal discipline of attorneys based on judicial discipline and state that the judicial discipline proceedings shall be conclusive on the conduct on which the discipline was based in any subsequent disciplinary proceeding, fairness to respondent compels the Court to focus on the evidence in the record, and not on the findings of the three-judge panel, as those findings were based on violations of the Code of Judicial Conduct and not on the RPC violations on which the DRB based its recommendation for disbarrment. (p. 7)
2. The significant difference in the specific quality of the conduct required to sustain the RPC violations, as compared with the more generalized standard implicated by the Canons and the related Rules, require the Court to conduct a de novo reexamination of the underlying record, as it does in other attorney disciplinary matters in which the initial hearing is held before a district ethics committee. (pp. 7-8)
3. The three-judge panel focused on the more general language of the Canons of the Code of Judicial Conduct that implicate the public confidence in the judiciary, and not on whether clear and convincing evidence supported a finding of respondent's complicity in the bribery. (pp. 60-61)
4. No evidence in the record directly supports the Panel's finding (on which the DRB apparently relied) that respondent was sounding out Haggerty's willingness to accept a bribe, although that might be one inference. The record cannot fairly be read to provide clear and convincing evidence that respondent indeed was "testing the waters" to determine if his friend was interested in a bribe. (pp. 61-63)
5. Respondent's participation in a bribery scheme was not established by clear and convincing evidence and the DRB's disbarrment recommendation based on its determination that respondent violated RPC 8.4(c) and (d) must be rejected. (pp. 63-66)
6. Although most lawyers, in circumstances similar to those of respondent, would be expected immediately to convey the relevant information to the County Prosecutor's office, RPC 1.6 did not impose on respondent, as a lawyer, a duty to report Ciardella's bribery attempt to the proper authorities. (pp. 66-67)
7. The record establishes by clear and convincing evidence that respondent violated RPC 1.2(e), which required him to advise his client, who expected assistance not permitted by the Rules, of the limitations on respondent's conduct. (p. 68)
8. The most serious violations established by the record by clear and convincing evidence are those found by the three- judge hearing panel, involving violations of Canons 1 and 2A of the Code of Judicial Conduct and R. 2:15-8(6) that describes conduct prejudicial to the administration of justice that brings the judicial office into disrepute, for which respondent has been compelled to resign his judicial office. The remaining violation of RPC 1.2 (e) warrants discipline less severe than a suspension. Thus, respondent is censured for that violation. (pp. 68-69)
Respondent is CENSURED for his violation of RPC 1.2(e).
JUSTICE LaVECCHIA has filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join. Justice LaVecchia believed that the majority's view of the facts placed too much of a strain on credibility and that its disposition would jeopardize the public's trust in the integrity of the members of the legal profession, emphasizing specifically the three-judge panel's finding, beyond a reasonable doubt, that respondent acted in a manner prejudicial to the administration of justice, and that that conduct brought his judicial office into disrepute.
JUSTICES LONG and VERNIERO, and JUDGE KING, temporarily assigned, join in JUSTICE STEIN's opinion. JUSTICE LaVECCHIA has filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join.
The opinion of the court was delivered by: Stein, J.
Argued September 24, 2001 -- Reargued February 25, 2002
On an Order to show cause why respondent should not be disbarred or otherwise disciplined.
For a lawyer, a judgment of disbarrment is the ultimate professional sanction. Because in New Jersey disbarrment invariably is permanent, a disbarred lawyer cannot ever again expect to practice his chosen profession. The enormity of that consequence has caused the members of this Court to treat disbarrment matters with exceptional care and meticulous scrutiny.
The members of the Disciplinary Review Board (DRB) were evenly divided on the question of discipline. Four members of the DRB recommended that Respondent be disbarred. Three members recommended a three-year suspension and one member recommended a reprimand. In our view, however, the four-member DRB disbarrment recommendation relies too literally on Rule 1:20-14(c) which states, in effect, that a judicial disciplinary proceeding conclusively establishes the conduct on which discipline was based for purposes of any subsequent attorney disciplinary proceeding. In this matter, however, the difference in the standards governing judicial discipline from those governing attorney discipline requires the Court to go beyond the findings of the three-judge Panel that recommended Respondent's removal from the bench and focus comprehensively on the actual evidentiary record.
Respondent, James A. Breslin, Jr., a member of this State's bar since 1968 and the judge of the Lyndhurst Municipal Court since 1978, had an unblemished ethics record prior to these proceedings. The matter before us originated as a Presentment filed by this Court's Advisory Committee on Judicial Conduct (ACJC), after a hearing, in which the ACJC by a 6-3 vote recommended that this Court institute proceedings to remove Respondent from his judicial office. The ACJC majority found by clear and convincing evidence that Respondent's failure to report a bribe attempt to law enforcement authorities violated Canons 1 and 2A of the Code of Judicial Conduct. Canon 1 provides:
1. A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Canon 2 entitled "A Judge Should Avoid Impropriety and The Appearance of Impropriety in all Activities" provides in part:
A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
The ACJC also found by clear and convincing evidence that Respondent's conduct was prejudicial to the administration of justice, contrary to Rule 2:15-8(a)(6), which provides:
2:15-8. Initial Review By Committee
(a) The Committee shall review any written statement, criticism or grievance that is directed to the Committee and that contains allegations to the effect that a judge of the Superior Court, Surrogate's Court, Tax Court or Municipal Court is guilty of:
(6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
One member of the ACJC agreed with the Committee's findings but recommended a sanction short of removal. Two members, one a retired Associate Justice of this Court and the other a present member of the Court not participating in this appeal, agreed that Respondent's failure to report the bribe violated Canons 1 and 2A, but disagreed with the Committee's finding that Respondent's own testimony "comes very close to constituting clear and convincing evidence of participation in bribery." Those members recommended censure rather than removal.
In response to the ACJC's Presentment, this Court convened a three-judge Panel that conducted two days of evidentiary hearings, and also received in evidence essentially the same exhibits that had been offered in the ACJC proceeding. The Panel found beyond a reasonable doubt that Respondent's failure to promptly report the bribe attempt to law enforcement officials violated Canons 1 and 2A of the Code of Judicial Conduct as well as Rule 2:15-8(a)(6) (describing conduct prejudicial to the administration of justice). The Panel made additional findings to the effect that the manner in which Respondent reported the bribe attempt to Paul Haggerty, his close friend of twenty-five to thirty years and the Lyndhurst Police Commissioner, also violated Canons 1 and 2A of the Code of Judicial Conduct. The Panel recommended Respondent's removal from office. He subsequently tendered his resignation, which this Court accepted by order dated January 14, 2000.
Based on the Court's order, the Office of Attorney Ethics (OAE) petitioned the Disciplinary Review Board for discipline of Respondent as an attorney, seeking Respondent's disbarrment on the basis of alleged violations of various Rules of Professional Conduct (RPC). None of the alleged RPC violations had been the subject of either the ACJC's or the three-judge Panel's determinations. The alleged RPC violations were the following:
RPC 1.2 SCOPE OF REPRESENTATION
(d) A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client of the relevant limitations on the lawyer's conduct.
RPC 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
(a) In representing a client a lawyer shall not knowingly:
(2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official[.]
A majority of the DRB concluded that Respondent's conduct violated RPC 8.4(c) and (d), although the DRB decision did not specify that aspect of Respondent's conduct on which it relied to establish the RPC violations. As noted, four members of the DRB recommended disbarrment; three members recommended a three-year suspension; and one member recommended a reprimand.
Notwithstanding that our Rules of Court provide for reciprocal discipline of attorneys based on judicial discipline, R. 1:20-14(c), and state that the "[judicial discipline] proceedings shall be conclusive of the conduct on which the discipline was based in any subsequent disciplinary proceeding," fairness to Respondent compels us to focus on the evidence in the record, not on the findings of the three-judge Panel. That Panel's findings were based on violations of the Code of Judicial Conduct (Canons 1 and 2A), and on Rule 2:15- 8(a)(6) (describing conduct prejudicial to administration of justice that brings judicial office in disrepute), not on the RPC violations on which the DRB based its recommendation for disbarrment.
We note that the standards governing judicial behavior, on which the three-judge Panel relied to sustain its findings, are generalized principles that attempt to define appropriate judicial conduct. Cf. Canon 2 ("A judge . . . should act . . . in a manner that promotes public confidence in the integrity and impartiality of the judiciary.") Although the Panel applied a "reasonable doubt" standard of proof, the generalized criteria that controlled its determination did not require precise and specific findings of fact. In comparison, the finding by the DRB majority that Respondent "engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation" is a more precise and specific determination than that reached by the Panel. The significant difference in the specific quality of the conduct required to sustain the RPC violations, as compared with the more generalized standard implicated by the Canons and the related Rules, require this Court to conduct a painstaking de novo reexamination of the underlying record, just as it does in other attorney disciplinary matters in which the initial hearing is held before a District Ethics Committee.
A. Testimony of Respondent
In addition to Respondent's live testimony before the three- judge Panel, two exhibits were admitted, one containing a summary of an interview of Respondent, and the other containing a verbatim transcript of Respondent's testimony at a deposition conducted by ACJC staff members.
1. Exhibit C-1 in evidence before the hearing panel was Investigator Randazzise's report of her interview of Respondent on December 26, 1996. The material portion of that report read as follows:
Mr. Breslin stated that in the latter half of October 1996, Joseph Ciardella of Toms River, New Jersey, a former legal client, came to his law office located at 296 Ridge Road, Lyndhurst, N.J. (201-939-8760). At that time he gave him a manila envelope. Mr. Ciardella told him that the envelope contained his son's resume for the Lyndhurst Police Department. Mr. Breslin stated that Mr. Ciardella asked him to give the resume to the Lyndhurst Police Commissioner, Paul Haggerty. Mr. Breslin stated that Mr. Ciardella had stopped in at his office around lunchtime, without an appointment. Mr. Breslin stated that he was on his way to court in Hackensack, so he took the envelope, put it either on his desk or next to his desk and left for court. He stated that when he returned to his office, he looked in the envelope, found the resume, and two bank envelopes that contained money. Mr. Breslin stated that neither the large manila envelope nor the two bank envelopes had been sealed. He stated that he went to Paul Haggerty to speak to him about this matter. Mr. Breslin stated that Mr. Haggerty's reaction to his matter was that, given the current political climate in Lyndhurst, someone was out to get him. Mr. Breslin stated that Mr. Haggerty did not want the manila envelope and stated that he was going to the Prosecutor's Office. Mr. Breslin retained the manila envelope, resume and the two bank envelopes containing $10,000 in U.S. Currency. He stated that during the time that he was in possession of these items he left them in his desk in his locked office.
Sgt. Randazzise's summary also indicated that Respondent had twice performed legal services for Joseph Ciardella, once in the 1970's when Ciardella hired him to change his name from Joseph DuBois to Joseph Ciardella. The second matter occurred in about 1994 when Respondent was retained by Ciardella in a will contest proceeding. Respondent stated that that matter had been successfully resolved about a year prior to the incident in question.
Respondent also informed Sgt. Randazzise that prior to Ciardella's unannounced visit, Ciardella had telephoned Breslin asking if there were vacancies in the Lyndhurst Police Department. Respondent stated that he informed Ciardella that no new hiring was occurring at that time.
2. Exhibit C-10 is a transcript of a deposition of Respondent taken by Patrick J. Monahan, Jr. and John Tonelli on behalf of the ACJC.
The following excerpts from that deposition have a direct bearing on the matter before the Court:
Q: As the Committee understands it Mr. Ciardella came to your office some time in October of 1997, is that when it occurred?
Q: Okay. Is there any way you can reconstruct the exact date?
Q: -- '97, my mind -- I'm -- sorry. Is there any way you can construct if not the exact date, the time of the month that he visited you?
A: No, not really. Maybe the middle of the month.
Q: Okay. Did you know he was coming?
Q: Had you had any conversations with him, since your last representation of him?
Q: Did you socialize with him?
Q: Now, the Committee understands that you represented or handled matters for Mr. Ciardella on a couple of occasions, correct?
Q. One in the sixties, and one more recent one an estate matter, is that right?
Q: Now. What conversations did you have with Mr. Ciardella after you handled the second matter?
A: He would call me on the phone, and he was originally from Lyndhurst. And he moved to Toms River. He'd keep up I guess on the local goings on in Lyndhurst, call me up, what's going on. I guess -- it seemed to me he was getting a local paper, the Lyndhurst paper down in Toms River, and just call me about what's going on in town.
Q: So it was not a business conversation?
Q: Did he at any time indicate to you that he wanted to get his son a job with the municipality?
Q: And when did he make that indication?
A: In terms of time, I really couldn't tell you.
Q: Can you say whether it was a year before he visited you, or longer?
A: No. Three, four months maybe.
Q: Did he ask you to help him get his son a job with the municipality?
A: He -- he wanted to know how -- how to go about having his son apply to become a police officer.
Q: And what did you tell him?
A: That you had to go to the Town Hall and see the Chief of Police, who had applications.
Q: What was his response to that?
A: Okay. And he -- I gave him the information and then that was the end of it.
Q: Did he say what particular types of jobs he wanted for his son?
A: Open ended in what fashion?
Q: That is to say Mr. Ciardella didn't tell you that he wanted a specific type of municipal job for his son?
A: Yes. He told me he says, his son wanted to become a police officer.
Q: And that was the only thing then?
Q: Was it mentioned in terms of a job with the town?
Q: Okay. Now the day he visited you, you had no idea he was coming?
Q: What time of day did he come to your office?
A: It's around -- I'm almost positive it was around lunchtime, 12 O'clock, 12:15 something like that.
Q: What makes you positive?
A. Because I was on my way out, I'm almost sure I had Court on that Thursday. And I was late, and I was like rushing out the door and he was coming in.
Q: When you say you had Court, you mean to sit?
Q: And what happened when he arrived?
A: I said to him, "you know, what do you want I says, I'm late, I've got to go." And he says, "Here give this to the Commissioner." And he gave me an envelope.
Q: At what time did you open it?
A: Two days later, three days later.
Q: But going back to when he visited your office, what was said next after he gave you the envelope?
A: Nothing. Nothing. It was like I left.
Q: He walks into your office, says here's an envelope for the Commissioner, didn't identify the Commissioner?
Q: You say, "I'm going" and you leave, that's it?
A: That was it. Like seconds.
Q: Where did you put the envelope when he handed it to you?
Q: Did he tell you what was in it?
Q: When did you next see the envelope?
A: Well -- I know it was a weekend, it was like a couple of days later, Saturday or Sunday.
Q: Now how did you come to see the envelope? On the weekend?
A: I -- well I'm normally there on the weekend, but -- I picked up the envelope to look at the resume. I read the resume.
Q: Did you see anything else in the envelope?
A: Not when I pulled the resume out. When I tried to put it back in, I couldn't get it back in.
Q: Why couldn't you get it back in?
A: As it turned out there were two bank envelopes with money in it, sitting at the bottom of the envelope.
Q: What was your reaction?
Q: What if anything did you do when you saw the envelopes?
A: Pulled them out of the -- the manila envelope, and looked in them.
Q: So we're talking about a nine by 12 manila envelope, containing --
Q: -- a resume and two bank envelopes?
Q: Did you tell anyone that you found them at that time? Did you call Ciardella?
Q: Did you call the Commissioner?
Q: When did you tell the Commissioner what you found?
A: Monday. I believe it was Monday or Tuesday.
Q: On that Thursday, which you think it probably was, after you got the envelopes, you went to Court did you see the Commissioner that day?
Q: When we talk about the Commissioner who are we talking about?
A: At that time it was Commissioner Haggerty.
Q: Did you see him that Friday, the day after you got the envelope?
A: I don't think so. Could be.
Q: If you did see him, did you mention?
A: I believe the first time I saw him after I got the envelope and realized what was in it, I told him.
Q: But you didn't realize what was in it until Saturday?
A: Right. And like I said I don't think I --
Q: Let's go to Monday then, which is the day you think you told Haggerty what you'd gotten. Where did you have this communication with Haggerty?
A: Restaurant in Lyndhurst.
Q: What's the name of the restaurant?
Q: You know how to spell that?
A: L-a-c-i-b-e-l-e-s, I think.
Q: And was that a planned meeting with him?
Q: Did you regularly meet him at Lacibeles?
A: Probably three times a week. Either one of us would run into each other.
Q: It was your habit to go to Lacibeles?
A: Yeah, he lives a block away from there, I guess.
Q: Did you have dinner with him there?
Q. Yeah, on that night? Okay. So exactly what happened from the time you arrived at Lacibeles Restaurant?
A: You know, I -- at that point I'm saying to myself he's not really involved other than they said to give it to the Commissioner. I have the money, and I just kind of gave him a hypothetical what would you do if, you know, you were in this position. And he must have picked up right away, as to what I was trying to tell him, because he said, don't tell me, I don't want to know nothing about it. Because nothing happened to me in effect. And I'm the guy that's involved. And that was the end of the conversation that night.
Q: Now, let's just stick with that night for just a minute please. Was he there when you got there?
Q: Where were you sitting with him, when you had this conversation?
Q: Oh, so you occasionally run into him at the bar there?
Q: Was this part of a group?
Q: There were others in the group?
A: Any given night, I don't know, eight, 10 guys, same guys.
Q: Was this a planned kind of event?
Q: Was there anybody there who overheard you talking to Haggerty when you told him about it?
Q: Can you try and reconstruct exactly what you said to Haggerty, when you broached the subject?
A: I -- like I said, I turned it into a hypothetical, what would you do if somebody gave you some money and asked for a favor, basically.
Q: When you were telling him that, were you more specific? By that I mean did you tell him what would you do if somebody gave you money and asked for a favor about getting somebody a job on the police force?
Q: So he didn't know what you were talking about?
Q: And yet he said, "doesn't involve me."
Q: Did you continue with the subject?
A: No, dropped it right there.
Q: Okay. What -- what's the next event in this sequence?
A: I'm not sure if he -- he called me or I called him, and anyway we met there again. And I told him what happened. The real story.
Q: How much after the Monday was this?
Q: But you called him from your office?
A: I may have. Or he called me.
A: I'm not sure. I don't remember who called who, but I'm pretty sure there was a phone call.
Q.:Saying let's get together?
Q: At Lacibeles? What -- what I'm trying to do here, Judge, is -- is clarify how the meeting came together, and I understand that you can't recall whether you called him, or he called you. It is understandable if you called him, you might say Paul, something I want to talk to you about. What I'm trying to understand the other part of the equation, if he called you? Then what would have prompted him to call you? If you know?
Q: In between these two times, namely the meeting at the restaurant probably that Monday, and the telephone call setting up this second I wouldn't say appointment, meeting, had you had any conversations with him that you recall?
Q: All right, so did you then go ahead and meet a second time, a couple of days later?
A: I explained to him exactly what happened.
Q: What was his response?
A: He -- he had no knowledge who Mr. Ciardella was, and he couldn't understand why he was coming to me.
Q: Did you explain why -- did you explain to Haggerty the relationship between you and Ciardella?
Q: Did he then understand why he'd gone to you?
Q: What was Haggerty's general response to the whole affair?
A: He said something to the effect that well, it looks like he's trying to get both of us in trouble.
Q: Do you know of any motivation that Ciardella would have to get either of you in trouble?
Q: Do you have any idea why Haggerty would have said something like that?
Q: Was there anything else to the conversation between you and Haggerty that -- that second occasion?
A: No, other than he said he would -- he really didn't know what to do so -- I said, "we've got to report it, just as I reported it to you you're my boss. Now we've got to go another step further, and I don't know who you -- who you report to." And he says, "Well, he'll bring it to the County Prosecutor."
Q: Okay. Did he know the County Prosecutor?
A: Well the County Prosecutor I'm referring to was in -- at that time was running our Police Department. He was on loan from the County of Bergen, and he was running our Police Department.
Q: Do you recall his last name?
Q: So what happened next?
A: He told me he would report it to Tolbin. And that somebody would be in touch with us.
Q: Did you have any further conversations, with Haggerty other than the ones you've described, before you finally gave the money up? Before you finally -- handed the money over to the Prosecutor's Office?
A: Like every couple of weeks. He'd ask me did you hear from the Prosecutor, I said, no. I said did you? He says no.
Q: Had he told Tolbin by that time?
Q: Do you know when he told Tolbin with reference to your --
A: It seemed to me it was a couple of days later.
Q: Did he tell you -- did Haggerty tell you what Tolbin said to him?
A: Other than -- no nothing specific, other than the County was now going to handle it.
Q: When did you finally give the money to the Prosecutor's Office?
Q: Wasn't that the day after Christmas?
Q: And after you reported this to Commissioner Haggerty, you were then waiting for the Prosecutor's Office to contact you, is that correct?
Q: And when the Prosecutor's Office finally did contact you did you make arrangements to immediately go down to the Prosecutor's Office, and turn the money over to them?
Q: Did you also tell the Prosecutor's Office you would cooperate in any manner that they wanted you to, with whatever investigation they were conducting?
A: They wanted to put a wire on me. And I said it was --
Q: And you were ready, willing and able to cooperate by recording any conversations they wanted you to record with anyone? Is that correct?
Q: Did they ever ask you after you voiced your willingness to do so, to -- to wear a wire?
A: They -- well it's my understanding that they researched the matter and said, well whatever I get from Mr. Ciardella on a wire be considered attorney/client privilege.
Q: And so the answer is no?
A: So the answer is no, in the meantime they threw me away, and they put the wire on Mr. Haggerty.
Q: Is there anything in retrospect you'd do differently, if you had it all to do over again?
A: I would -- yes I wouldn't have --I shouldn't have considered Mr. Haggerty as my boss, although he is my boss. I would have found another boss.
A: To report it to. But under the Commission form of Government, he's my boss.
Q: Because he's Director of Public Safety?
Q: Okay. Besides Haggerty being your stockbroker, what -- could you describe what your relationship is with him?
A: I've known him for 30 years. His -- his father-in-law and my father were Assistant Prosecutor's together in Bergen County at some point in time, so. His family and my family have been friends forever.
Q: So would you consider him a close personal friend?
Q: Given that background, can you try to explain to me why the first time you spoke to Haggerty did -- you just didn't come right out and tell him what had happened, you used the -- hypothetical --
A: Because I didn't -- I didn't want to get him involved, if I didn't have to. Because the guy's approaching me, even though he's telling me to give it to the Commissioner, I'm saying well why should I get him involved. I mean just deal with it myself here, rather than getting him involved, if I didn't have to.
Q: Okay, and -- and what -- what prompted you after that initial conversation to then have another conversation with Haggerty when you laid it all out on the line rather than taking some immediate action yourself, with the Prosecutor's Office?
A: Because I -- I was like still stunned for a couple of days, I'm thinking, what did I do now, what did I do now, like I said, I'm not sure -- I'm not sure if he called me, or I called him, but I know one of us then said, I guess, somebody's got to tell the whole story here.
MR. MONAHAN: Excuse me, when did the name Ciardella enter the picture in your conversations with Haggerty?
JUDGE BRESLIN: When I finally told him about the money. You know, within a couple of days after I guess.
MR. MONAHAN: Okay. So the first time that Monday probably, you said, here's the hypothetical situation, he says hear no evil, see no evil in effect? Then a couple of days later, you meet again, and that's when you reveal to him the name of Ciardella when you're giving the --
JUDGE BRESLIN: I believe so.
MR. MONAHAN: -- the -- does he say anything when you say Ciardella?
JUDGE BRESLIN: No, he said, "That doesn't mean a damn thing to me." I says, "Well it probably shouldn't," I says, ". . . because he lives in Toms River." And he says, "Well where did his son live." I says, "To be honest with you, I guess he lives in Lyndhurst, but I don't even know him."
MR. MONAHAN: Did you get a feel for Haggerty's reaction to this whole thing?
MR. MONAHAN: You said something earlier, here's why I'm asking this question, you said something earlier about him saying to you, "It looks like they're trying to take us both down."
MR. MONAHAN: Now, was he under any kind of political fire that somebody would be trying to take him down?
JUDGE BRESLIN: A thousand percent at that time yes. Much fire.
MR. MONAHAN: A political faction, or from individuals?
JUDGE BRESLIN: I -- the best way I can explain it, is Chief of Police resigned, or retired, Haggerty appointed somebody in his place. That offended one -- one faction. Who then has the Chief of Police before he resigns, appoint the other faction as the Chief. So now -- Haggerty appointing one Chief, and the Chief of Police resigning, appointing another Chief, so there's a battle. He goes to the Attorney General's Office, and that's -- they go to the County, who then puts their own man in there, until it's straightened out. At that point, the -- it was one faction fighting Haggerty, completely day in and day night. Even until today. There's a Federal lawsuit still going on, between this one faction, Haggerty and the Town.
MR. FLOOD: Who's suing whom?
JUDGE BRESLIN: Fellow that was a Deputy -- Deputy Police Chief, is suing Haggerty and the Town of Lyndhurst for violation of his Federal Civil Rights.
MR. FLOOD: Because he didn't get the job?
JUDGE BRESLIN: Correct. Haggerty thought this fellow was the one that set both of us up.
MR. TONELLI: Can you give us a -- a time frame as to your understanding of when the Prosecutor's Office found out about this from Haggerty, do you have any idea as to what time frame we're talking about?
JUDGE BRESLIN: A week or two after I got the envelope, that was my understanding.
MR. TONELLI: So we're talking the end of October, or early November? Some time in --
JUDGE BRESLIN: The Prosecutor's Office, meaning --
JUDGE BRESLIN: Mr. Tolbin who was in Lyndhurst, yeah.
MR. TONELLI: Right. Right. And you didn't turn the envelope over until December 26th, which is almost two months after --
MR. TONELLI: -- the Prosecutor's Office, through Tolbin was informed? Did there ever come a point in time, during that two month stretch where you thought to yourself, hey I don't know what's going on, nobody's contacted me, maybe I should give a call to the Prosecutor's Office, and see what's happening?
JUDGE BRESLIN: No, but -- well, I got very panicky after a while. I'm saying, what the hell is going on. I figured well maybe some day in the paper I'll pick it up, the guy's arrested, but -- near the end I was like -- I didn't know what to do.
MR. TONELLI: Did the Prosecutor's Office offer any explanation as to why it took them so long to contact you?
JUDGE BRESLIN: Not to me, no. Maybe they did to Mr. Flood, I don't know.
3. Respondent testified before the three-judge panel on October 1, 1999. He was first questioned by his counsel, Raymond Flood, and was then cross-examined by Assistant Attorney General, Jeffrey Miller. The following are relevant excerpts from his examination and cross-examination.
DIRECT EXAMINATION BY MR. FLOOD:
Q: Judge Breslin, what's your date of birth?
Q: And when did you graduate from law school?
Q: And when were you admitted to practice law?
Q: Just briefly tell us about your family.
A: Four children, three grandchildren.
Q: And did you open a practice of law after being admitted to the Bar?
Q: And where was that office?
A: The same office I am now, Ridge Road, Lyndhurst.
Q: And did there come a time when you became appointed the Municipal Court Judge in Lyndhurst?
Q: Now, Joseph Ciardella, did you perform some legal work for Mr. Ciardella?
A: First time was in the early '70s.
Q: Do you recall what the nature of the legal work was that you performed?
A: Mr. Ciardella was, at that time his name was DuBois, D-U, capital B-O-I-S. He was getting married and he wanted his stepfather to adopt him prior to getting married. So then the offspring could be his stepfather's, in effect, grandchildren.
Q: And by the way, did you ever go to school with Mr. Ciardella?
A: No, sir. I didn't even go to school in Lyndhurst, except for a couple of years.
Q: Where did you go to school?
Q: Now, did you perform any other legal work for Mr. Ciardella after the name change?
A: Yes. I believe it was maybe a couple years prior to this incident. I handled, had an estate matter for Mr. Ciardella.
Q: And do you recall briefly what you did pertaining to that legal matter?
A: The last heir of the Ciardella family died leaving an estate of, I don't know how much it was. Mr. Ciardella figured since he was a Ciardella, he was entitled to his share of the estate.
Technically, he was not blood related, he was not a blood related Ciardella, he just legally changed his name to Ciardella. He wanted me to sue the estate to get his share of the estate money.
Q: Now, do you know Paul Haggerty?
Q: How long have you and Mr. Haggerty known one another?
Q: And what has been the nature of your relationship with Mr. Haggerty?
Q: How often would you see Mr. Haggerty on a weekly basis?
A: Well, when he was police commissioner, he lived in the town hall, so any time I was down there, I saw him almost daily down at the town hall. The police were in the court two or three times a week now, I guess.
Q: Are you familiar with the way he conducted himself as a commissioner?
Q: And how would you describe the way Mr. Haggerty conducted himself when doing anything of a public nature?
A: Honest, straightforward. He was the only police commissioner that I worked under that actually cared about the department, that put any time in on it.
Q: Are you aware of an incident when he was on the Board of Education involving an attempt to have someone influence his vote on a matter of some importance?
Q: How were you aware of that?
A: He -- I heard it from other people, but he also told me. It was kind of ...