On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-2184-02, L-1687-02, L-1797-02.
Before Judges Skillman, Grall and Riva.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal involves interpretation of the statutory provisions governing the Attorney General's duty to provide representation to a State employee who is sued for money damages for an act in the scope of employment. The appeal also involves the jurisdiction of the trial court before which the suit is pending to review the Attorney General's denial of representation.
Defendant Harry Pappas is a former Special Assistant to the Commissioner of Labor. On June 7, 2001, Pappas addressed members of the staff of the Office of Wage and Hour Compliance at a regularly scheduled staff meeting to inform them of various changes in procedures designed to improve enforcement of prevailing wage regulations. Pappas spoke for several hours. During the course of his comments, Pappas used the term"wetbacks" and"boat-jumpers" to refer to non-English-speaking workers at inspection sites and the term"bitch" to refer to female workers. Pappas also bragged about his close relationships with the Commissioner of Labor and Governor and indicated that his comments regarding the operations of the Office of Wage and Hour Compliance had their"full backing."
After the meeting, several staff members who had attended the meeting complained about the offensive language Pappas had used in speaking to them. The Commissioner referred these complaints to the Department's Affirmative Action Officer, who interviewed Pappas and eighteen of the twenty-six staff members who attended the meeting. This investigation confirmed that Pappas had used offensive language, and on this basis, the Commissioner issued a letter of reprimand, which stated in part:
An investigation was conducted by Gail Ericson, Affirmative Action Officer, as a result of allegations by several members of the staff of the Office of Wage and Hour Compliance that you made statements which violated the New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environment in the Workplace.
I appreciate your argument that you had no discriminatory intent and that your comments regarding illegal aliens were taken out of context. You specifically contend that your use of an ethnic slur was intended to convey that no matter what an individual may call an illegal alien, they were still entitled to protection by the State of New Jersey. Regardless of your contention, the use of such a term is unacceptable.
I expect that you will scrupulously adhere to a standard of personal conduct, which corresponds to all State and departmental policies that prohibit the type of conduct for which you are now being reprimanded.
Subsequently, four members of the Office of Wage and Hour staff who had complained to the Commissioner about Pappas' offensive comments brought civil actions against Pappas, Commissioner Mark Boyd, Assistant Commissioner Leonard Katz, Director of the Division of Wage and Hour Martin Gartzman, Assistant Director of the Division Michael McCarthy and the Department of Labor. Their complaints alleged that defendants had taken adverse employment actions against them because they complained about Pappas' offensive comments, in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to 8. Their complaints also alleged that Pappas' comments at the June 7, 2001 meeting violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. In addition, two plaintiffs alleged that Pappas had defamed them by calling them"incompetent or negligent." These actions were eventually consolidated.
Pappas requested the Attorney General to represent him in these actions and to indemnify him for any judgment that might be entered. On July 2, 2003, an Assistant Attorney General sent a letter to Pappas denying his request for representation, which stated:"Please be advised that your request has been denied pursuant to N.J.S.A. 59:10A-2 as the acts alleged in the above captioned matter[s] are outside the scope of your employment and constitute willful misconduct." The Attorney General is providing representation to the other defendants.
Sometime thereafter, Pappas filed a motion in the Law Division, where the actions against him were pending, to compel the Attorney General to provide him with a defense and indemnification. The trial court granted Pappas' motion and entered an order requiring the Attorney General to provide him representation.
The Attorney General filed a motion for reconsideration in which he argued for the first time that only this court may review a decision to deny a State employee ...