On appeal from the Superior Court of New Jersey, Law Division, Morris County, MRS-L-1106-02.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Winkelstein and Francis.
Defendant, Louis Pirrello, was a Morris Township Police Officer. Plaintiff, Imma Aperuta, sued him and the Township for defamation after he told a third party that plaintiff may have AIDS. Plaintiff alleged, among other things, that Pirrello was acting in the course of his employment at the time he made the statement. The Township declined to provide Pirrello with a defense to plaintiff's complaint on the grounds that when he made the remark, he was off duty and not "acting in [his] professional capacity within the course and scope of his employment." The case with plaintiff settled for $22,000; Pirrello paid $2500 and the Township paid the rest.
Pirrello moved to compel the Township to pay his $15,000 counsel fee. The Law Division judge granted the motion, finding that the Township owed Pirrello a defense under N.J.S.A. 40A:14-155. It is from that decision that the Township appeals. We affirm.
The material facts are essentially undisputed. Pirrello was hired by the Township as a police officer in June 1997. During his training that summer, he and his field training officer, Richard Ferrone, responded to a 911 call from plaintiff's residence. On the way to the house, Ferrone told Pirrello to "glove up" when he went to the house, meaning that plaintiff had AIDS. From that point until the incident at issue, which occurred on April 7, 2001, Pirrello did not tell anyone that plaintiff had AIDS.
On the latter date, Pirrello, his brother-in-law, Ronald Price, and Price's friend and co-worker, Steve Kurilla, attended a private dinner at a hunting club. Pirrello, who was off duty and not in uniform, met Kurilla for the first time that evening. During their conversation on the way home from the dinner, Kurilla mentioned a woman he "was breaking up with or on the verge of [breaking up with]." When Pirrello learned that Kurilla was talking about plaintiff, he told him: "be careful, she may possibly have the package," referring to AIDS. Pirrello admits making the statement. It is undisputed that he told Kurilla what he believed to be plaintiff's condition because he did not want him to risk getting AIDS.
Kurilla subsequently told plaintiff what Pirrello said. She became upset. She told Kurilla that several years earlier (on May 7, 1997, a month before Pirrello was hired by the Township), the police responded to her home after she took an overdose of pills. At that time, she told the police she feared she was HIV-positive. She subsequently learned that she was not.
When a municipal police officer is a defendant in a lawsuit, the governing body of the municipality is required to provide the officer with the means for a defense of that action if the "legal proceeding [arose] out of and [was] directly related to the lawful exercise of police powers in the furtherance of his official duties." N.J.S.A. 40A:14-155. Mindful of those criteria, the Law Division judge provided the following reasons in support of her order that the Township pay Pirrello's counsel fees:
While it was a narrow [decision] as to whether Pirrello was involved in a "proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of his official duties," N.J.S.A. 40A:14-155, [Pirrello] has shown by a preponderance that his communication "arose out of" his employment.
He received the information while on duty, from his commanding officer. In an effort to avoid both transmission of AIDS and a violation of N.J.S.A. 2C:34-5(b), both goals of his employment, he made the communication in question. Accordingly the nexus is sufficient, even if just barely so.
N.J.S.A. 40A:14-155 was amended in 1986 (the 1986 amendment). L. 1985, c. 457 § 1. Before the amendment, an officer was entitled to a defense if the legal proceeding "[arose] out of or [was] incidental to the performance of his duties." Monek v. Borough of S. River, 354 N.J. Super. 442, 451 (App. Div. 2002). When initially enacted in 1946, the statute was intended to "'increase the morale of police departments.'" Van Horn v. City of Trenton, 80 N.J. 528, 536 (1979) (quoting Statement Accompanying Senate Bill No. 26 (1946)). It was enacted, in part, in "an apparent legislative concern that police officers might be discouraged from effectively pursuing their duties if they were forced to provide their own defense against civil actions and criminal charges brought by disgruntled 'victims' of law enforcement." Van Horn, supra, ibid.
The New Jersey Supreme Court broadly interpreted the statute's reach, finding that it afforded municipal police officers a defense not only to actions where charges against the officer arose from the performance of that officer's duties, but also applied: whenever an officer is required to pay counsel to respond to unfair charges because he is an officer, and unfair charges arise not only from performance of duties. They are sometimes made, and often without foundation, against someone, not because he or she did anything at all, but solely and primarily because of his or her identity or status as a police officer. [Moya v. City of New Brunswick, 90 N.J. 491, 500-01 (1982) (footnote omitted)].
In other words, so long as a defendant's "status" as a police officer was the reason the officer was a defendant in a lawsuit, the Court construed N.J.S.A. 40A:14-155 to require a municipality to provide the officer with a defense.
That interpretation of the statute triggered a legislative response. Effective January 15, 1986, the Legislature enacted the 1986 amendment to counter the Court's decisions that had expanded the literal terms of the original legislation. See Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 628-29 (App. Div.) (finding amendment to N.J.S.A. 40A:14-155 intended to "counter the judicial decisions that expanded the obligations imposed upon municipalities to reimburse police officers beyond the literal terms of the statute"), certif. denied, 121 N.J. 660 (1990). To effectuate that intent, the words arising out of or incidental to the performance of his duties were replaced with: arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties. Monek, supra, 354 N.J. Super. at 451 (our emphasis). The amendment was intended to "eliminate the coverage of this section for charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties, and for 'status charges.'" Senate County and Municipal Government Committee Statement, Senate No. 1684 L. 1985, c. 457. Under the amendment, the focus is on the "nature of the police officer's conduct rather than who has initiated the proceeding against him." Gabbianelli v. Twp. of Monroe, 271 N.J. Super. 544, 549 (App. Div.), certif. denied, 137 N.J. 307 (1994).
Here, Pirrello claims that under the 1986 amendment the Township was obligated to provide him with the means for his defense. He asserts that while the incident did not occur during his designated working hours, as a police officer he is always on duty with an obligation to enforce the law and protect the public. He contends that is what he was doing when he warned Kurilla about his possible exposure to AIDS. To support this argument, he relies on a number of factors. First, he points to the Township Law Enforcement Code of Ethics (the Code) found in the Morris Township Police Manual. That says, in part,
As a LAW ENFORCEMENT OFFICER, my fundamental duty is to serve mankind; to safeguard lives and property . . . .
General Responsibilities. Members shall at all times take appropriate action to: