On appeal from Office of the Attorney General, Department of Law and PublicSafety.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 14, 2006
Before Judges Skillman, Holston, Jr. and Grall.
This appeal is before us for the second time. In our first opinion, we held that the Attorney General was required under the provisions of the Tort Claims Act dealing with the representation of State employees, N.J.S.A. 59:10A-1 to -6, to provide representation to defendant, Harry Pappas, a former Special Assistant to the Commissioner of Labor, in four actions brought against him under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Prado v. State, 376 N.J. Super. 231, 240-45 (App. Div. 2005). The Supreme Court granted the Attorney General's motion for leave to appeal and reversed on the ground that we had applied the wrong standard in determining whether the Attorney General was required to provide Pappas representation. Prado v. State, 186 N.J. 413, 424-27 (2006).*fn1
The Court remanded to this court for reconsideration of the representation issue based on the standard it had articulated. Id. at 429. We in turn remanded the matter to the Attorney General for reconsideration based on this standard.
An Assistant Attorney General, acting on behalf of the Attorney General, reaffirmed her predecessor's decision to deny Pappas representation. Although the Attorney General's representative gave Pappas a statement of reasons for the denial of representation, as required by the Court's opinion, id. at 427, she did not identify any factual circumstances relevant to the representation issue in addition to those set forth in this court's and the Supreme Court's prior opinions.
The Supreme Court's opinion contains the following description of the facts relevant to the Attorney General's obligation to represent Pappas:
At a staff meeting on June 7, 2001, defendant Harry Pappas, Special Assistant to the Commissioner of the Department of Labor, addressed Department of Labor employees for several hours concerning changes intended both "to improve enforcement of prevailing wage regulations and to achieve higher performance standards by the field staff." Afterwards, a number of those present complained that Pappas made "offensive and/or inappropriate comments," particularly in describing Hispanic workers and women. As a result of those complaints, the Labor Department's Affirmative Action Officer, Gail Ericson, conducted an investigation, interviewing Pappas and nineteen of the twenty-six persons who attended the meeting.
All those interviewed stated that Pappas "referred to non-English-speaking workers at inspection sites as 'wetbacks.'" Several remembered Pappas describing the "Spanish language as 'jibber-jabber' or some similar phrase." Seven staff members stated that Pappas "used derogatory terms in reference to women, variously reported as 'bitch,' 'skirt,' or 'dolly.'" It was also reported that he told a female administrator to "'go sit at [her] desk and count paper clips.'" Various staff members described Pappas' general behavior during the meeting as "aggressive, demeaning, arrogant, and insensitive." Additionally, they claimed that Pappas boasted that he had a "close relationship with the Commissioner and Governor" and "that anything he said or did" had their "full backing."
During his interview, Pappas gave a decidedly different slant to what occurred at the meeting. He explained that he was implementing "understandably unpopular" changes and that his conduct was not "inconsistent with business necessity." He admitted that he "used the terms 'wetback' and 'boat-jumper,' possibly several times, but insisted that he was trying to make a point that whatever you call [those] individuals, they deserve to be treated like people." He maintained that he did not intend to offend anyone by using those terms. He, however, "denied making derogatory remarks or using belittling appellations in reference to women."
At the conclusion of the investigation, Labor Commissioner Mark B. Boyd determined that Pappas had made "various offensive, discriminatory remarks" when referring both to "non-English-speaking workers at inspection sites" and women. He also noted that "the majority of workers in attendance at the June 7, 2001 meeting" considered Pappas' behavior to be "insensitive and abrasive." The Commissioner asserted that the ethnic slurs and sexist language used by Pappas were "unacceptable in any place of business controlled by [the] Department, especially when used by an executive employee while making a presentation to staff employees." The Commissioner concluded that Pappas had "violated both the letter and intent of the New Jersey State Policy Prohibiting Discrimination, Harassment or Hostile Environment[s] in the Workplace."
As a result of his findings, the Commissioner directed that Pappas receive sensitivity counseling and "refrain from using discriminatory and offensive language in the future." He also indicated that "Human Resources [would] be consulted to ...