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Piniero v. New Jersey Division of State Police

December 12, 2008

FERNANDO PINIERO, PAUL DEHOPE, JOSEPH SOULIAS, JOHN MORALES, THOMAS PRIMO AND DENNIS VECCHIARELLI, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY DIVISION OF STATE POLICE, CARSON DUNBAR, CARL LEISINGER, HOWARD BUTT, VINCENT MODARELLI, WILLIAM NEWSOME, EDGAR HESS, KENNETH HESS, FREDERICK MADDEN, ROBERT DUNLOP, WILLIAM MEDDIS, KIM HUSBAND, BARRY BOWERS, ROBERT KILMURRAY, LOUIS TORANTO, DONALD IZZI, MICHAEL FORTINO, JOHN GORE, DEBRA STONE, ANTHONY COWELL, GAIL MAZUCO, DEFENDANTS-APPELLANTS.
JOSEPH SANTIAGO, INTERVENOR-APPELLANT.
MARTIN TEMPLE, MARCO G. PERALTA, AND THOMAS SUSCEWICZ, PLAINTIFFS-RESPONDENTS,
v.
PETER C. HARVEY, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, THE STATE OF NEW JERSEY, JOSEPH "RICK" FUENTES, ROSE ANNE MANGHISI, DEFENDANTS-APPELLANTS.
JOSEPH J. SANTIAGO, INTERVENOR-APPELLANT.
DAVID KUSHNIR, THOMAS PRIMO, AND DENNIS VECCHIARELLI, PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, OFFICE OF THE ATTORNEY GENERAL, NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE, NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE DEFENDANTS-APPELLANTS.
JOSEPH SANTIAGO, INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1976-03.

The opinion of the court was delivered by: Winkelstein, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 7, 2008

Before Judges Winkelstein, Fuentes and Chambers.

This appeal requires us to determine whether the contents of a four-way investigation report of a prospective gubernatorial appointee prepared at the Governor's request is subject to discovery by plaintiffs, New Jersey State troopers, who allege that they were retaliated against because of their involvement in preparing and compiling information for the report.

In 2002, Governor James McGreevey announced his intention to nominate Joseph Santiago, the Police Director of the Newark Police department, as Superintendent of the New Jersey State Police. Accordingly, the State police, at the direction of the Attorney General, conducted an investigation of Santiago's background, commonly referred to as a four-way investigation. See Nero v. Hyland, 76 N.J. 213, 217 n.1, 224 (1978). The investigation includes "a check of the F.B.I. 'rap sheet,' State Police records, and interviews of all persons with information relevant to the purposes of the check." Id. at 217 n.1.

Plaintiffs have sued the State and various State employees, raising constitutional, statutory and common-law claims. Among those claims are plaintiffs' allegations that they were retaliated against for reasons related to Santiago's four-way investigation. Consequently, during the course of discovery, plaintiffs requested the release of the four-way investigation report. Defendants refused plaintiffs' requests, asserting that the four-way investigation report was exempt from public disclosure based on executive privilege. On August 23, 2007, the trial court ordered the release of redacted portions of the report, and subsequently denied defendants' motion for reconsideration.

On leave granted, we reverse. Plaintiffs either have not shown the requisite interest to entitle them to disclosure of the privileged documents that constitute the four-way investigation report, or to the extent that such interest has been demonstrated, their interests do not outweigh the public's interest in keeping the report confidential.

I.

Three sets of plaintiffs with varying degrees of involvement in the four-way investigation filed lawsuits alleging that defendants retaliated against them by transferring them to other units and by failing to promote them. The trial court consolidated the lawsuits for discovery.

The "Piniero" plaintiffs, Fernando Piniero, Paul DeHope, Joseph Soulias and John Morales, claim that they were discriminated against in their employment on the basis of race because they refused to engage in racial profiling at the direction of their supervisors. They further assert that they were retaliated against for refusing to engage in illegal and criminal activities, and for informing their superiors "about violations of law and policy within the [New Jersey State Police]." Their claims are based on allegations of a continuing course of conduct that began prior to the Santiago investigation. Although these plaintiffs were not involved in the Santiago investigation, they allege they were retaliated against as a result of their association with the Kushnir plaintiffs.

The "Kushnir" plaintiffs, David Kushnir, Thomas Primo, and Dennis Vecchiarelli, had been assigned to the State Police Organized Crime Unit. They allege that defendants retaliated against them because they reported information received from confidential sources that Santiago had ties to organized crime, and he had been using on-duty Newark police officers to construct a home. They memorialized their findings in a series of "Investigator's Reports" that they submitted to their superiors. These plaintiffs were not involved in the four-way investigation; however, they assert "upon information and belief," that "much of the information" that they uncovered was "simultaneously uncovered by the individuals conducting the Four-Way investigation."

The "Temple" plaintiffs, Martin Temple, Marco Peralta and Thomas Suscewicz, were assigned to the State Police Special Investigations Unit (the SIU), which conducts the four-way investigations. During the course of the Santiago investigation, some of the information was leaked to the press. The Temple plaintiffs allege that Santiago called Temple during the investigation and stated that "someone ...


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