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Alessandra Viola v. County of Bergen and Bergen County Prosecutor's Office

December 15, 2011

ALESSANDRA VIOLA, PLAINTIFF-RESPONDENT,
v.
COUNTY OF BERGEN AND BERGEN COUNTY PROSECUTOR'S OFFICE, DEFENDANTS-APPELLANTS,
AND CITY OF HACKENSACK AND CHARLES K. ZISA,
DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11052-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2011

Before Judges Parrillo, Grall and Alvarez.

We granted leave to appeal from the Law Division's January 7, 2011 order granting plaintiff Alessandra Viola leave to file a second amended complaint adding the County of Bergen and the Bergen County Prosecutor's Office (BCPO) as named defendants, and from the March 4, 2011 order denying these defendants' motion for reconsideration. For the following reasons, we reverse.

Plaintiff, Alessandra Viola, is a police officer employed by the City of Hackensack. She has been working for the City since 1998, first as a dispatcher then as a police officer. Beginning in June 2008, plaintiff was involved in running the Patrolmen's Benevolent Association (PBA) election.

On September 28, 2009, plaintiff filed a lawsuit against Chief of Police Charles Zisa and the City of Hackensack alleging retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; sexual harassment, quid pro quo sexual harassment and hostile work environment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; and deprivation of her civil rights in violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2. Plaintiff claims that Zisa retaliated against her for her refusal to assist in "'fix'[ing] the PBA election" and for her rejection of his and his brother's sexual advances. The alleged acts of retaliation and harassment included the commencement of an internal police investigation into a claim that plaintiff operated a police vehicle while her New Jersey driver's license was suspended, resulting in departmental disciplinary charges brought against her in 2009,*fn1 and criminal charges filed in 2009.*fn2

Thereafter, Zisa was indicted for insurance fraud on April 30, 2010 and later, on May 26, 2010, for official misconduct. He was suspended from the police department. As a result, pursuant to the Criminal Justice Act of 1970, N.J.S.A. 52:17B-98 to -117, and to "maintain and ensure the orderly administration of the law enforcement function[,]" on April 30, 2010, the City of Hackensack and the BCPO entered into a Memorandum of Understanding (MOU), wherein the BCPO "deem[ed] it necessary to provide temporary oversight, through a Monitor, of all major policy decisions and further oversight over the implementation of daily police operations as shall be administered by a City appointed Acting Officer in Charge . . . ."

In furtherance of this goal, the MOU provided for the City's appointment of a police captain (Tom Padilla) as the "Acting Officer in Charge" (AOIC) of the police department, "responsible for [its] day-to-day operations," effective for the duration of the MOU, which terminated on March 11, 2011. The AOIC was considered to be the "Chief Law Enforcement Officer for the City of Hackensack Police Department, and [was to] assume such role and responsibilities as provided by law and statutes." However, all personnel decisions involving "transfers of assignment, promotions, demotions or any other change in assignment or remuneration" were subject to the express written approval of the BCPO, as were the "initiation and resolution of any disciplinary proceedings and matters." (emphasis added).

According to the MOU, the police department's internal affair's function was to "continue in the normal course but be directly overseen by the [BCPO]." Thus, "[n]o investigation or proceeding shall commence, nor charge filed, be it administrative, criminal or otherwise, without the prior express written approval of the Office of the [BCPO]." However, "[a]ny matters currently pending as a Municipal Investigatory matter shall not be affected by this Memorandum, as they are functions of the City Government." Finally, the BCPO reserved unto itself, in its exclusive discretion, the right under the Criminal Justice Act of 1970, to "supercede the then existing Chain of Command of the department . . . to administer [its] daily operations." See N.J.S.A. 52:17B-107. Significant, for present purposes, the BCPO never exercised its prerogative of supercession throughout the duration of the MOU.

According to plaintiff, after the MOU was executed, she continued to be subjected to retaliation and harassment. Consequently, on September 29, 2010, plaintiff moved for leave to file a second amended complaint adding the County and the BCPO as named defendants, on the theory that both failed in their obligations as monitors, and effectively as her employers, under the MOU. Although she alleged specific examples of harassment and retaliation in her proposed complaint,*fn3 the gravamen of plaintiff's claim was that the County and the BCPO (hereinafter defendants at times), failed to dismiss the pending disciplinary charges against her.

By then, however, the departmental disciplinary charges had already been referred, in the normal course, to the City, a civil service municipality, as the appointing authority, for hearing and resolution pursuant to civil service regulations. A six-day hearing was held from October 12 to November 30, 2010, culminating in a January 28, 2011 written decision of the hearing officer sustaining many of the disciplinary charges and dismissing others, and recommending a penalty of suspension without pay for seventy-five days. On February 14, 2011, the City served plaintiff with its final Notice of Disciplinary Action, adopting the hearing officer's findings and recommendations, and imposing the penalty of seventy-five days suspension without pay.

In the meantime, on January 7, 2011, the Law Division, without benefit of oral argument on plaintiff's application, granted her leave to file a second amended complaint naming the County and the BCPO as defendants. On February 7, 2011, defendants sought reconsideration and dismissal of the second amended complaint. On March 4, 2011, the Law Division judge denied defendants' motion for reconsideration and instead granted plaintiff's cross-motion to file a third amended complaint. In her written decision, the judge reasoned that "the express provisions [of the MOU] are sufficient to lay the groundwork for a nexus of exposure to liability between [p]laintiff's claims and the County and ...


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