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Court refuses to let Hackensack officer sue Bergen prosecutor for suspension

Photo Credit: Cliffview Pilot

YOU READ IT HERE FIRST: A state appeals court has refused to allow a Hackensack police officer to hold the Bergen County Prosecutor’s Office legally responsible for her suspension while the agency was monitoring the city department after criminal charges were filed against now-suspended Chief Ken Zisa.

INSET: Bergen Prosecutor John L. Molinelli ( CLIFFVIEW PILOT photo: No re-use without hyperlink)

Alessandra Viola had asked a state Law Division judge to include Bergen County Prosecutor John L. Molinelli’s office and the county in her complaint against Zisa and the city over a 75-day suspension.

The judge agreed, but the appeals court – in a decision released yesterday – overturned the lower-court ruling.

The justices said their fellow judge made a mistake in reading an agreement with the city granting Molinelli monitoring authority over the then-tumultuous department.

Viola began working for the city in 1998, first as a dispatcher and then a police officer. A decade later, she was recording secretary for the Patrolmen’s Benevolent Association local.

In September 2009, Viola sued Zisa, alleging that she was subjected to sexual harassment and a hostile work environment because she refused to “fix” the PBA election and rejected sexual advances from the chief and his brother, who also is with the department.

Viola cited an internal police investigation into a claim that she was driving while on the suspended list, which led to criminal charges that later were dropped and a disciplinary hearing that yielded the 2 ½-month suspension.

Last year, Zisa was indicted for insurance fraud and official misconduct by a grand jury in Bergen County. City officials suspended him and signed a Memorandum of Understanding under which the prosecutor’s office monitored the department, with city Capt. Tomas Padilla serving as acting commander.

Under the MOU, all personnel decisions involving “transfers of assignment, promotions, demotions or any other change in assignment or remuneration,” as well as the “initiation and resolution of any disciplinary proceedings and matters” had to first be approved in writing by Molinelli or his designee.

Internal affairs matters were to “continue in the normal course but be directly overseen by the [BCPO],” the agreement stipulated. “No investigation ‘shall commence, nor charge filed, be it administrative, criminal or otherwise, without the prior express written approval of the Office of the [BCPO].”

The prosecutor’s office had the ability to “supercede the-then existing Chain of Command of the department . . . to administer [its] daily operations,” it added.

However, outstanding issues could continue in-house, it said.

The harassment and retaliation continued, Viola claimed in her suit. She said she was berated in front of co-workers for going over the head of a supervisor who “delayed answering her request for vacation,” had to raise a stink in order to get paid leave to attend a PBA convention and saw threats she said were made against her by an anonymous source ignored by internal affairs investigators.

This became Viola’s grounds for asking the court to include the prosecutor’s office and county government in her complaint “on the theory that both failed in their obligations as monitors, and effectively as her employers, under the MOU,” court papers show.

The disciplinary process continued, including a six-day hearing. On Jan. 28 this year, the hearing officer upheld many of the disciplinary charges while dismissing others against Viola, she alleges in the lawsuit.

On Feb. 14, the city suspended her, without pay, for 75 days.

Three weeks later, the prosecutor’s office and the county asked to be dropped from Viola’s civil suit. A New Jersey Law Division judge denied the request – saying that both could be held legally responsible for all administrative decision by the city department, under the MOU.

But the appeals court says the judge “failed to appreciate the distinction between monitoring and supercedure.” In the opinion of the higher court, Molinelli’s office was “exercising its law enforcement function in monitoring the HPD and, therefore, is entitled to prosecutorial immunity” in Viola’s case.

“No court has ever held a prosecutor or county to be an ‘employer’ of a local police department’s officer where they allegedly failed to properly monitor a personnel matter involving the officer,” the decision says.

What rights Viola claims the BCPO violated were “not sufficiently clear,” the appeals judges ruled. The administrative functions that Molinelli’s office were entitled to override, under the agreement, included hiring, firing, promotion, demotion, transfer or other assignment of police department employees, they noted.

Yes, the judges said, the MOU authorized the prosecutor’s office to approve initiating and investigating new disciplinary charges against department employees.

However, “nowhere in the MOU is the BCPO authorized to intercede in, much less dismiss, pending disciplinary charges against department employees instituted before and predating the execution of the MOU,” the appeals decision says.

[ FROM THE MOU: “Any matters currently pending as a Municipal Investigatory matter shall not be affected by this Memorandum, as they are functions of the City Government.” ]

The departmental charges against Viola had already been investigated and referred to the city for discipline under state civil service regulations, the appeals judges said, noting that Viola “has not claimed otherwise in her complaint.”

Under those regulations, only the individual who is disciplined can appeal: Molinelli couldn’t have interceded even if he wanted to, according to the appeals court decision.

“Lacking both the ability and the power, [the prosecutor’s office and the county] therefore could not, as a matter of law, be found liable…,” it says.

The judges also ruled that the county wasn’t even part of the MOU and, therefore, couldn’t be held liable in any way.

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