The Township of Jackson and the Ocean County Prosecutor’s Office were just slammed with a civil lawsuit filed by a suspended sergeant. He asserts that he was not provided a fair hearing prior to his suspension as he was entitled, FAA News has learned.
According to the Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County by Clifton Attorney Charles J. Sciarra Esq.:
Plaintiff Michael Kelly is a Police Sergeant for the Township of Jackson.
Kelly served as Coordinator of the National Highway Traffic Safety Administration Drug Recognition Expert (DRE) Grant for the County of Ocean.
The Ocean County Prosecutor's Office (OCPO) received a tip from the New Jersey State Police alleging misconduct by Kelly in his DRE Grant work. The allegations included that Kelly submitted inaccurate reports regarding his duties as Coordinator of the DRE Grant and that he failed to follow OCPO directives regarding “DRE callouts."
Following an investigation of these allegations, the OCPO notified Jackson Police Chief Matthew Kunz that Kelly was subject to Brady-Giglio designation. This designation majorly restricts his participation in investigations of crimes because the designation requires a prosecutor to disclose all evidence to the defense that could be used to impeach the credibility of the prosecution’s witnesses.
In response, on July 3, 2024, Chief Kunz served Kelly with a Preliminary Notice of Disciplinary Action (“PNDA”), placing him on immediate suspension without pay pending the disposition of the PNDA.
During the OCPO investigation of Kelly giving rise to the Brady-Giglio designation and the resulting disciplinary charges contained in the PNDA, Detective Christopher White and Sergeant David Margentino of the OCPO’s Professional Standards Unit (“PSU”) interviewed Kelly on March 20, 2024 with his counsel present. During the interview, Detective White and Sergeant Margentino confirmed that the investigation was administrative in nature and not a criminal investigation.
Nonetheless, the OCPO superseded the Township in conducting the subject internal affairs investigation.
The OCPO Detective and Sergeant also confirmed that Kelly's statement was a compelled one under New Jersey Attorney General Guidelines. Kelly was therefore obligated to submit to what was an internal affairs interview and answer questions pursuant to his duties as a Police Sergeant under the threat of disciplinary action, including termination of his employment, for failing to do so.
Kelly's counsel also placed on the record that during a conversation he had with Ocean County Assistant Prosecutor Michael Abatemarco, the OCPO took the position that there was purportedly no conflict in the OCPO conducting the administrative investigation. This is notwithstanding that members of the OCPO were involved in and are witnesses to the alleged facts and subject matter giving rise to the investigation.
Kelly pointed this out during his internal affairs interview by identifying specific individuals within the OCPO who have information regarding this matter that exonerates him.
The allegations in the PNDA are without sufficient legal and factual basis. Nonetheless, the PNDA seeks the termination of Kelly's employment and the cessation of his law enforcement career.
The PNDA makes clear that the OCPO’s investigation and its designation of Kelly under Brady-Giglio laid the basis for the Township’s issuance of the PNDA seeking Kelly's termination.
Pursuant to the Appellate Division's recent unpublished ruling in In the Matter of Vazquez et al. & City of Hackensack, “a police officer does have the opportunity to challenge a Brady designation by a prosecutor’s office through the judicial process.”
Accordingly, the complaint asserts that Kelly is "entitled to a full hearing with all requisite testimony and evidence before the Superior Court regarding the Brady-Giglio designation."
The suit further demands an award of attorneys’ fees and costs and such other relief as the Court deems equitable and just.
The Township and Prosecutor's Office have 35 days to answer the complaint.
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