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Bar to Holding Public Office

October 29, 2010 Leave a comment

Expungement of Conviction Does Not Remove Bar to Holding Public Office

By David Gialanella

New Jersey Law Journal

October 27, 2010

Expunging a conviction does not wipe away the permanent bar on public-sector employment that arose from the offense, the state Supreme Court ruled Wednesday.

The decision, In the Matter of the Expungement Petition of D.H., A-82-09, means that a one-time detective convicted of misusing law enforcement resources remains perpetually ineligible for public office, though her sole offense occurred a decade ago and her record is otherwise untarnished.

The Court held that “a mandatory order of permanent forfeiture of public employment must be severed from — and preserved from the expungement of — the conviction that originally triggered the order of forfeiture,” adding that the state expungement statute, is “not intended to override” such an order.

In June 1999, D.H., a Monmouth County Prosecutor’s Office detective, used the computer-based Criminal Justice Information System to perform an unauthorized background check requested by the security executive at a supermarket chain — and a former law enforcement employee — who wanted background information on a prospective employee.

In an interview shortly thereafter with representatives from her office and the state police, D.H., a 14-year office veteran, admitted to conducting the electronic inquiries, though use of CJIS is prohibited when not part of an active criminal investigation.

Charged months later with a disorderly persons offense in connection with the incident, D.H. pleaded guilty and consented to an order of forfeiture of public employment. Monmouth County Judge Lawrence Lawson accepted the plea agreement, and — in light of the forfeiture and her lack of criminal record — did not sentence D.H. to any jail or probation term, and did not impose fines.

Following an unsuccessful petition for post-conviction relief in 2002 before Lawson, D.H. filed a petition to expunge her conviction in 2008. The state opposed it but Monmouth County Superior Court Judge Edward Neafsey said she was entitled to it. He further held that forfeiture of public office was a collateral consequence of the conviction and thus should be counteracted by the expungement order. A two-judge Appellate Division panel affirmed.

Reversing, the Court held that while D.H.’s expungement was properly granted, it cannot nullify the corresponding forfeiture order or the effectiveness of its driving statute, which was triggered when D.H. was convicted of an offense that “touched” her public position. The statute’s language providing for expungement “unless otherwise provided by law” opens the door for the forfeiture statute to exempt its reach, Justice Roberto Rivera-Soto explained.

“Under that reasoning and closely following the terms of the expungement statute itself, the entry of an order of expungement should have no effect — either direct, collateral or preclusive — on a separate mandatory order of forfeiture of public employment,” Rivera-Soto wrote for the five-member majority.

“We so conclude because finding this common ground between the expungement statute and the forfeiture of public employment statute gives full expression to the policies underlying both,” he added.

Also, because disqualified public workers have another remedy — subsection 2(e) of the forfeiture statute provides a “relief valve,” stating that any such disqualification from public office can be waived by the court “upon application of the county prosecutor or the Attorney General and for good cause shown” — there is no need to expand the expungement statute’s reach, Rivera-Soto said.

The state had additionally argued that the forfeiture order must be enforced independently of the statute, as a provision of D.H.’s 1999 plea agreement, though the Court did not provide a ruling on that issue.

In a separate opinion, Justice Virginia Long concurred in part and dissented in part, agreeing that the expungement order was properly entered but challenging that the forfeiture order “survived” the expungement. Long argued that the two are invariably linked, and when the conviction is treated as if it never occurred, “the forfeiture falls of its own weight.”

Appellate Division Judge Edwin Stern, temporarily assigned to the Supreme Court, did not participate in the opinion.

First Assistant Monmouth County Prosecutor Peter Warshaw says the decision is “entirely consistent with public policy.”

“The Legislature clearly intended for the forfeiture to be permanent if the offense” related to the public office,” Warshaw says.

Robert Donaher of Walder, Hayden & Brogan in Roseland, D.H.’s counsel, says his client “had no practical plans to seek public employment” that prompted her expungement petition, and considers the matter “a victory” insofar as the expungement itself was upheld.

The state attorney general appeared as amicus. Spokesman Peter Aseltine said the decision “supports our ability in New Jersey to maintain a high standard for those who hold public office.”

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Categories: Law

Civil Rights Agency Says EMT Worker Was Probably Sexually Harassed

October 29, 2010 Leave a comment

Civil Rights Agency Says EMT Worker Was Probably Sexually Harassed

By David Gialanella

New Jersey Law Journal

October 28, 2010

A rescue-squad technician was probably subjected to sexual harassment by her superiors and fired as a result of her objection, the state’s civil rights agency said Thursday.

The Division on Civil Rights said it had enough evidence for a finding of probable cause that the Avenel-Colonia First Aid Squad and two senior officers for mistreated the female recruit.

“A particularly troubling aspect of this case is the apparent lack of recourse for employees who felt harassed,” Division Director Chinh Le said in announcing the decision. “The leaders to whom such conduct would normally be reported were the ones allegedly engaged in the harassing conduct.”

The conduct, if found true, would mean violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, possibly leading to compensatory and injunctive relief.

Jennifer Braun of South Amboy, began working at the squad as a paid emergency medical technician in December 2008, not long after graduating from high school. Braun alleged that during her first month on the job, her supervisors were helpful and the work experience was satisfactory.

After that, the downtime conversation turned more and more lewd. Captain Carmen Parisio and Assistant Captain Wayne Tasaki badgered her with sexually suggestive questions and comments, which continued until her dismissal on April 12, 2009, she claimed.

Braun alleged during a fact-finding conference that Parisio and Tasaki asked questions about her sexual preferences, the nature of her physical relationship with her boyfriend and her breast size.

In one incident, while in a darkened bunk room on an overnight shift, Tasaki made a remark to Braun about the size of his genitals, Braun claimed.

In another incident, Parisio, in Braun’s presence, called someone he said was an ex-girlfriend, activated his phone’s speaker, asked questions about his sexual prowess to the person on the other line and encouraged Braun to ask him questions about his sexual techniques. Braun told Parisio she was not interested in his private life, according to Le. Braun used her cell phone to make an audio recording of the exchange, which she played for the investigator.

According to the DCR findings, Braun was offended by the remarks but often ignored them or verbally brushed them off, and she was not aware of anyone to whom she could report the incidents, because Parisio and Tasaki — members of the squad’s executive board — were her supervisors.

Parisio and Tasaki denied any sexual harassment took place and asserted that Braun’s termination stemmed from a pair of three-month-old incident reports. One cited her for being unable to find an address in a map book on an emergency call. The other said she used deficient lifting techniques when handling a stretcher. Parisio said he had to verbally reprimand Braun on at least two other occasions.

Six former squad employees interviewed during the conference confirmed that sexually suggestive talk was the norm with Parisio and Tasaki, and a number of employees also said that the types of transgressions for which Braun was cited generally would not lead to disciplinary action, the DCR said.

A finding of probable cause means the state has concluded its preliminary investigation and has determined there is sufficient evidence to support a reasonable suspicion that the LAD was violated.

The parties will be scheduled for a meeting before a conciliator in an attempt to reach a settlement. If they reach no accord, the matter will be referred to an administrative law judge. The judge’s decision is subject to review by Le and then is appealable to the Appellate Division.

Statutorily, the squad, Parisio and Tasaki each could be subject to fines of up to $10,000 as first-time violators of the antidiscrimination law.

Le says he is not aware of the Avenel-Colonia First Aid Squad having any prior Law Against Discrimination violations.

The squad is no longer in operation: Earlier this month, the Woodbridge Township Council voted to amend the first-aid districting ordinance, which would eliminate the unit.

Lee Moore, spokesman for the Attorney General’s Office, says the closing of the squad would not hinder the conciliation process.

Lavinia Lee Mears of Stein, McGuire, Pantages & Gigl in Livingston, who represents the squad, declines comment.

Categories: Civil Rights, Law, Litigation