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Bar to Holding Public Office

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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