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Acting county prosecutors, though technically state officials, must be defended by the county when they’re sued for discriminatory employment practices, an appeals court ruled on Feb. 20. The Appellate Division, in Embrey v. State of New Jersey, A-3948-02, overturned a lower court’s ruling that ordered the state to defend a bias suit by black and Hispanic employees. Superior Court Judge Thomas Brown had found that Acting Prosecutor Donald Campolo was an assistant attorney general taking orders from Trenton and the state’s exercise of authority obligated it to provide a defense. In fact, the state director of criminal justice had gone so far as to make personnel assignments in the office. Brown thus treated the case as an exception to Wright v. State, 169 N.J. 422 (2001). There, the state Supreme Court ruled that the state must indemnify and defend county prosecutors for suits arising out of their exercise of law enforcement functions, while suits arising from their administrative and personnel decisions remain the county’s responsibility. On appeal, Judges Stephen Skillman, Harold Wells III and Clarkson Fisher Jr. rejected using the degree of state control over a county prosecutor’s office as the test for whether there is a duty to defend. The judges cited DeLisa v. County of Bergen, 326 N.J. Super. 32, a 1999 appeals court case that found no state duty to defend and indemnify a retaliatory discharge case against Charles Buckley, a deputy attorney general serving as acting Bergen County prosecutor. Though the unpublished appellate ruling in Embrey brings Essex County back into the suit as a defendant, it does not let the state out completely. The appellate court called it “premature” to dismiss the state though it left open that possibility, depending on what discovery turns up with regard to the role played by Campolo from June 28 to September 1999, when he described himself in a certification as a “monitor” for the attorney general over the office’s fiscal and personnel actions. Those months overlapped with the period of one of the alleged acts of discrimination, the appeals court noted. The court also wanted to keep the state in the case based on allegations, “unclear from the face of the plaintiffs’ rather loosely drafted complaint,” that questioned whether others from the Division of Criminal Justice took part in any alleged discrimination and retaliation. Essex County Counsel Francis Giantomasi says the county remains in “a special circumstance situation” because “we still have an acting prosecutor and the attorney general continues to exercise potentially greater control over our prosecutor’s office.” “I would like to see a prosecutor confirmed,” he adds. “The line between Wright and this case would be more defined and not as gray as I think it still is.” Giantomasi has not decided whether to appeal the ruling. The plaintiffs include three current assistant prosecutors – Grace Esposito, Lewis Powell and Richard Williams; a former prosecutor, Shahidah Sharif; and five other employees – Eileen Embrey, Angelo Fabregas, Eddie Hall, Cheryl Moses and Charles Williams. They sued under federal civil rights law, the federal Family and Medical Leave Act and the Conscientious Employee Protection Act, claiming discrimination and retaliation that took place between April 1, 1999, and May 2, 2002. The Attorney General’s Office, through spokesman Chuck Davis, declines comment. Campolo served as acting prosecutor until he was replaced by Paula Dow, a former assistant U.S. attorney who was nominated for the spot last September by Gov. James McGreevey but is facing opposition from three local senators: Nia Gill, Sharpe James and Ronald Rice.

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