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The state Supreme Court ruled that the Conscientious Employee Protection Act should be liberally read to include public employees who testify to law enforcement officials about alleged wrongdoing by co-workers. The Court, in DeLisa v. County of Bergen, et al., A-71-99 [digested in this issue at page 62], reinstated a suit lodged against the Bergen County Prosecutor’s Office and the county itself by a former investigator, Peter DeLisa. The investigator claimed he was fired in 1995 because he assisted the state attorney general with a criminal probe. That probe — into whether Deputy Chief of Investigations Ed Denning and Lieut. Michael Carlino used their county positions to lease cars at a rate that would not be available to the average person — began under the tenure of Prosecutor John Fahy. But DeLisa was fired shortly after Fahy resigned to go into private practice and Charles Buckley was named acting prosecutor. The attorney general declined to prosecute Denning and Carlino, but administrative charges were filed against the two and they were suspended. Denning and Carlino sued the county and later settled for $125,000 each. Buckley fired DeLisa, allegedly for providing false testimony in another criminal matter. Bergen County officials moved to have DeLisa’s suit dismissed on summary judgment and succeeded. The Appellate Division affirmed, based on an earlier ruling, Higgins v. Pascack Valley Hospital, 307 N.J. Super. 227 (1998). Higgins held that absent employer complicity, CEPA does not protect an employee who complains about the misconduct of co-employees. The Supreme Court overruled that decision last year, Higgins, 158 N.J. 408 (1999), saying that as long as a reasonable basis exists for a complaint about misconduct, whether of the employer or of a co-employee, the complaining employee should not be exposed to retaliation by the employer. It may be a short-lived victory for DeLisa, however. In another recent ruling, Golden v. County of Union, 163 N.J. 420 (2000), the justices held that every employee of a county prosecutor is an at-will employee who can be fired without cause — so long as no other pertinent law is violated. The Court noted in last week’s ruling that if DeLisa cannot prove that Buckley violated his rights under CEPA, the trial court should find that DeLisa’s firing was proper. J.S. Lee Cohen, the lawyer representing the prosecutor’s office, said he was surprised at the expansiveness of the ruling. “We believed the statute said what it said” in that CEPA does not protect employees who complain about co-employees, said Cohen, a partner at Teaneck’s DeCotiis, FitzPatrick, Gluck, Hayden & Cole. “Obviously, the Court has made a different policy choice.” He warns, though, that the ruling may prove expensive for prosecutors who fire employees because it now will be more difficult to have meritless suits dismissed at the summary judgment stage. Instead, said Cohen, it is likely that most will go to trial over issues of fact. “It’s going to be enormously expensive for prosecutors because everyone who’s fired is going to become a whistle-blower,” he said. “Having lawsuits dismissed on summary judgment is going to be very difficult.” DeLisa’s lawyer, Kevin Kiernan, a partner at Montclair’s McDonough, Kiernan & Campbell, was away from his office last week and unavailable for comment.

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