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Whistle-blower suits against the Bergen County Prosecutor’s Office in New Jersey are starting to cost real money. Whose money is still an open question. On Tuesday, a jury in Hackensack, N.J., awarded $1.47 million to Robert Hennessey, who claimed that former acting prosecutor Charles Buckley forced him out of an assistant’s job in 1995 for leading an investigation into wrongdoing by other subordinates. The jury found that Hennessey was constructively discharged for whistle-blowing activities and awarded him $467,000 in back pay, $205,000 in front pay and $300,000 for pain and suffering. He also won $500,000 in punitive damages. If the awards hold up, those sums will be appetizers. The successful plaintiff’s lawyer, Neil Mullin of Montclair, N.J.’s Smith Mullin, says prejudgment interest will be $268,000. He also says he will ask for fees of $500,000 to $600,000, which includes a 50 percent enhancement under the fee-switching provisions of the Conscientious Employee Protection Act. Included in the application will be the cost of appellate practice that was required to keep the case alive before the trial. Mullin says he would have settled the case for $750,000 a couple of years ago. Then there are the defense fees. Thom Ammirato, a spokesman for Bergen County Executive William Schuber, says the county has already authorized $700,000 in payments to the defense counsel in Hennessey’s suit and two companion cases. Hennessey was a seven-year veteran of the prosecutor’s office and was serving as its third-highest officer when Buckley, then a deputy attorney general, was appointed acting prosecutor to replace John Fahy, who went into private practice. According to the plaintiff’s evidence at trial, Fahy had asked Hennessey to head an inquiry into whether two high-ranking investigators in the office had used their county positions to lease cars at rates unavailable to the general public. The two investigators eventually were disciplined, but they got their jobs back under Buckley, and Hennessey claimed he was subject to retaliation — including demotion — for complaining about the handling of the probe and for giving information to the state. By votes of 6-0, the jury found that Hennessey reasonably believed that Buckley had violated a law or rule, that Hennessey had objected and that he was the target of adverse action. Mullin also was successful in convincing the jury by a 6-0 vote that although Hennessey wasn’t fired, the demotion and other action against him amounted to a constructive discharge. The vote on damages was 5-1, and at this point the lawyers in the case don’t know what figure the dissenter would have preferred. Buckley didn’t return a telephone call. An important question for the county now is who will pay the award. For years, though it has funded the defense costs, the county has argued that the state is responsible because Buckley was an acting prosecutor brought in by the state. Indeed, all the assistant prosecutors in the office were sworn in as deputy attorneys general, county officials have pointed out. Chuck Davis, a spokesman for the state Attorney General’s Office, says it’s the state’s position that the county is responsible for defense costs and the judgment. That’s also the view a state appeals court took in 1999. In a ruling in a companion case to Hennessey’s, DeLisa v. Bergen County, 326 N.J. Super. 32, a three-judge appellate panel ruled that the county is responsible for the defense of claims arising from administrative acts by prosecutors, even when they hold dual county and state positions. The state supreme court ruled on another issue raised by DeLisa, but not on the who-pays question. The lead defense counsel in the Hennessey case, William Lundsten, a partner in Teaneck, N.J.’s DeCotiis, Fitzpatrick, Gluck, Hayden & Cole, says he will seek a new trial but that he is not involved in the dispute over whether the state must indemnify the county. Whatever the defense costs were — he says he doesn’t know the exact figure — his firm deserved them, Lundsten says. He says that all the cases against Buckley’s office have taken five or six years, that they have resulted in two trips to the Appellate Division and one to the state supreme court and that part of the litigation is in the federal courts, too. “I think the fees are reasonable,” Lundsten says. In the case that went to the state supreme court, former investigator Peter DeLisa claims he was fired in March 1996 for being a witness in the internal probe that also formed the backdrop of Hennessey’s whistle-blower claims. The county has argued that he was fired for other reasons, including giving of false testimony in a criminal trial. DeLisa’s lawyer, Kevin Kiernan of Montclair’s McDonough, Kiernan & Campbell, says the trial will be held in a few weeks. Also pending is the trial of a claim by another alleged target of retaliation, former chief of detectives, Mark Baldassare. Besides his CEPA claim in Bergen County, he is pursuing a civil rights claim in federal court. According to evidence gathered by Baldassare’s attorneys, Linda Kenney and Nancy Martin of Red Bank’s Kenney & Martin, Baldassare was the officer who first reported the allegations of wrongdoing and assisted in the investigation. He was later demoted and fired.

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