A state appeals court affirmed dismissal of a suit against the Monmouth County Prosecutor’s Office by a former police officer who claimed the office released information about his expunged criminal record.
The officer, referred to only as K.S., had been charged in 1996 with using his position on the Monmouth County Tactical Narcotics Task Force to coerce a woman to have sex with him, the Appellate Division said in its May 17 decision. Judge Jose Fuentes delivered the opinion.
More recently K.S. was the chief of investigations-internal affairs officer and lead supervisory detective at Joint Base McGuire Fort Dix-Lakehurst Police Department.
K.S. later sought to expunge his record of the allegation and succeeded. But when he later investigated a patrolman, identified as Ryan Verrecchio, on allegations of sexual harassment and misuse of a firearm, Verrecchio set about to make K.S.’s record containing the past expunged allegation of sexual coercion public, according to K.S.
The Monmouth County Prosecutor’s Office released his record to Verrecchio’s attorneys, who then disseminated it to news organizations, according to K.S.’s complaint.
K.S. claims the revelations of his past record hurt his career and denied him other job opportunities. He filed a complaint against the MCPO seeking compensatory and punitive damages for the wrongful release of his expunged criminal record.
The trial court granted the MCPO’s motion to dismiss K.S.’s cause of action based on his failure to file a notice of claim within 90 days of its accrual, as required under N.J.S.A. 59:8-8(a) of the Tort Claims Act.
The case was on appeal from the Superior Court, Law Division, Monmouth County.
Named as defendants are Verrecchio, attorney Cheri Cannon, attorney Mathew Tully, the law firm Tully Rinckey, and the Monmouth County Prosecutor’s Office.
Edward Dimon, of Carluccio, Leone, Dimon, Doyle & Sacks in Toms River, who represented K.S., did not return a call.
Andrew Bayer, who recently joined Pashman Stein Walder Hayden in Hackensack, represented Verrecchio and could not be immediately reached for comment.
K.S.’s claims were based on violations of the expungement statute, N.J.S.A. 2C:52-1 to -32.1, the Identity Theft Statute of the Consumer Fraud Act, N.J.S.A. 56:8-164, and damages related to the enforcement of the two statutes.
With respect to his common-law tort claims, K.S. argued the trial court erred in denying his motion to file a late notice of claim because: (1) he filed a motion seeking this relief within one year of the accrual of the claim; and (2) there were extraordinary circumstances under N.J.S.A. 59:8-9 to warrant the relaxation of the 90-day deadline.
The MCPO argued that the trial court correctly dismissed K.S.’s common-law tort claims because he did not file a notice of claim within 90 days of their accrual as required by N.J.S.A. 59:8-8. The MCPO also said K.S. did not present any evidence of extraordinary circumstances to warrant the relaxation of this statutory deadline.
On the statutory claims, the MCPO argued that the Legislature did not create a private cause of action to recover civil damages under the expungement statute, and K.S. did not plead an identity theft claim under the CFA.
“After reviewing the record before us, we agree with the position advanced by the MCPO and affirm,” wrote Fuentes, joined by Appellate Division Judge Ellen Koblitz.
The panel said the trial court correctly dismissed K.S.’s cause of action as a matter of law under Rule 4:6-2(e) relying, in part, on materials outside the four corners of the pleadings, and the factual record.
According to the court, in 1996, K.S. was employed with the Monmouth County Tactical Narcotics Task Force. On March 21, 1996, he was arrested and charged with official misconduct after a woman alleged he used his position to coerce her to have sex with him.
The state dismissed the charges after K.S. was admitted into the Pretrial Intervention Program, according to court documents.
According to K.S.’s testimony, on Jan. 11, 2001, the court entered an order granting his petition to expunge the record related to this charge.
In December 2014, in his role as chief of investigations internal affairs officer, K.S. conducted an internal administrative investigation of Patrolman Verrecchio regarding allegations of sexual harassment and misuse of a firearm.
According to K.S., the allegations against Verrecchio were sustained, and he was disciplined accordingly.
On Nov. 2, 2015, according to court documents, Verrecchio submitted a request to the MCPO under the Open Public Records Act for copies of “any and all records, to include Internal Affairs and or Criminal Investigation records pertaining to [K.S.] of Howell, who was indicted while working as a police officer in Avon from 1995-1996 for official misconduct.”
On Nov. 10, 2015, the MCPO custodian of government records “partially denied” Verrecchio’s request in a form response that stated: “The records requested by you are not being provided because the document or documents are not public records as provided by law, as noted below.”
The custodian attached a form that listed 30 categories that purportedly correlate to a statutory basis to deny access under OPRA, according to court documents. The custodian placed a check mark next to the categories denoted: “criminal investigatory records” and “pension and personnel records.”
However, the MCPO released a copy of a 1996 criminal complaint charging K.S. with second-degree official misconduct.
K.S. alleges that Verrecchio disseminated the information contained in the 1996 criminal complaint to individuals employed with the Joint Base McGuire-Dix-Lakehurst Police Department. He further alleges that Verrecchio’s attorneys Cannon and Tully distributed the information contained in the 1996 criminal complaint to several news organizations and conducted news interviews related to those charges.
K.S. claims defamation, invasion of privacy-false light, invasion of privacy-intrusion on seclusion, and invasion of privacy-publicity of private matters, intentional infliction of emotional distress, and intentional interference with prospective economic advantage.
A paragraph within K.S.’s complaint read: “As a direct and proximate result of defendant’s conduct, [K.S.] has been impaired in his ability to earn a living and has sustained and will continue to sustain loss of income in amounts that will be established at trial.”
“The clear implication of these allegations is to provide a legal basis to seek compensatory and punitive damages against the MCPO, based on the common law torts in Counts I through VI,” Fuentes wrote. “Pursuant to the TCA, ‘no action shall be brought against a public entity … under this act unless the claim upon which it is based shall have been presented’ to the appropriate public entity in a written notice.”
The panel acknowledged the statutory provision in the TCA that allows the late filing of a notice of a claim under limited circumstances in the trial judge’s discretion, if, within one year of the accrual of the tort claim, the claimant shows extraordinary circumstances for failing to file a timely notice of claim.
The appeals court said all of the tort claims accrued on Nov. 10, 2015, when the MCPO custodian of government records under OPRA released K.S.’s expunged records.
K.S. had 90 days, or until Feb. 8, 2016, to file a tort claim notice. K.S. filed on March 15, 2016, and an amended complaint on April 8, 2016.
“K.S. has argued he is not legally required to file such notice because his claim against the MCPO under the expungement statute does not fall within the TCA,” Fuentes wrote. “Plaintiff also argues that the notice provisions of the TCA are inapplicable here because the release of the expunged records involved only a ministerial function by the MCPO custodian of government records.”
According to K.S., the TCA does not provide immunity to public entities for a failure to carry out ministerial duties. K.S. also argues that the notice provision of the TCA is not applicable to his claim for injunctive relief to enforce a court order.
To which the panel wrote: “These arguments lack sufficient merit to warrant discussion in a written opinion.”
“All of the common law claims listed in Counts I through VI are indisputably subject to the TCA,” said the court. “Furthermore, plaintiff’s claims predicated on the expungement statute are not legally cognizable.”