Rosko v. Pagano

• Decision Date: 14 March 1979
• Docket Number: Civ. No. 79-302.
• Parties: John S. ROSKO, Plaintiff, v. Clinton L. PAGANO, Individually and as Superintendent of the New Jersey Division of State Police, Defendant.
• Court: U.S. District Court — District of New Jersey

466 F. Supp. 1364

John S. ROSKO, Plaintiff, v. Clinton L. PAGANO, Individually and as Superintendent of the New Jersey Division of State Police, Defendant.

Civ. No. 79-302.

United States District Court, D. New Jersey.

March 14, 1979.

Mason, Griffin & Pierson, Princeton, N. J. by Donald M. Altman, Russell W. Annich, Jr., Princeton, N. J., for plaintiff.

John J. Degnan, Atty. Gen. of N. J. by Michael R. Cole, Deputy Atty. Gen., Trenton, N. J., for defendant.

OPINION

CLARKSON S. FISHER, Chief Judge.

The extent to which a federal court may intrude into the internal disciplinary functions of the New Jersey Division of State Police (the Division) by way of the Civil Rights Act is the keynote of this case. The trial of this action on the merits was advanced and consolidated with the hearing on the application for preliminary injunctive relief, pursuant to Fed.R.Civ.P. 65(a)(2). The following are the findings of fact and conclusions of law mandated by Fed.R.Civ.P. 52(a).

The Division exists within the Department of Law and Public Safety, which is under the control of the Attorney General, and part of the Executive Branch of New Jersey Government. N.J.S.A. 52:17B-1 et seq. Defendant is Superintendent of the Division and holds the rank of Colonel. Plaintiff is a Lieutenant of State Police with twenty-six years service. On June 15, 1978, pursuant to Article II, § 2 of State Police Rules and Regulations, (Regs.), plaintiff was suspended without pay or benefits pending the filing of administrative disciplinary charges against him. On August 3, 1978, formal charges were preferred against Rosko to which he pleaded not guilty. Those charges¹ allege in substance that he wrongfully obtained and distributed a copy of the background investigation of Joseph Lordi (the Report), which the State Police had conducted in mid-1977 at the direction of the Attorney General.

The Governor had ordered the Attorney General to make an inquiry into Lordi's fitness to serve as Chairman of the Casino Control Committee. See N.J.S.A. 5:12-52(d) (1978 Supp.)² Following the investigation, the Governor announced the nomination of Lordi to chair the Committee.

As the State Senate was obliged to advise and consent with respect to the nomination, the Senate Judiciary Committee held hearings in July 1977. Senator Parker, a member of the Judiciary Committee, explained that although they were aware of the existence of the Report, members of the Judiciary Committee were not permitted to see that document.³ Except for a limited number of authorized Division personnel, only the Attorney General and the Governor were supposed to have access to the Report.

During the Lordi hearings, defendant was questioned about the contents of the Report. Pagano had not been summoned to the hearings but just happened by in connection with another inquiry. In response to Parker's questions, defendant told the Judiciary Committee that there was nothing in the Report which, in his judgment, would disqualify Lordi. The nomination eventually was reported out of Committee and Lordi was confirmed by the Senate on July 25, 1977.

Subsequently Senator Parker became concerned with the accuracy of Pagano's testimony before the Judiciary Committee, because of the news media's attention to the Lordi nomination. Especially important in this regard was an article authored by John McLaughlin which appeared in the October 21, 1977 issue of the New York Daily News. The McLaughlin piece described certain aspects of the Lordi Report in a detail which indicated intimate knowledge of its contents, and inferentially impugned the propriety of Lordi holding the sensitive post. I have not read the Report, but defendant concedes the fundamental accuracy of the media treatment of it. McLaughlin's article piqued the curiosity of others besides Senator Parker. Shortly after the story appeared, the State Police undertook an intensive investigation into the source of the leak of the Report. It is as a result of that investigation, which employed the State Grand Jury and which could have led to criminal charges, that plaintiff stands accused before the Division.⁴

In a proceeding before Honorable George Y. Schoch, Assignment Judge of Mercer County, Rosko testified under oath that he secured a copy of the Lordi Report from a fellow officer sometime in July or August of 1977. Plaintiff also admitted that he gave a copy of the Report to State Senator Raymond Bateman on September 7, 1977, in a meeting at Bateman's home. Senator Bateman was then the Republican gubernatorial candidate, and was also a member of the Senate Judiciary Committee. Rosko did not request and was not promised any political favor by Bateman in exchange for the Report; in fact, at that time the Senator did not even know Rosko's name. The Report eventually made its way to the media through the Bateman organization, without Bateman's knowledge.

Senator Parker insisted that if he had been made aware at the Judiciary Committee hearing of the information which the McLaughlin article said the Lordi Report contained, he would have voted against the nomination. One could certainly speculate that full disclosure of the contents of the Report may have had similar effects on enough Judiciary Committee members so as to defeat Lordi's nomination. Senator Parker's vociferous criticism of Pagano's alleged failure to fully explain the Report to the Judiciary Committee was reported in the newspapers on at least two separate occasions. In the October 27, 1977 issue of the Trenton Times, Parker is reported to have claimed that Pagano deliberately misled the Judiciary Committee. In the December 12, 1978 issue of the Trenton Times, Parker is said to have stated that when he questioned defendant about Lordi, defendant failed to explain the substance of the Report. Parker testified as to the truth of his statements and that he in fact made them. Pagano was aware of the media attention given these unfavorable comments.

It is appropriate at this point to outline the operation of a State Police General Disciplinary Hearing, which plaintiff would have undergone on February 12, 1979 but for temporary restraining orders entered February 5. The Division member charged is entitled to legal counsel; he may call witnesses in his behalf and cross examine opposition witnesses; and he can secure Division records relevant to the charges at least five days in advance of the hearing. The Superintendent or his designee, who must be a Commissioned Officer of higher rank than the trooper charged, sits as Hearing Officer in the matter. All proceedings are to be tape recorded, unless the member makes arrangements to bear the cost of a certified shorthand reporter. Although hearings are generally closed, the parties have agreed that the hearing in Rosko's case may be open to the public.

The rules of evidence do not apply; instead, all relevant evidence is admissible. The Hearing Officer should recognize the rules of privilege, and may take judicial notice of certain facts. The parties have the right to examine and contest the material to be noticed.

When the Hearing Officer is the Superintendent's designee, he shall file his recommended report and decision containing findings of fact, conclusions of law, and suggested discipline within forty-five days of conclusion of the hearing. The parties then have twenty days to file written objections to the recommendations, or may request permission to present argument to the Superintendent. Within forty-five days after expiration of the twenty day period, or forty-five days after conclusion of the hearing, if it is conducted by the Superintendent, the Superintendent shall render final judgment in the matter. The decision must include findings of fact, conclusions of law, and the discipline to be imposed. Possible sanctions range from reduction in rank or grade to suspension from duty with forfeiture of pay and benefits to outright dismissal.

Although defendant appointed Lieutenant Colonel Quinn as Hearing Officer in this matter, there is a question whether Quinn's impending retirement will allow him to serve. Quinn has ruled that he will not consider issues of constitutional dimension in the hearing; however, much of Rosko's defense is based on the First Amendment. N.J.Court Rule 2:2-4 allows interlocutory appeals from the Hearing Officer's interim rulings, while R. 2:2-3(a) grants Rosko the right to appeal to the Superior Court, Appellate Division, from an adverse final decision.

A story appeared in the January 5, 1979 issue of the Newark Star Ledger, in which Pagano is quoted as saying that plaintiff's reason for giving Bateman the Report was to

help him (Rosko) get a political leg up. He hoped to get an edge where no one has a right to.

The reporter who wrote the story testified to the accuracy of the quotation. Defendant admitted that the article accurately reflected a portion of his conversation with the reporter, but claimed that the quote is merely a paraphrase. A key element of Rosko's defense is that he acted in good faith and mainly in the public interest in attempting to bring to the attention of the Judiciary Committee all of the facts bearing on the propriety of the Lordi appointment. Defendant testified that he has no preconceived notion of either plaintiff's total motivation for dissemination, or of Rosko's guilt or innocence. Since the fact of dissemination has been admitted, the viability of Rosko's good faith defense as a factor mitigating punishment is crucial. Plaintiff is naturally concerned that the person who will make the final decision in his disciplinary matter has publicly expressed an opinion adverse to a critical part of his defense prior to commencement of the hearing.

Plaintiff has suggested that the investigation into the source of the leak and the subsequent disciplinary proceeding were brought to harass him, and in retaliation for his exercise of First Amendment rights. Despite Senator...