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In Monmouth County Prosecutor’s Office v. Office of the Atty General, et al., the New Jersey Appellate Division affirmed the Office of the Attorney General’s (OAG) denial of the petitioner’s request for representation in a legal action in lieu of prerogative writs filed by a retired deputy police chief. The Superior Court found the respondent’s duty to defend arose from the New Jersey Tort Claims Act (TCA) as he was only charged with defending a state employee to the extent required under N.J.S.A. § 59:10A-1. The TCA mandates a defense only in tort actions seeking damages, and the respondent had discretionary authority in other cases. In this case, the former police chief’s claim did not seek tort damages; therefore, the Appellate Division affirmed the OAG’s discretionary denial of the petitioner’s request for representation.

The petitioner, Township of Marlboro Police Department, received a complaint regarding its Deputy Police Chief, Frederick Reck. As mandated by the Internal Affairs Policies and Procedures (“IAPP”) and the Attorney General’s directive, the petitioner initiated an internal investigation into the allegations, and two were sustained against Reck. He then elected to retire in lieu of proceeding through a disciplinary hearing.

Reck’s written agreement memorializing retirement included a provision whereby he retained the right to challenge findings made by the petitioner relating to the investigation. In June of 2023, Reck’s counsel requested a copy of the formal procedures by which he could challenge the report and a copy of the petitioner’s complete investigation report. The petitioner responded that Reck was precluded from challenging its findings through the administrative process post-retirement pursuant to Section I.E. of Directive 2019-6.

Reck then filed an action in lieu of prerogative writs in the Superior Court, Law Division, Monmouth County, against the petitioner, requesting de novo review of the findings in the report. Specifically, he alleged the petitioner improperly sustained two allegations charged against him and that the petitioner never identified the particular administrative process by which he could challenge the findings of the report as demanded.

The petitioner forwarded a copy of Reck’s complaint to the OAG with a letter requesting representation in accordance with Wright v. State, 169 N.J. 422 (2001). The OAG denied the petitioner’s request for representation, positing the duty only obligates the OAG to provide defense and indemnification to employees when they are being sued in civil actions seeking damages for conduct that is tortious and/or violative of 42 U.S.C. § 1983. As a result of Reck’s complaint, self-titled as an action in lieu of prerogative writs, sought only non-statutory equitable remedies and did not assert any claims for monetary damages, the OAG determined it was not required to provide a defense.

The Appellate Division found the OAG is only charged with defending a state employee to the extent required under N.J.S.A. § 59:10A-1, which provides that “the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment.” However, the court found the OAG’s duty to defend solely arises from the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 to -12-3. The legislative mandate only applies in the context of civil actions seeking damages for tortious conduct. Chasin v. Montclair State Univ., 159 N.J. 418, 431 (1999). 

It’s important to be aware that the decision to represent an employee in any action not arising under the TCA falls within the discretion of the OAG. Specifically, N.J.S.A. 59:10A-3 is characterized as “a catch-all” provision which permits the OAG to “cover actions not arising under the [TCA], including civil actions not seeking damages, as well as criminal actions.” However, the OAG is only charged with defending a state employee to the extent required under N.J.S.A. 59:10A-1. See Helduser v. Kimmelman, 191 N.J. Super. 493, 508 (App. Div. 1983) (emphasis added). As such, the OAG is not mandated to defend in cases other than those which fall under the TCA. 

As the action in lieu of prerogative writs did not seek damages for tortious conduct, the Appellate Division affirmed the OAG’s discretionary denial of the petitioner’s request for representation. 

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