Failure to rehire officer based on Brady/Giglio upheld by court

NJ State PBA Legal Corner 

By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq. 

In December 2019, the attorney general issued Law Enforcement Directive 2019-6 requiring county prosecutors to adopt policies to comply with Brady/Giglio principles. The AG’s directive did not break any new legal ground, but it did signal a renewed interest in adopting uniform procedures for compliance with Brady/Giglio throughout the state.

One of the NJ State PBA’s concerns was whether a decision not to allow an officer to testify due to credibility issues arising out of Brady/Giglio factors would negatively affect an officer’s employment. A recent decision from the appellate division upheld a municipality’s decision not to rehire an officer from the regular reemployment list because it was determined that the officer could not testify based on whether the prosecutor determined credibility problems due to the officer’s prior record.

By way of background, two U.S. Supreme Court decisions, Brady v. Maryland and Giglio v. United States, issued in 1963 and 1972, respectively, established the principle that prosecutors are required to turn over evidence to defense attorneys which might be favorable to the defendant, including evidence that might affect a testifying officer’s credibility. This principle was later adopted by the New Jersey Supreme Court.

In E.A. v. Ocean County Prosecutor et al., the appellate division affirmed a municipality’s decision not to rehire an officer because of his
inability to perform an essential function of his job. This resulted when it was determined that the officer could not testify due to credibility issues which arose out of the Brady/Giglio guidelines. The facts are as follows:

The officer had a final restraining order (FRO) issued against him for harassment and assault. The FRO was based on a non-duty
related domestic violence incident involving the officer and his wife. It prohibited him from possessing firearms, weapons and ammunition. The FRO spurred an internal affairs investigation and, subsequently, a disciplinary hearing. The municipality charged the officer with an inability to perform his duties due to the FRO and terminated him. The officer and the township eventually reached a settlement agreement. The agreement stated that the officer would resign in good standing but, if the FRO was removed within a year, he would be placed on the regular reemployment list for the first available position.

The FRO was dismissed within the one-year time frame. The officer was placed on the reemployment list, and he indicated his interest in a position with the township. However, several months later, the prosecutor’s office objected and advised the township that the officer should not be rehired. The prosecutor’s objection was based upon the Brady/Giglio guidelines. In this instance, the prosecutor would be required to reveal the officer’s past FRO. In other words, the prosecutor’s office believed that the FRO would negatively affect the officer’s credibility and damage any case in which he would be called as a witness.

Due to the prosecutor’s concerns, the township conducted a background investigation and ultimately requested that the officer’s name be removed from the reemployment list. The township indicated that the FRO would compromise the officer’s credibility to a jury and that acting as a credible witness is a part of the officer’s duties and responsibilities. With his credibility as a witness in question, the township believed the officer could not perform his job responsibilities and, therefore, was not eligible for reemployment. On appeal, the NJ Civil Service Commission (CSC) and the appellate division agreed.

Among other arguments, the officer contended that his removal from the list was a violation of his settlement agreement with the township. The court rejected this argument. According to the court, the settlement agreement only required that he be placed on the reemployment list and not that he be rehired from that list. The court stated that placement on the eligibility list “does not grant the applicant the right to be employed.” The regular reemployment list only grants “a right to be considered for appointment.”

The court found that the township did consider him but still had the discretion to ultimately appoint him from that list or not. The court concluded that the CSC’s determination that that officer was not suitable for reemployment based on the Brady/Giglio guidelines was not arbitrary or capricious.

There are several takeaways from this case. A determination that an officer will not be able to testify credibly based on compliance with the Brady/Giglio guidelines may result in discipline up to and including termination. This case cautions that an officer’s role as a potential witness, and as a credible witness, is an important part of an officer’s duties and responsibilities.

Here, the mere existence of the past FRO and its impact on the officer’s ability to perform his job were sufficient reasons for the officer to be found ineligible for reemployment. Any prior incidents about an officer that a prosecutor would be required to reveal due to compliance with the Brady/Giglio guidelines, even if based on off-duty incidents, may influence the officer’s credibility before a jury and may affect the officer’s employment.

This, alone, could have negative employment consequences if the officer’s employer or the prosecutor believes that the officer can no longer credibly testify as a witness for the prosecution. Apart from the Brady/Giglio considerations, the case also highlights that placement on a regular reemployment list does not guarantee a job, only consideration for an opening. The employer may still determine that the officer is not eligible.

We should also note that the opinion is an unpublished decision, which means that it generally has very limited precedential effect. However, it is important to keep in mind the takeaways from the case because these issues will undoubtedly arise in the future. Officers who may have Brady/Giglio issues should discuss these issues with experienced counsel, including their LPP attorneys, if they have been charged based upon those issues or if there are any other negative employment consequences resulting from compliance with the guidelines.