Summary Judgment Favors Wildwood, Top Officers; DeMarzo Plans Appeal

COURT HOUSE – Superior Court Judge J. Christopher Gibson issued a summary judgment Jan. 24 in favor of a group of defendants that include the City of Wildwood, former Police Chief Joseph A. Fisher, then-Capt. (now Chief) Stephen Long, Capt. David Deaton, Lt. Robert Regalbuto, Lt. Kevin McLaughlin, Mayor Ernie Troiano, Jr. and former Commissioner Kathy Breusss. The plaintiff was former Mayor Gary S. DeMarzo.
A summary judgment is one that a judge issues based only on what he determines to be the law. In a summary judgment “there is no genuine issue as to any material fact” and the party who makes the motion for such judgment is entitled to such as a “matter of law” alone. In other words there are no important facts in dispute. So the judge takes the facts from the written record presented to him and then applies the relevant law.
The legal origin of this case occurred June 7, 2011 but the factual genesis goes back to 2005. Then a veteran police officer, DeMarzo was investigating what he believed was an abandoned vehicle. While looking for contraband, DeMarzo entered the vehicle without obtaining a warrant. In his opinion the judge states, “The vehicle was owned by the son-in-law of Wildwood Commissioner Kathy Breuss. Ms. Breuss complained and plaintiff received a written admonition.”
In addition, DeMarzo was given a 90-day suspension which he appealed. Ultimately, the Civil Service Commission ruled DeMarzo’s suspension “was justified as his conduct during Mr. Dennis Patterson’s arrest was unprofessional and inappropriate.“ The suspension was reduced to 60 days. DeMarzo alleged that his suspension was retaliation because of the relationship of Patterson to the commissioner. He also raised the issue of fairness in his treatment as opposed to the treatment of Regalbuto who was accused of allegedly beating a double handcuffed defendant and received no disciplinary consequences.
DeMarzo objected to what he viewed as a double standard by the department doing this and demanded the video of the beating incident be put into evidence. He was denied. DeMarzo filed suit under the Conscientious Employee Protection Act (CEPA) in 2011.
The judge found against him as to all defendants based on a motion for summary judgment. (That means without any additional evidentiary hearing on the facts.) The judge ruled that the extant record contained enough of a factual basis for him to make a ruling when presented with a motion for summary judgment. The judge relied on a common law equitable remedy called collateral estoppel.
“Plaintiff is collaterally stopped from re-litigating the issue of retaliation under CEPA due to previous adjudications as part of his departmental complaint process.” DeMarzo had raised the issue of feeling intimidated by Breuss’ phone call to him and his superiors and he alleges that they engaged in retaliatory actions against him including but not limited to the suspension. He brought this up at two administrative law-type hearings. The court ruled he cannot bring it up again as it already had a hearing by a trier of fact.
There were no new facts to consider and other tribunals had already made a determination on the facts presented. In this case it was part of DeMarzo’s “departmental complaint process.” In other words it is the court’s opinion that the plaintiff had a “full and fair opportunity for litigation of the (retaliation) issue.”
DeMarzo contends that by being denied access to the “Regalbuto Tape” he was not able to present a full defense of selective enforcement because he did not have access to the relevant evidence. The judge also found that the plaintiff “has not demonstrated a prima facie claim under CEPA.”
The court said he did not perform a whistle blowing activity as described in the statute or show that a law or regulation as listed in the CEPA law had been broken. The judge also indicates that even if there were instances of retaliation they did not rise to an objectively serious level under the CEPA requirements and plaintiff had not demonstrated a “causal link” between his whistle blowing and the retaliatory conduct.
The court said that the central issue claimed was the telephone call of Breuss “concerning the 2004 motor vehicle invasion incident.” While finding that “Commissioner Breuss conduct may have been inappropriate it did “not violate a clear mandate of public policy interfering with the official duties of police officers,” as is required under CEPA.
The court concludes this matter saying it “is satisfied the issue of retaliation was sufficiently litigated to trigger the application of collateral estoppel precluding the instant CEPA action.” Since the plaintiff, DeMarzo, had the burden of proof and the judge did not think he had met the complaint was dismissed without anyone going to trial.
DeMarzo’s side said they plan to appeal.
To contact Helen McCaffrey, email hmccaffrey@cmcherald.com.
For the Herald’s previous coverage, go to:
– DeMarzo’s Reaction to Court of Appeal Opinion: http://goo.gl/N6dNn6
– Gary DeMarzo: Mayor or Commissioner: http://goo.gl/afij10
– Demarzo, Lashman Sue Taylor, Wildwood: http://goo.gl/iNjKgj
– Court Again Dismisses DeMarzo’s Charges: http://goo.gl/HRrpdp
– DeMarzo: ‘I am Innocent’: http://goo.gl/fXMTpz