City Loses Bid to Quash Subpoenas

CAPE MAY – The City of Cape May’s almost four-month-long struggle with Cape May County Prosecutor Robert Taylor took a new turn but had a familiar result when the city’s attempt to quash grand jury subpoenas was denied.
Taylor said Aug. 19, “I am pleased with the decision and look forward to the documents the city will provide.”
In April, the city filed a civil suit against Taylor and his office in an attempt to force removal of the police monitor Taylor installed in the police department. That suit is still active, but the initial ruling on the city’s request for injunctions and declaratory judgment was denied by Superior Court Judge J. Christopher Gibson.
More recently the Prosecutor’s Office issued three subpoenas requiring documents from the city which Cape May’s Special Counsel Todd Gelfand sought to quash in Superior Court’s Criminal Division.  
The Presiding Judge Bernard E. DeLury of the Criminal Division issued a letter ruling Aug. 13 denying that motion.
In addition to the motion to quash the subpoenas, Cape May also requested that over 400 pages of documents be protected from the subpoenas on the grounds that they were attorney/client privileged documents related to closed meetings of the city council in which “litigation strategy was discussed.”
DeLury ruled that “the majority of the documents should be produced in compliance with the Prosecutor’s subpoenas.” While the ruling did grant the city’s request to protect some documents, DeLury noted that “the court is unpersuaded that the protective cloak of the privilege extends to the majority of the communications produced by the city in its privilege log.”
A third request from the city was for supercession of the grand jury and disqualification of the Prosecutor’s Office in the case. 
In effect, the city requested that the court suspend the grand jury investigation or transfer the matter to a different prosecuting attorney. That request was also denied, with DeLury saying that “the city has not made out a case for this extraordinary relief.”
The matter before the court began in the August 2014 time frame when city officials met with the County Prosecutor’s Office concerning alleged use of compensatory time by police Lt. Clarence Lear. 
The city maintained that the practice was in violation of Lear’s contract and city policy. Instead of dealing with the matter as a Civil Service issue, the city went to the Prosecutor’s Office.
Jack Wichterman, at the time deputy mayor and now a temporary appointed member of council filling the vacancy due to the resignation of Jerry Inderwies, Jr., has said that he always assumed the matter would be handled administratively by City Manager, Bruce MacLeod.
The Prosecutor’s Office, again quoting from DeLury’s ruling found that “Lt. Lear’s use of comp time was approved by higher ranking officials” and was thus lawful.
In March, one day before his probationary period as police chief ended, council took the step of rescinding Robert Sheehan’s appointment as chief and reducing him back to the rank of captain. 
As the ranking officers in the department, Sheehan and Lear have continued to run the department’s operations throughout. The action was taken due to what was termed an ongoing investigation into Lear’s use of leave and Sheehan’s approval of it.
The action against Sheehan set off a controversy in the city, led to city press releases that the Prosecutor’s Office said violated rules of confidentiality in an Internal Affairs investigation, resulted in the monitor being placed in the department, led the city to file its civil suit against the Prosecutor, produced a suit by Sheehan against the city for wrongful dismissal as chief, sparked a recall effort against Mayor Edward Mahaney, that failed to gain the required signatures, and ultimately led to the prosecutor’s current investigation and the subpoenas.
Part of what damaged the city’s case in Delury’s courtroom was Cape May’s previous release of information. The ruling states that the court “notes the inherent inequity in permitting the City to use privilege as a sword rather than a shield by invoking privilege to prevent production of documents of communications they previously placed in issue.”
He cited Gibson’s ruling in the civil case, which said the city “chose to disregard the County Prosecutor’s directive to not reveal any facts with regard to the investigation and the city did so in a highly public fashion by issuing a press release.”
The matter at issue has moved from the civil courts, where it is still active, to the Criminal Division, where DeLury is presiding judge.
Described in his letter, it is “the Matter of an Investigative Grand Jury Into the City of Cape May and Several Officials.” 
The ruling provides minimal insight into the grand jury issues, but it does identify three areas of concern. The subpoenas, according to the letter ruling, are “compelling production of certain records and documents pertaining to a liquor license in Cape May City, the comp-time issue, and the retention of outside counsel.”
At a public meeting of the city council, questions were raised by the public as to whether or not the city plans to appeal the ruling.
No definitive answer was provided.
Delury’s ruling stayed the city’s compliance with the subpoenas until Aug. 21 and also directs the prosecutor to refrain from presenting evidence to the grand jury until Sept. 1. 
That would be the time period within which the city would most likely appeal if it decides to do so.
Meanwhile the hearing on Civil Service charges for Lear has been postponed until October and no discussion is taking place in public meetings of council regarding Sheehan. 
The dispute over the handling of comp-time issue and its impact on the police department’s command structure has itself become the issue. With Sheehan’s suit against the city active, with the city’s civil suit against the Prosecutor still active, with the intent to convene the investigative grand jury, with the city needing to decide if it will appeal the ruling regarding the subpoenas, and with the administrative hearing for Lear still pending, prospects for an end to this controversy do not seem imminent.
To contact Vince Conti, email vconti@cmcherald.com.