Hearing Part 2 Focuses on ‘09 Firearms Qualification

CAPE MAY – Why? That was the query many in the audience asked as they sat through day two of the public administrative hearing into allegations that Capt. Robert Sheehan of the Cape May City Police failed to meet the Attorney General Guidelines for firearms qualification in 2009.
At stake is a possible suspension for Sheehan if the city’s charges are sustained. The question nagging many was why is the city going to such effort on a seven-year-old violation?
The issue can be briefly stated even though the testimony and attorney arguments make it appear more complex.
The city maintains that in 2009, then police chief Diane Sorantino, Capt. Robert Sheehan, and Lt. Chuck Lear all failed to meet requirements of firearms qualification. City records suggest that the three met the requirement that they qualify with the weapons twice in 2009, but that the two instances were not at least three months apart, also required by guidelines.
Sorantino retired in January 2014 and Lear retired Jan. 1, 2016. Lear’s retirement was part of a settlement agreement stemming from allegations that he improperly used compensatory time when his contract denied him that privilege. Lear’s settlement contained language which barred the city from any future actions against him regarding the 2009 firearms issue. The city is pursuing administrative disciplinary action against Sheehan for the alleged violation.
According to the city’s attorney, Todd Gelfand, the violation, even though years in the past, is a serious one and the city demands a penalty. Gelfand has gone so far as to repeatedly claim that the fact that Sheehan did not meet the strict rules in the Attorney General’s guidelines means that “every day he carried his weapon until he qualified in 2010 he was committing a third-degree crime.”
That language, that a criminal violation occurred, was included in numerous statements during the hearing even though the Cape May County Prosecutor’s Office, which has purview over decisions of criminal intent and offense, found no basis to bring charges.
Based on testimony from the prosecutor’s lead investigator, David Hogan, and on letters from the Prosecutor’s Office read at the hearing, the prosecutor’s decision was that there was no criminal intent in any alleged 2009 violation, that an extended period has passed since the supposed violation, and that all individuals, including Sheehan, qualify in all subsequent years.
The Prosecutor’s Office says, according to testimony that the Attorney General’s Office concurred.
The case was initially brought to the prosecutor as a potential criminal action by retired Cape May City police officer Rusty Chew following 2015 Open Public Records Act access to documents.
Chew is also the individual who first raised the issue of Lear’s use of time that led to Sheehan’s demotion from chief to captain in March 2015 and started a controversy that saw the city in Superior Court suing the County Prosecutor.
Day one of the present hearing on Sheehan’s alleged violation was Feb. 17 and a day three will need to be scheduled.
Day two, ironically, March 4 exactly two years after the city promoted Sheehan to the position of chief of police to fill the vacancy left by Sorantino’s retirement in 2014 and also one day off from the anniversary of the council meeting that demoted Sheehan in 2015.
Much of the morning was spent with the city questioning Hogan about the criminal investigation done at the Prosecutor’s Office following Chew’s allegations concerning the firearm’s qualification.
Gelfand pressed Hogan about why he had not personally interviewed Chew. Chew’s interview was conducted by two other investigators.
He questioned Hogan on why the interview with Chew was not recorded. Gelfand pressed on the guidelines themselves and the lack of exceptions to the strict rules on the time duration that must be present between the qualifying attempts.
Several members of the public expressed surprise that the city would spend so much time trying to impeach the quality of the investigation by the prosecutor. No finding at the hearing can possibly turn an administrative violation into a criminal one.
What is at issue: was there a violation in 2009 and, if so, are there grounds for an administrative penalty against Sheehan?
The hearing saw at one point all three of the city’s last chiefs of police along with two former mayors and a delegation of police chiefs and captains from a number of neighboring municipalities.
The discussion with former chief Robert Boyd, former mayor Jerry Inderwies, Sr., and several police commanders kept returning to why the city would pursue so intense an effort after so long a period against the person who commands its police even in his role as captain.
“Do you get the feeling that these guys don’t want Rob Sheehan as head of the police department?” Boyd asked, clearly rhetorically.
Bill Murray, a former council member when Sheehan was appointed chief in 2014 remarked, “There is something more going on here.”
Testimony moved from Hogan to City Manager Bruce MacLeod, who, as city chief executive, signed the charges that led to the administrative hearing.
MacLeod had been in overt disagreement when the prosecutor did not find that the alleged inappropriate use of time by Lear was found not to be a criminal matter. He expressed his belief that it was.
Here he testified that within days of receiving a letter from the Prosecutor’s Office stating that there was no criminal intent in the firearms violation, he took the step to move on administrative charges. He stated that he did not feel it would have been satisfactory to address the matter through more education on the guidelines.
Again the public expressed surprise when MacLeod said that he took the action to bring the police commander up on administrative charges without having any discussion of his decision with Mayor Edward Mahaney with whom he appears to work closely on many significant decisions.
Christopher Gray, Sheehan’s attorney, asked MacLeod about patrolman Doug Henderson.
In the first hearing, Henderson, who oversaw departmental firearms qualifications, testified that he knew the violation occurred and orally reported such to Sorantino.  He also admitted that he signed a letter that stated that all personnel, except for one officer then on leave, had met the qualifications.
Gray, pointing to the inconsistency, asked MacLeod if he had done anything to look into Henderson’s letter. MacLeod responded that even though he had heard that testimony in February, he had not actually seen the letter until Gray showed it to him and had taken no action.
Henderson’s explanation for the inconsistency was that Sorantino already “knew about the violation” because he had told her orally and “I wasn’t going to put myself out there by putting that in writing.”
Throughout his testimony Henderson hinted at his fear of reprisal if he pushed too hard on what he knew to be a violation. He also said there was no specific attempt to intimidate him and that he was not instructed to write that letter in the way that he did.
Henderson also said that while he had told Sorantino of the violations, he never had a direct conversation with Sheehan about it. Sorantino testified that she has no recollection of being told orally by Henderson that there was a problem with the qualifications for 2009.  Part of the argument from the defense appears to be whether or not Sheehan ever knew he was in violation.
The defense also brought up numerous situations where strict compliance with the guidelines would not occur and where flexible response that met the intent of the guidelines seemed to be accepted practice. The city’s attorney emphatically maintained that the guidelines do not offer room for interpretation and alternative application.
Ironically, as one member of the public noted afterward, this is the same city attorney and set of officials that were accused by the prosecutor of violating Attorney General guidelines when they responded to public outrage at the demotion of Sheehan by publishing numerous documents related to the “comp time” internal affairs investigation.
That release of information led the prosecutor to post a monitor in the police department and the city went to court to challenge the prosecutor’s right to do so.
In his 53-page ruling, Superior Court Judge Christopher Gibson noted “It cannot be ignored that the monitor order was put in place in response to the city’s breach of Attorney General Guidelines.”
Providing a related context for these hearings is the lawsuit filed against the city by Sheehan in May 2015. That suit, which focuses on his demotion by city council, is still active. There have been no reported attempts to settle.
A third day of testimony will be set, but given attorney schedule conflicts, this latest phase of the controversy will not be over soon.
To contact Vince Conti, email vconti@cmcherald.com.