Judge Hears Lawyers’ Arguments

COURT HOUSE – Superior Court Judge J. Christopher Gibson’s courtroom could almost have been mistaken for a Cape May City Council meeting July 20.
That is because about 25 city residents filled the seats for the first open hearing in the longstanding controversy between the city and its ex-Chief of Police Robert Sheehan.
Among those in the audience were ex-mayors Jerry Gaffney and Edward Mahaney Jr., and current Council members Shaine Meier, Beatrice Pessagno and Patricia Hendricks.
On one side of the aisle, former Council member William Murray sat near current Solicitor Frank Corrado. On the other, ex-Chief of Police Robert Boyd sat with Gaffney.
Sheehan filed suit against the city in March 2015, two years and four months ago, weeks after he was removed as chief of police and reverted to his previous position as captain which he still occupies.
Ups and Downs
The controversy since March 2015 has taken the resort on a rollercoaster ride:
* A newly-elected council member resigned in an open meeting.
* A closed press conference that led to intervention in the city police department by the County Prosecutor.
* Litigation in which the city sued the Prosecutor’s Office.
* The retirement of a long-serving lieutenant of police, Clarence Lear. He then ousted the incumbent mayor by a wide margin in the November 2016 election.
* Controversial move by the outgoing council in its final months to indemnify itself for possible legal actions that might arise for them personally as a result of the controversy.
* The hiring of a new police chief while the lawsuit seeking Sheehan’s reinstatement was active.
The struggle with Sheehan was the most often-discussed issue at city council meetings until the change in administration in January of this year.
Public’s First View
It was no surprise that so many individuals wanted a first-hand peek into the legal proceeding.
What was at issue in Gibson’s courtroom, however, was not Sheehan’s full suit.
There were no witnesses sworn or testimony taken. This was a day for the opposing lawyers to argue motions before the court, the most important of which was whether or not the undisputed facts of the case satisfied the requirements of the Whistleblower statute as laid out in the Conscientious Employee Protection Act (CEPA).
Best for Sheehan
The best outcome for Sheehan would be that Gibson decides that they do and grants a partial declaratory judgment in Sheehan’s favor. Such a decision supports Sheehan’s claim that he was a whistleblower concerning inappropriate actions on the part of the city.
His suit claims that the adverse employment action taken against him was retaliation. He would still have to proceed with his suit and prove his case, but a positive judgment from Gibson would mean that any jury would not have to decide if Sheehan was a legitimate whistleblower.
Help for City
The city’s case would be helped by keeping the question of that whistleblower status open or even having the CEPA claim dismissed. The city opposed the motion by Sheehan’s lawyers arguing that a plausible case can be made that Sheehan sought whistleblower status only as a preemptive strike when he saw the city moving against him.
In effect, the city paints Sheehan as an opportunist who sought to head off an adverse employment action that had legitimate issues behind it.
Each side submitted motions supported by lengthy “statements of fact,” essentially statements drawn from the thousands of pages of depositions taken in the case.
About ‘Comp’ Time
Much was made of the origin of the conflict which centers around Lear’s use of what has alternately been called comp (compensatory) or flex-time, a practice that all agree was longstanding when Sheehan became chief.
Sheehan’s attorney, Matthew Curran made much of the fact that once Sheehan became chief, only three days of comp/flex time were taken by Lear.
That point was not raised by the city lawyer when he generally spoke about thousands of taxpayer dollars that were at stake in the use of an unapproved and illegal process aided and abetted by Sheehan.
Mayor Lear Absent
Ironically, the city attorney’s case repeatedly returned to discussions of illegal activity by Lear even as that attorney now represents the city headed by Lear as mayor.
Lear was absent from the hearing.
Concern for Taxpayers
The city’s attorney, Todd Gelfand, asserted that there was no proof that the governing body was motivated by anything but concern for what was happening to taxpayer money, and that it saw Sheehan as allowing it.
Curran’s documents and oral arguments pointed to:
* Missteps by the city in launching an internal affairs investigation that was contrary to Attorney General Guidelines.
* Continuously questioning decisions made by the County Prosecutor.
* Mishandling information it should never have made public.
* Inappropriately using Sheehan’s request for “Garrity protections” as if it inferred guilt.
“Garrity Rights”
“Garrity rights” can be thought of as analogous to Fifth Amendment rights against self-incrimination provided to employees in government jobs.
In this case, they are available to a police officer being questioned in an internal affairs investigation, an investigation by a city-hired, retired State Police Maj. James Fallon.
“Garrity protections” stem from a 1967 U.S. Supreme Court decision and there should be no presumption that invoking them infers guilt.
Curran claimed that his request for “Garrity protections” was portrayed to city council members in ways that increased the inference of criminal guilt on the part of Sheehan.
Fifth Amendment Invoked
It was then pointed out that the then-sitting mayor, city manager and solicitor each invoked their Fifth Amendment rights “When asked to provide statements to the Prosecutor’s Office.”
In December 2015, the County Prosecutor’s Office issued its final report on the Lear investigation. Documents submitted by Sheehan’s attorney characterize that report as finding that “the complaint of improper earning-compiling of comp-flex time against Clarence Lear was not sustained.”
Those documents continue by claiming that the County Prosecutor’s report found the Fallon investigative report “flawed.”
What? When?
A key issue in the presentations was what did the city officials know and when did they know it?
Sheehan’s side presented evidence in its written submissions and oral arguments that City Manager Bruce MacLeod was aware of the time-use practice concerning Lear even before Sheehan became chief.
There was also a focus on a July 2014 memo written by MacLeod and never issued that rendered a decision to reprimand Lear and which never mentioned any concern for Sheehan’s behavior.
What Happened?
The implication, strongly denied by Gelfand, is that something happened after that July date that led the city, for other reasons, to want to force Lear out of the police department.
Everything else led from a sequence of events that may very well have been initiated by a desire for promotion within the ranks of the department, a promotion ladder some perceived was sidetracked by Lear’s presence in the department.
A Living Lesson
The hearing lasted about 90 minutes. It provided a civics lesson for those who may not already have realized that a lawyer’s ability to articulate and present a case may be as important as the intrinsic merits of a case.
The lawyers sparred and then rather suddenly Gibson called a halt. He had what he needed, or at least what he thought he was likely to get.
Settlement Hearing
Gibson said that a settlement hearing, a common practice in civil suits which does not mean a settlement is in the offing, would come up in early August.
Gibson said he would have a decision on this day’s motions before that settlement hearing.
As a settlement hearing approaches, some city officials argue that the actions of the previous council and city manager relating to the hiring of a new chief and the nature of his contract, actions taken as that administration exited the stage, make any efforts to settle the overall lawsuit more rather than less difficult.
Things that had long been hidden from the public are moving quickly and with opportunities for the public to look behind the legal curtain.
It’s All Public
Hearings are public and documents filed in the case are available through the court clerk for the cost of making copies.
With this hearing at a close, Gibson promises a decision soon on motions that do not resolve the case but certainly can have a significant impact on it.
To contact Vince Conti, email vconti@cmcherald.com.