CAPE MAY – Almost a year since the March 3, 2015 Cape May City Council meeting when then Police Chief Robert Sheehan was reverted to his previous rank of captain, the controversy that has divided the community has shown new life.
The action against Sheehan in 2015 was taken because of what council members said was an abuse of compensatory time by the department’s second in-command, Lt. Clarence Lear and Sheehan’s approval of that practice.
Now on Feb. 17, with Lear not so gently ushered into retirement, Sheehan has been brought up on new administrative charges, alleging that he failed to meet Attorney General Guidelines for firearms qualification in 2009. The city is seeking to discipline Sheehan by imposing a period of suspension for the 2009 infraction.
For some in the audience, such as former mayor Jerry Gaffney, there were statements of amazement that the city would “reach back” seven years to find a technical violation and bring charges against Sheehan.
Sheehan’s attorney, Christopher Gray, stated that part of the defense will be based on charges of retaliation against Sheehan by city officials angry over Sheehan’s suit against the city regarding the 2015 demotion.
Behind the Scene
The city maintains that the firearms infraction only came to light in 2015 when retired police sergeant Rusty Chew filed an Open Public Records Act (OPRA) request for the qualification data.
Chew has been a behind-the-scenes actor in the on-going drama from the start.
Another OPRA request by him in 2014 led to the public airing of Lear’s practice of taking compensatory or flex time resulting in the action against Sheehan. Prior to all of that, Chew also ran against, and lost, a close race for mayor to Edward Mahaney by 12 votes.
More than once, hearing officer retired Superior Court judge Richard Williams had to halt the exchanges between lawyers for both sides as the context of a year of accusations and counter-accusations elevated the hearing on an administrative charge to the level of the larger battle being waged.
Lear is gone; the city’s battle with the County Prosecutor’s office over release of confidential information has been resolved through a settlement; and an attempt to recall the mayor has failed.
Demoted, Still Serving
What remains is Sheehan, demoted from chief to captain, but still serving as commander of the police department and still pressing his suit against the city for wrongful action in 2015.
Somehow in this larger context of turmoil that has roiled segments of the public, and led to months when the topic dominated open discussion at council meetings, the charges on firearms qualification seem to many too minor to warrant administrative charges so many years later.
City special Counsel Todd Gelfand was well aware of the fact that, as an isolated incident of a technical violation of guidelines, he needed to provide reasons why the action was being taken and why the violation must be viewed as serious.
Firearms Qualification
Gelfand opened the hearing explaining that the guidelines unambiguously state that police officers must qualify with firearms twice a year and that the two qualifications must be at least three months apart. Gelfand presented documentation to show that Sheehan, in 2009, took his first qualification test Oct. 27 and his second Dec. 21. He met the requirement of qualifying twice in one year, but did not allow for a three-month interval.
That failure, according to Gelfand, meant that he was not officially qualified and thus was not legally allowed to carry his firearm at all times as police officers are required to do.
Gelfand repeatedly said in his opening remarks that Sheehan’s continuing to carry his weapon after the violation of the guidelines was a “third-degree offense under criminal law.”
To bolster the city’s case, Gelfand went back even further to 2002, seven years prior to the alleged 2009 infraction and 14 years in the past from the current hearing.
In 2002, Gelfand maintained that Sheehan violated standard procedure for the firing range, what the city termed a safety violation, for carrying a gun other than the one used for qualification, onto the range. What Gelfand said he was attempting to show was a pattern of Sheehan taking the firearms qualification procedures lightly.
City Witnesses
The city presented two witnesses in the direct presentation of its case.
City Manager Bruce MacLeod testified less than five minutes, to present and authenticate some documents and to state that he saw Sheehan with his weapon during the time his qualification had allegedly lapsed.
The major witness for the city was Patrolman Doug Henderson, who served as the department’s firearms instructor. He was the individual who maintained qualification records.
Henderson said that he notified then-police chief Diane Sorantino that she, Lear, and Sheehan had failed to qualify in the timeframe specified in the guidelines. He further stated that he was only required to notify the officer in charge of the department and that it was Sorantino’s responsibility to deal with the information after that.
Feared Retaliation
Asked why he did not go further, especially since his information involved the chief to whom he was reporting the results, Henderson said that he was the sole bread winner for his family and did not want to risk some form of retaliation.
Henderson was also questioned as to why he wrote another letter in January 2010, which stated that all senior officers in the department had qualified when he now stated he knew that to be untrue.
The lead investigator on the matter from the Prosecutor’s Office, Detective David Hogan, said that Henderson never indicated that he had been intimidated or coerced into writing that letter when he was interviewed as part of the investigation.
Later Weapons Qualified
All three individuals, Lear, Sheehan and Sorantino, later qualified. Henderson also said that he could point to no instance where he was intimidated or threatened with retaliation over the incident. The city made no claim that intimidation occurred.
In June 2015, the city referred the matter to the Cape May County Prosecutor’s Office along with documentation concerning results of qualifications in 2009. Following an investigation, the Prosecutor’s Office responded that the incident was a minor offense and, given the time that had elapsed and the subsequent qualifications, there was no criminal activity.
No Criminal Intent
According to Gray, the Prosecutor’s Office consulted with the Attorney General’s Office which concurred in the finding that there was no criminal intent and no criminal activity worth pursuing so many years later.
Gelfand, in his opening statement stated that the city did not consider this a minor violation. He asserted that there was nothing in the guidelines that “suggest this provision is any less important than any other provision.”
He repeatedly asserted that Sheehan’s carrying of a firearm after the lapsed qualification was a “third degree criminal crime.”
Sizable Police Presence
Public attendance at the hearing included command-level police officers from many departments in Cape May and Atlantic counties.
In conversation an officer noted that technical violations of this part of the guidelines do occur without officers involved being “disarmed” over a lapse. Examples used were pregnant officers who cannot be on the range and then qualify when they return to duty or individuals serving in a National Guard call-up who qualify late due to that service. The lapse is cleared later.
Sheehan’s Defense
Sheehan’s defense began with testimony from Hogan who characterized the violation as “minor” and an “oversight.” Hogan said he was away on vacation when the case first came to the Prosecutor’s Office. He admitted that the initial interview with Chew was not recorded and that he relied on the interview reports from the individuals who conducted it.
The questions from Gelfand to Hogan appeared to lay the groundwork for claiming that the investigation that cleared Sheehan of any criminal wrong doing did not take full advantage of Chew’s interview. Yet the city has no need to pursue the matter of criminal activity in an administrative hearing.
County Prosecutor Robert Taylor declined comment since the hearing was on-going.
Hogan’s testimony came at the end of the day’s proceedings. He will be recalled for a second day of testimony when the hearing reconvenes on March 4 in the City Hall auditorium at 10 a.m.
It will continue to be open to the public although access to the hearing is not provided through the city’s video streaming technology.
To contact Vince Conti, email vconti@cmcherald.com.
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