Suit: Reporting On Superiors Cost Officer’s Job

WILDWOOD CREST – A former Wildwood Crest police officer has filed suit in state Superior Court against Cape May County and its top prosecutor alleging that his career ended upon receiving a “scarlet letter” after he reported misconduct by two fellow police officers.
Michael D. Hawthorne Sr. is seeking a jury trial in his civil action against Cape May County Prosecutor Robert L. Taylor, individually and in his official capacity, and the county. Filed April 14, the lawsuit claims Hawthorne was denied his rights of due process and retaliated against after reporting police misconduct to the County Prosecutor’s Office in 2013 by the (then) Wildwood Crest Chief of Police Thomas DePaul and (then) Capt. David Mayer.
He claims his reports and disclosures to the Prosecutor’s Office are “protected from retaliation” according to the New Jersey State Constitution and the U.S. Constitution’s First Amendment rights.
Hawthorne is seeking to “vindicate his rights” and remedy the “loss and damages inflicted upon him by the defendants, including but not necessarily limited to compensatory damages, emotional distress, bodily harm and injury, physical illness, economic damages, injunctive and equitable relief….attorney’s fees, costs of suit, punitive damages and any other damages the Court deems fair and just.” No dollar amount was specified and Hawthorne filed the case “pro se,” on behalf of himself.
‘Kiss of Death Employment’ Letter
According to Hawthorne’s lawsuit, Taylor “retaliated” against him through a “series of administrative actions designed to terminate his employment as lieutenant so that Taylor’s nephew, Robert Lloyd, could be moved up and into the rank of lieutenant which was the position held by Hawthorne.” 
An administrative letter, called a “Brady Letter,” dated April 15, 2014, was sent by Taylor to Wildwood Crest, according to the lawsuit, stating that “Hawthorne was deceitful and demonstrated dishonesty and lack of integrity regarding Hawthorne’s investigation and complaints about the illegal conduct of his superior, Capt. David Mayer.”
The letter from Taylor said it “would not prosecute matters where Lt. Hawthorne’s credibility could be challenged based upon his previous false and deceitful statements and dishonest conduct….”
“The issuance of a Brady Letter is a move that is known to be fatal to a police officer’s career,” Hawthorne stated in his filing. “Brady v. Maryland is a 1963 U.S. Supreme Court ruling that requires prosecutors to inform criminal defendants of any evidence that they might use to defend themselves. That includes information whether a police officer who accused them of a crime has ever lied in an official proceeding.
“A Brady Letter is a note in prosecutor’s files about any officer who has lied,” the suit states. “Brady officers are typically terminated because they become ineffective as witnesses in criminal trials. The April 15, 2014 administrative letter was defamatory. It was false.
“Police officers who have been dishonest are sometimes referred to as Brady cops,” the lawsuit states. “Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.
“Today many police executives have recognized the importance of officer credibility and have established a ‘No Lies’ proclamation,” according to the lawsuit. “If a formal finding of misconduct calls into question the officer’s credibility, that officer may not be trusted to testify in any future cases. An officer who cannot testify – a so-called Brady cop – may find herself (sic) out of work and unemployable, as such an officer cannot make arrests, investigate cases or carry out other duties that might put her (sic) on the witness stand. 
“The April 15, 2014 administrative scarlet letter issued by Taylor against Hawthorne therefore ended Hawthorne’s career as a civil service permanently appointed police officer,” according to the lawsuit. “As a police officer, being told that none of your cases will ever be subjected to prosecution by the Prosecutor renders you ineffective, useless and subject to termination from employment.
“A Brady letter is the kiss of employment death,” Hawthorne stated in the suit.
Claims Due Process Denied
“Prosecutors and police supervisors who abuse the Brady-cop designation by labeling officers as Brady cops in order to punish them outside of formal disciplinary channels deprive officers due processes employment rights,” the suit states. “Due process” would include notification, a hearing and a “formal determination of truthfulness before a reduction in position regarding the employment of the officer may be taken.”
Hawthorne noted the Brady letter was issued without providing him prior notice, a hearing or opportunity to be heard, thus violating his constitutional and statutory due process rights. Hawthorne also asserts “Taylor made a unilateral official decision – as fact finder and judge – that Hawthorne gave false and deceitful statements and dishonest conduct” when he did not have legal authority to do so. Hawthorne claims that he was not given a chance for a hearing to address Taylor’s findings, nor was he given an opportunity to appeal Taylor’s decision.
“Taylor sent Hawthorne’s employer false, reckless and damaging information to end Hawthorne’s career so that Taylor could orchestrate the promotion of his nephew” according to the lawsuit.
The “Brady letter was false,” according to the lawsuit, “but Hawthorne had no meaningful way to defeat a disciplinary charge seeking his termination from employment when that charge simply accused him of being the recipient of a Brady letter.
“A Brady letter can be issued by a prosecutor only after a finding of untruthfulness has been made,” Hawthorne stated in the lawsuit. “The issuance of a Brady letter without such substantive and procedural due process rights contradicts the New Jersey Civil Rights Act.”
Hawthorne also is seeking compensatory and injunctive relief to remove all files prepared by or on behalf of the defendants which are either “Pre-Brady/Brady” communication.
Claims of Misconduct
Hawthorne claims he was “doing his job as a police officer (an internal affairs officer as well) and as a citizen in investigating his suspicions” about Mayer and DePaul.
In his 27-page lawsuit, Hawthorne claimed that the “two highest commanding officers in Wildwood Crest were committing official misconduct and defrauding the taxpayers” when he reported that DePaul and Mayer “stole time and money from Wildwood Crest, abused a federally-funded grant intended exclusively to further the interests of victims of domestic violence by using the grant monies for personal gain and benefit.”
The suit also stated “Mayer conducted a personal fruit business and did personal grant writing for his company called Every Grant.com while on the Wildwood Crest payroll and that DePaul and Mayer were involved in a car transport business called Snowbirds.”
According to the lawsuit, when Hawthorne informed Wildwood Crest Solicitor Doreen Corino about his concerns during a discussion in 2013 about who would become chief when DePaul retired later that year, she “instructed” Hawthorne to report the allegations to the County Prosecutor’s Office.
“Hawthorne knew this directive to be the kiss of death to his employment,” the lawsuit states. “Nonetheless, Hawthorne did as instructed and went to the Prosecutor’s Office on Sept. 17, 2013.”
The lawsuit also claims that Hawthorne had “reported and complained about all of this to DePaul who threatened to fire him if he revealed anything.”
Hawthorne stated in the lawsuit that he went to the County Prosecutor’s Office to “report what he reasonably believed to be matters of public concern involving the criminal conduct by police officers DePaul and Mayer.” He requested that the “Prosecutor’s Office watch Mayer for two weeks to independently corroborate his statements. 
“Immediately after leaving the Prosecutor’s Office, Hawthorne was confronted and chastised by DePaul,” according to the lawsuit. “DePaul was obviously alerted by someone from the Prosecutor’s Office which negated any possibility of a covert investigation.”
The lawsuit states that Hawthorne also reported that Mayer “prepared a forged lease to gain a mercantile license in North Wildwood” to sell fruit, although “by ordinance, only the person who produces the fruit may sell it. Mayer was not a producer of fruit,” according to the suit.
Hawthorne also said in the lawsuit that a local auto repair business owner told him that Mayer was trying “illegally to obtain inspection stickers for his fruit trucks. The business owner asked Hawthorne to report Mayer to the Prosecutor’s Office.”
No “Proper” Investigation Occurred
Taylor “failed and/or refused to permit a proper and thorough investigation into the complaints made by Hawthorne,” according to the lawsuit. “Instead, before a subsequent interview to clarify facts, Taylor ordered that Hawthorne be given a Miranda warning (a right to maintain silence) in an effort to silence him from coming forward with legitimate complaints about DePaul and Mayer.
“Taylor did not prosecute Mayer for criminal wrongdoing because if he did Hawthorne would be a shining star,” according to the lawsuit. “As such, this would foreclose the opportunity for advancement of Taylor’s nephew.”
The County Prosecutor’s Office “refused to interview Hawthorne about the allegations against DePaul and Mayer regarding the misuse of the Domestic Violence Grant,” the suit states.
Hawthorne also stated that he was told by one of the Prosecutor’s Office investigators that “Taylor would not let them investigate the matter and would not let them seize any of the computers or DVRs which held the original evidence of their misconduct….all the evidence was ultimately deleted or destroyed by the borough.”
The lawsuit alleges that there “never has been any determination by a judge or other appropriate authority figure” that the allegations made by Hawthorne against DePaul and Mayer “were found and/or determined to be untrue, deceitful or false.”
“Ultimately, Taylor made fact findings and formed conclusions regarding the truthfulness of Hawthorne in his complaints, reports and concerns regarding DePaul and Mayer and unilaterally issued a Brady Letter which served as the basis for Hawthorne’s termination from employment with Wildwood Crest,” the suit concludes.  
Personnel Changes
According to the suit, DePaul and Mayer were “permitted to resign from their high ranking positions in good standing despite Hawthorne’s valid and documented reports” about them. DePaul retired on Jan. 1, 2014, and is now employed by the County of Cape May and heads the Cape May County Police Academy as its director.
Mayer was “permitted to retire in lieu of disciplinary charges seeking termination from employment on or about May 1, 2014,” according to the lawsuit.
Hawthorne said he was “wrongfully forced to retire on or about Feb. 1, 2015.” He had an “impeccable career with absolutely no disciplinary record for 24 years,” according to the lawsuit.
Sgt. Robert Lloyd was promoted “on or about May 15, 2015,” to the rank of lieutenant, the position left vacant by Hawthorne.
According to the lawsuit, Detective Sgt. Joseph McGrath was promoted to captain May 15, 2015.
False Document Alleged
Sgt. Thomas Hunt was “wrongfully terminated” April 12, 2012, according to Hawthorne’s lawsuit, “despite the fact that Hawthorne reported to Special Investigator James Fallon that DePaul and Mayer created a false document used in the Hunt whistleblower litigation. Taylor has covered up this fact and pretends to have, or that he continues to be conducting a criminal investigation into this allegation.” 
Hawthorne asserts in the lawsuit that “one full year has elapsed since Taylor proclaimed last April 14 that his allegation against DePaul and Mayer is currently subject to a criminal investigation and more than two years has elapsed since the allegations were brought to the prosecutor’s office.”
In the lawsuit, Hawthorne stated “DePaul and Mayer sought to terminate Hunt’s employment after he blew the whistle on violations of the Family and Medical Leave Act (FMLA) and matters of public concern regarding various union related activities.”
Hunt has filed a civil lawsuit regarding the issue.
Immunity for Taylor?
In his lawsuit, Hawthorne claims that Taylor’s actions were “not quasi-judicial, nor within the scope of his prosecutorial duties” because he was not “engaged in investigation, initiation or pursuit of a criminal matter against Hawthorne and therefore is not cloaked with absolute immunity.”
Hawthorne said in the suit that Taylor “abused his prosecutorial authority under the New Jersey Constitution when he issued, in bad faith, an administrative letter which contained false, defamatory and malicious investigative finds against Hawthorne.
“This action is brought against defendants for investigative and administrative acts,” Hawthorne said in the lawsuit, “not for prosecutorial acts and hence there is no common law absolute immunity available to defendants as a defense.
“Absolute immunity goes to the task, not to the office,” the suit states. “Prosecutors have absolute immunity, but only for prosecutorial actions, not for administrative and investigative tasks. Absolute immunity applies only when the Prosecutor and those under his supervision function as advocates for the state in circumstances intimately associated with the judicial phase of the criminal process. At all times relevant, any and all acts by the defendants were not associated with the judicial phase of the criminal process.”
Hawthorne also cites a number of ethics standards that he believes are applicable to the County Prosecutor:
* “prosecutor should avoid a conflict of interest with respect to official duties”;
* “prosecutor should not permit his/her professional judgement or obligations to be affected by his/her own political, financial, business, property or personal interests”;
* “prosecutor who is related to another lawyer as parent, child, sibling or spouse should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer”;
* “Nor should a prosecutor who has a significant personal or financial relationship with another lawyer participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer, unless the prosecutor’s supervisor, if any, is informed and approved or unless there is no other prosecutor authorized to act in the prosecutor’s stead.”
“Taylor sought to protect his friend DePaul,” the suit states.
Hawthorne also alleges “a pattern of retaliation and abuse by the Prosecutor’s Office has emerged and is disturbing” and cites a number of other claims made about “abuse of his prosecutorial position.”
Allegations “False,” “Have No Merit”
When contacted about the lawsuit April 25, Taylor said he had read the complaint.
“In my opinion, the allegations in the complaint have no merit,” Taylor said. “Mr. Hawthorne was lucky. He was given the opportunity to retire rather than face the charges against him which may have resulted in his termination from the police department and his loss of his pension.”
Taylor would not elaborate further.
DePaul, Mayer and retired Capt. Daniel Bradley issued a combined statement April 27 when contacted about the lawsuit.
“We have reviewed the statements made in the legal action referenced; there is indisputable, documented evidence that clearly proves every allegation is unequivocally false. This will be addressed through the proper legal means,” Mayer sent in an e-mail combined statement for the three retired officers.
Bradley is mentioned in the lawsuit in regard to a memo allegedly forged, according to the lawsuit. 
Groon Declines Comment
Wildwood Crest Mayor Carl Groon declined to comment when contacted April 25 about Hawthorne’s lawsuit. “As a rule, I don’t comment on staff publicly,” Groon said. “I have no comment, either negative or positive, to say.”
Groon also serves as borough commissioner of public safety.
To contact Karen Knight, email kknight@cmcherald.com.