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Open Government Advocacy Project:
Two Police Employees have suits pending against Berkeley Township

Issue Detail:

At the following link there is a 42-page PDF file that contains: a) August 21, 2009 Administrative Law decision regarding Berkeley Police Lieutenant Robert Andrews and Police Dispatcher Denise Capizzi. b) January 18, 2011 lawsuit filed by Lieutenant Andrews against Berkeley Township Administrator Leonard W. Roeber, Police Chief John C. Weinlein and Police Officer James Britton. c) August 19, 2009 amended lawsuit filed by Dispatcher Capizzi against Chief Weinlein, Police Officer Timothy McNichols and the Ocean County Prosecutor's Office. SUMMARY OF THE ADMINISTRATIVE LAW DECISION Departmental charges were brought against both Capizzi and Andrews after Sergeant Britton, in response to questioning by Chief Weinlein, said that while he was not certain that oral sex was taking place, when he returned from road duty and walked into the police radio room, he saw Capizzi's head in Andrew's lap while they were both on duty. The questioning that caused Britton to reveal this event occurred in 2005 although the event itself allegedly occurred on June 30, 2002. In a written certification Britton provided concerning the incident, Andrews wasn't named. Rather Britton referred to him only as "the other sergeant on duty." (Britton was the "road sergeant" on duty while Andrews was the "desk sergeant.") Yet, under cross examination, Britton was confronted with documentation that showed that he was at headquarters during the period he testified he was on road duty. Ultimately, Administrative Law Judge Patricia J. Kerins found Andrews and Capizzi did not engage in a sexual act while on duty in the radio room. Judge Kerins found that Britton was not a credible witness and noted that although Britton, while standing in the radio room, supposedly had a side view of Capizzi kneeling in front of Andrews, who was seated, with her head in his lap, he was unable to tell what, if any, sexual act was taking place. Further research shows that at its December 2, 2009 meeting, the New Jersey Civil Services Commission agreed with the Administrative Law Judge that the charge against Andrews should be dismissed (see http://www.state.nj.us/csc/about/meetings/minutes/120209m.html) On February 11, 2011, Andrews applied to the Civil Services Commission to require Berkeley Township to pay the fees that he incurred defending against the disciplinary charge. (see http://www.state.nj.us/csc/about/meetings/schedule/pdf/020211a.pdf ) As a result of that application the Commission awarded Andrews his attorney fees in the amount of $19,430. (see http://www.nj.gov/csc/about/meetings/minutes/020211m.html ) SUMMARY OF ANDREWS' LAWSUIT AGAINST BERKELEY In his lawsuit, filed on January 18, 2011, Lieutenant Andrews alleged that the investigation that led to the sexual misconduct charge was not complete and and was not compliant with the New Jersey Attorney General's Internal Affairs Guidelines. He alleged that the charges being brought were just part of a pattern of harassment and retaliation by Chief Weinlein and others. He asserted claims under the Conscientious Employee Protection Act (Whistleblower Act), the New Jersey Law Against Discrimination and the torts of intentional infliction of emotional distress and malicious prosecution. He is represented in the suit by Charles J. Uliano of West Long Branch who also represented him in the administrative proceedings. SUMMARY OF CAPIZZI'S LAWSUIT AGAINST BERKELEY Capizzi, in her lawsuit, stated that she was hired as a dispatcher in 2002. After she separated from her husband in 2003, she said she began a consensual relationship with Officer Timothy McNichols who she alleges was married. Capizzi said that during the relationship, McNichols would meet with her while she was off duty but while he was on duty. In February 2004, Capizzi said that she became pregnant with McNichols' child. Although she resisted, McNichols allegedly pressured her to have an abortion. She said that she finally relented to the pressure and allowed McNichols to take her to Pleasant Women's Pavilion where she received an injection of Methotrexate to induce an abortion. However, she said that prior to taking the drug, she took large doses of folic acid which he understood would counteract Methotrexate. After consulting with her own doctor, she determined that the abortion did not induce and that her pregnancy remained viable. A few weeks later, however, she said that she fell down 13 concrete steps while at work on a cold and rainy night. This caused her to suffer a miscarriage. Shortly thereafter, her alleged relationship with McNichols came to an end. Thereafter, she claimed that she was counseled and given an official warning about her relationship with McNichols and that in order to gain information about the relationship, the confidence of counseling sessions that she had been attending must have been breached. She was interviewed by the Ocean County Prosecutor's office about the relationship and Chief Weinlein ordered her, without reason, to undergo a psychological evaluation. She claims that McNichols was never counseled, warned or ordered to be evaluated for his role in the relationship. Her lawsuit alleged that in April or May of 2004, McNichols told the police administration that Capizzi had an abortion and that was what caused the termination of her pregnancy. Weinlein, upon receipt of this information, allegedly decided to pursue criminal charges against her based on his belief that Capizzi's claim that a work related fall caused her to miscarriage was fraudulent. In early June 2004, she said that her working conditions became hostile and abusive. She alleges that on June 7, 2004, she was ordered to meet Chief Weinlein at 3:30 p.m. on July 11, 2004. When she reported to the meeting, she said that she was arrested and led out of the building in handcuffs in front of her follow employees. She was indicted for insurance fraud on September 28, 2004. She claimed, however, that no evidence regarding the incident that was favorable to her was presented to the Grand Jury. She claims that the prosecutor's office dismissed the charges after learning of the successful efforts that she made to counteract the effects of the Methotrexate. She alleged that Weinlein, when the fraud charges were beginning to unravel, convinced the Prosecutor's office to bring Official Misconduct charges against her for altering a police record. Capizzi explained that while she was pregnant, she fainted at a convenience store and police were called. For some unknown reason, the officer completing the report indicated that she was intoxicated. When she saw the error, she said that her supervisor gave her permission to correct it. After she was indicted for Official Misconduct, the Prosecutor's Office, in February 2005, determined that the charge should be dismissed. Yet, she said, Weinlein and others encouraged that a disorderly persons charge be filed against her. Such a charge was filed and Capizzi claims that in June 2005, she was found not guilty. Her lawsuit claims that she has not been paid the attorney fees that she incurred to defend against the charges. Even after the criminal charges were resolved in her favor, she remained suspended and claimed that Weinlein and others in the administration filed additional departmental charges against her to keep her on suspended status. Ultimately, she claimed that she was notified not to return to work even though she had been restored to paid status. Capizzi's complaint list several reasons why she should recover money from the Township including the "tort of outrage," malicious prosecution and civil rights violations. She is being represented in her lawsuit by Robyn B. Gigl of Livingston. ABOUT ME AND WHY I'M POSTING THIS. I chair the New Jersey Libertarian Party's Open Government Advocacy Project which seeks to increase governmental transparency and accountability, particularly at a local level. For more information on the Libertarian Party, go to http://www.njlp.org. As part of my work, I routinely check civil court cases where at least one of the parties is a government agency or official. Often, these lawsuits are never revealed to the public or written about in the newspapers. I post them on public forums because I believe that civil lawsuits may be of interest to citizens and taxpayers. John Paff, Chair New Jersey Libertarian Party's Open Government Advocacy Project Somerset, New Jersey




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