                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5650-16T4
                                                                    A-1714-17T4
                                                                    A-0075-18T4
                                                                    A-3428-18T4

CHRISTOPHER J. GRAMICCIONI,

          Petitioner-Appellant,

v.

DEPARTMENT OF LAW AND
PUBLIC SAFETY,

     Respondent-Respondent.
_______________________________

GREGORY J. SCHWEERS,
JACQUELYNN F. SEELY and
RICHARD E. INCREMONA,

          Petitioners-Appellants,

v.

DEPARTMENT OF LAW AND
PUBLIC SAFETY,

     Respondent-Respondent.
_______________________________
MONMOUTH COUNTY
PROSECUTOR'S OFFICE,
CHRISTOPHER J. GRAMICCIONI,
GREGORY J. SCHWEERS,
JACQUELYNN F. SEELY, and
RICHARD E. INCREMONA,

     Petitioners-Appellants,

v.

DEPARTMENT OF LAW AND
PUBLIC SAFETY,

     Respondent-Respondent.
_______________________________

           Argued (A-5650-16/A-1714-17/A-0075-18) April 4,
           2019 and Submitted (A-3428-18) May 3, 2019 –
           Decided June 7, 2019

           Before Judges Simonelli, Whipple and Firko.

           On appeal from the New Jersey Department of Law and
           Public Safety.

           Robyn B. Gigl argued the cause for appellants
           (GluckWalrath LLP, attorneys; Robyn B. Gigl, of
           counsel and on the briefs; Victoria Flynn, on the briefs).

           Daniel M. Vannella, Deputy Attorney General, argued
           the cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Melissa H. Raksa, Assistant
           Attorney General, of counsel; Daniel M. Vannella, on
           the briefs).




                                                                        A-5650-16T4
                                       2
PER CURIAM

      In these consolidated appeals, the Monmouth County Prosecutor's Office

(MCPO), Monmouth County Prosecutor Christopher J. Gramiccioni, and former

Monmouth County Assistant Prosecutors Gregory J. Schweers, Jacquelynn F.

Seely, and Richard E. Incremona (collectively, appellants), appeal from the July

6, 2017, October 27, 2017, August 2, 2018, and March 19, 2019 orders of the

Department of Law and Public Safety refusing, in part, appellants' request for

defense and indemnification.

      On June 16, 2015, Philip Seidle, an off-duty Neptune Township police

sergeant, shot and killed his ex-wife Tamara Wilson-Seidle with his service

weapon. Wilson-Seidle's estate (Estate) brought a lawsuit in the United States

District Court for the District of New Jersey, Kirsten Siedle, et al. v. Neptune

Township, et al., No. 17-4428 (D.N.J. June 16, 2017), against appellants, as well

as other law enforcement agencies.

      The Estate has filed one complaint and three amended complaints in the

district court. Each complaint describes Seidle's history of domestic violence

towards Wilson-Seidle in the years preceding the fatal shooting. The original

complaint, filed on June 16, 2017, named the MCPO and Gramiccioni as

defendants and alleged they failed to properly protect Wilson-Seidle, permitted


                                                                         A-5650-16T4
                                       3
Seidle to remain on the police force, and improperly returned Seidle's service

weapons after they were civilly seized.

      On June 21, 2017, the MCPO and Gramiccioni sought defense and

indemnification from the New Jersey Attorney General. On July 6, 2017, the

Attorney General issued a written decision granting in part and denying in part

the request. Relying upon State v. Wright, 169 N.J. 422 (2001), the Attorney

General distinguished claims arising from "classic" law enforcement activities,

which the Attorney General must defend and indemnify, from administrative

functions, which are carried out on behalf of the county and are not eligible for

defense and indemnification.       The Attorney General parsed the original

complaint and agreed to defend and indemnify the following claims:

             failing to conduct a criminal investigation (including
              failing to monitor evidence of stalking, failing to
              conduct a proper internal affairs investigation and
              failing to prohibit discriminatory or disparate
              treatment of Tamara [Wilson-]Seidle) and prosecute
              Philip Seidle . . . ;

             failing to provide law enforcement protection to a
              victim of domestic violence . . . [;]

             failing to respond properly at the scene . . . ;

             failing to supervise at the scene . . . ;

             failing to file (or assist Tamara Wilson-Seidle in
              filing) a restraining order against Philip Seidle. . . [;]

                                                                           A-5650-16T4
                                          4
             failing to follow the New Jersey Attorney General
              Guidelines to the extent the claim alleges a failure
              to conduct a criminal investigation and/or prosecute
              ....

However, the Attorney General refused to defend and indemnify claims related

to what he determined were a prosecutor's administrative functions:

             failing to properly supervise, monitor, train, retain,
              and discipline officers . . . ;

             permitting and allowing Philip Seidle to remain
              employed . . . ;

             permitting and allowing Philip Seidle to possess a
              service weapon, or any weapon . . . ;

             failing and refusing to keep Philip Seidle disarmed
              ...;

             permitting Philip Seidle to be reinstated [following
              a previous suspension] . . . ;

             failing to follow the New Jersey Attorney General
              Guidelines for handling domestic violence
              complaints and incidents involving law enforcement
              (with the exception of any claim for failure to
              conduct a criminal investigation and/or prosecute)
              ...;

             returning Philip Seidle's service weapon . . . [;]

             failing to conduct an administrative investigation
              ....

The MCPO and Gramiccioni appealed. A-5650-16T4.

                                                                       A-5650-16T4
                                       5
      Meanwhile, on October 2, 2017, the Estate filed its first amended

complaint and added former Monmouth County assistant prosecutors Schweers,

Seely and Incremona (AP defendants) as defendants.            The first amended

complaint alleged that in 2012 the Neptune Township Police Department, the

MCPO, Gramiccioni and the AP defendants disciplined, suspended and seized

Seidle's services weapons because he cancelled a dispatch call from Wilson-

Seidle related to domestic violence.         Seidle was found unfit for duty and

underwent counseling. The first amended complaint further alleges that months

later, the Neptune Township Police Department, the MCPO and Gramiccioni

reinstated Seidle and returned his weapons, notwithstanding escalating domestic

violence.   The complaint also alleges Gramiccioni, Schweers, Seely and

Incremona failed to take mandated action in response to observed warning signs

of domestic violence and provide assistance to the victim.

      The AP defendants sought defense and indemnification from the Attorney

General. On October 27, 2017, the Attorney General declined their request,

because the decisions related to Seidle's employment status, the return of his

service weapons, and the failure to keep Seidle disarmed were related to the

prosecutors' administrative functions.       The AP defendants filed a notice of




                                                                         A-5650-16T4
                                         6
appeal. A-1714-17. We consolidated the AP defendants' appeal with A-5650-

16.

      On April 20, 2018, United States District Court Judge Michael Shipp

dismissed with prejudice the Estate's claims in the first amended complaint

against the MCPO and Gramiccioni in their official capacities and in connection

with their law enforcement investigatory functions. The Estate filed a second

amended complaint, and the MCPO and Gramiccioni again requested defense

and indemnification from the Attorney General.        On August 2, 2018, the

Attorney General declined their request and found "the claims asserted in the

[s]econd [a]mended [c]omplaint pertain[ed] to administrative functions for

which [the Attorney General] denied representation in connection with the

initial complaint." Appellants filed a notice of appeal, A-0075-18,1 and we

consolidated that appeal with cases A-5650-16 and A-1714-17.

      On December 11, 2018, Judge Shipp dismissed the Estate's second

amended complaint for failure to plead claims with particularity and noted all



1
  The Attorney General's August 2, 2018 letter was specifically addressed to the
MCPO and Gramiccioni, but the appeal of the decision is on behalf of all five
appellants. Because this distinction is immaterial for our purposes and due to
the significant overlap between the claims at issue, we use "appellants" to refer
to all five parties seeking defense and indemnification from the Attorney
General.
                                                                         A-5650-16T4
                                       7
claims against the MCPO and Gramiccioni connected with their law

enforcement and investigatory functions were previously dismissed with

prejudice. Judge Shipp made no finding as to whether specific actions were

administrative or law enforcement functions.

      Judge Shipp was unable to discern which legal theory the Estate was

alleging against which defendant, as well as the facts associated with those

claims. The Estate was given "one final opportunity to cure the deficiencies" in

their pleadings and it filed a third amended complaint on January 25, 2019. The

third amended complaint alleges appellants permitted the re-arming of Seidle

without condition despite knowledge of his unfitness. Regarding the failure to

train, supervise and discipline, the third amended complaint alleges Gramiccioni

failed to oversee, train and supervise the AP defendants and that the AP

defendants failed to oversee, train and supervise police officers consistent with

the Attorney General's guidelines. The third amended complaint also claims the

AP defendants failed to help Wilson-Seidle obtain a restraining order in

compliance with the Attorney General's guidelines to protect victims of

domestic violence. 2



2
   Appellants' motion to dismiss the third amended complaint is pending in
federal court at the time of this writing.
                                                                         A-5650-16T4
                                       8
      We requested supplemental briefing to clarify how the third amended

complaint affected the consolidated appeals, and we received briefs on March

12, 2019. On March 19, 2019, the Attorney General denied appellants' request

for defense and indemnification related to the third amended complaint. On

April 12, 2019, appellants filed a notice of appeal and subsequently moved to

consolidate with the prior appeals, which we granted. A-3428-18.

      Within this framework, we review each appeal in turn.

                                           I.

      Our first inquiry is whether the Attorney General properly denied defense

and indemnification to the MCPO and Gramiccioni for actions related to Seidle's

continuing employment, the return of Seidle's service weapons, the failure to

follow the Attorney General's guidelines for handling domestic violence

complaints and the failure to conduct an administrative investigation.

      "We review the Attorney General's administrative determination in

accordance with a deferential standard of review." Lavezzi v. State, 219 N.J.

163, 171 (2014). The Attorney General's action carries a "strong presumption

of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186

N.J. 5, 16 (2006) (quoting City of Newark v. Nat. Res. Council, 82 N.J. 530,

539 (1980)). We will "not reverse the Attorney General's determination unless


                                                                         A-5650-16T4
                                       9
it is arbitrary, capricious or unreasonable or it is not supported by substantial

credible evidence in the record as a whole." Lavezzi, 219 N.J. at 171 (quoting

Prado v. State, 186 N.J. 413, 427 (2006)). "Moreover, '[a] reviewing court may

not substitute its own judgment for the agency's, even though the court mi ght

have reached a different result.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle

Comm'n, 234 N.J. 150, 158 (2018) (alteration in original) (quoting In re

Stallworth, 208 N.J. 182, 194 (2011)). Although we defer to an administrative

agency's findings of fact, "to the extent that the Attorney General's

determination constitutes a legal conclusion, we review it de novo." Lavezzi,

219 N.J. at 172.

      The Attorney General owes defense and indemnity to "State employee[s]."

N.J.S.A. 59:10-1.    County prosecutors, like appellants herein, occupy the

"hybrid role" of serving both the State and county. Lavezzi, 219 N.J. at 174-75.

When county prosecutors exercise their law enforcement authority, they are

acting on behalf of and accountable to the State. N.J.S.A. 2A:158-4; Lavezzi,

219 N.J. at 174; see also Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996)

("It is well established that when county prosecutors execute their sworn duties

to enforce the law by making use of all of the tools lawfully available to them

to combat crime, they act as agents of the State."). When county prosecutors


                                                                         A-5650-16T4
                                      10
"perform administrative tasks unrelated to their strictly prosecutorial functions,

such as a decision whether to promote an investigator, the county prosecutor in

effect acts on behalf of the county that is the situs of his or her office." Lavezzi,

219 N.J. at 175 (quoting Coleman, 87 F.3d at 1499).

       In Wright, our Supreme Court explained the Attorney General must

defend and indemnify county prosecutors "for the tortious actions" committed

"in the performance of their law enforcement duties." 169 N.J. at 452. However,

when county prosecutors are sued for actions performed while carrying out

administrative tasks, they are not considered "agents" or "officers" of the State

and no defense and indemnification is owed. Ibid. In Wright, the county

prosecutor was entitled to indemnification because the alleged wrongs occurred

during the investigation, arrest and prosecution of a criminal defendant. Id. at

453.

       The Lavezzi Court explained the distinction between law enforcement and

administrative actions:

             the question is not whether the underlying liability has
             any nexus to law enforcement; a personnel or
             organizational decision is deemed administrative even
             if it affects the manner in which the prosecutor's office
             administers its law enforcement responsibilities.
             Instead, the test is whether the act or omission of the
             county prosecutor's office and its employees that gave
             rise to the potential liability derived from the

                                                                             A-5650-16T4
                                        11
            prosecutor's power to enforce the criminal law, and
            constituted an exercise of that power.

            [219 N.J. at 178 (emphasis added).]

To "derive[] from the prosecutor's power to enforce the criminal law" refers to

core prosecutorial functions, such as investigation, seizure of evidence and

prosecution. Id. at 178-79. It also includes the supervision and training of

subordinate prosecutors, police officers and detectives exercising the same law

enforcement authority. See Van de Kamp v. Goldstein, 555 U.S. 335, 344

(2009) (United States Attorney's Office entitled to § 1983 immunity because the

failure to maintain a database to track impeachment material, while an

administrative task, was "directly connected with the conduct of a trial").

      The plaintiffs in Lavezzi sued the Essex County Prosecutor's Office for

destruction of evidence seized and then neglected in storage. Id. at 166. Our

Supreme Court was careful to draw the line between law enforcement and

administrative functions. Id. at 179. If the plaintiffs' property was damaged at

the conclusion of a criminal investigation, the retention of the property

"derive[d] from and directly relate[d] to the [county prosecutor's ] law

enforcement function[.]" Ibid. However, if the plaintiffs' property was stored

in a facility at the direction of the county, and the property damage resulted from



                                                                           A-5650-16T4
                                       12
the condition or maintenance of the county facility, the claim was derived from

an administrative function. Id. at 180.

      Upon becoming aware Seidle was the subject of a domestic violence

complaint, appellants were required to oversee the return of Seidle's service

weapons. Pursuant to Attorney General Law Enforcement Directive No. 2000-

3 (Directive), county prosecutors must investigate police officers who are

alleged to have committed acts of domestic violence to determine whether the

officer should be permitted to carry a service weapon. Attorney General, Law

Enforcement Directive No. 2000-3, at 2-3 (Sept. 1, 2000). When an officer's

service weapon is seized, absent a court order, the county prosecutor may

authorize return of the service weapon subject to certain conditions.

      Appellants argue compliance with the Directive is a law enforcement

function and point to the Directive's introduction, which, in part, reads "[a]ll law

enforcement agencies and law enforcement officers in the State are required to

cooperate with the Attorney General to secure the benefits of a uniform and

efficient enforcement of the criminal law[.]" Directive, at 1. We disagree.

      Prosecutors have two separate obligations pertaining to a police officer

alleged to have committed domestic violence. One is classic law enforcement,

i.e., the obligation to investigate and enforce criminal laws, including instances


                                                                            A-5650-16T4
                                        13
of domestic violence. N.J.S.A. 2C:25-19. The second is the obligation to

maintain control over the weapons seized from officers and to determine when

and if the officers should be re-armed and allowed to serve as an officer.

Directive, at 3-5. The Attorney General acknowledged and agreed to defend and

indemnify appellants as to any allegations within the former category but not

the latter, because the oversight and eventual return of seized weapons is an

administrative, rather than prosecutorial function of the prosecutor's office.

      Indeed, in New Jersey, all weapons, firearms purchaser identification

cards and permits to purchase a handgun seized under N.J.S.A. 2C:25-21(d)(1)

must be delivered to the county prosecutor in the county where the alleged

domestic violence occurred. The determination of whether the weapon will be

returned is subject to a civil proceeding, not a criminal proceeding, and is an

administrative function of the prosecutor. N.J.S.A. 2C:25-21(d)(3). To that end,

most prosecutor's offices in New Jersey have weapons return units dedicated to

this function.

      Here, compliance with the Directive related to appellants' administrative

duties. The fact that the offender in this case was a police officer does not alter

the analysis. Under the Lavezzi test, the allegations concerning the re-arming

of Seidle fall squarely into the administrative category.


                                                                           A-5650-16T4
                                       14
      The allegations pertaining to the failure to supervise, monitor, train,

retrain and discipline and Seidle's continued employment also fall into the

administrative category. Coleman, 87 F.3d at 1499. Appellants assert, pursuant

to Van de Kamp, that supervision of the police force is a prosecutorial function.

However, the Estate has not alleged conduct that arose in connection with an

instance of failure to supervise, train or discipline "intimately associated with

the judicial phase of the criminal process." Van de Kamp, 555 U.S. at 345

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Unlike Van de Kamp,

the allegations in the first amended complaint of failure to supervise, monitor,

train, retrain and discipline have no nexus to any criminal investigation or

prosecution. Therefore, we discern no error in the decision by the Attorney

General to deny defense and indemnification for liability arising from such

functions, and we affirm the July 6, 2017 order.

                                       II.

      We now turn to the second appeal, A-1714-17, in which the AP defendants

appeal from the Attorney General's October 27, 2017 letter denying defense and

indemnification for the Estate's first amended complaint.

      In his letter, the Attorney General reiterated his commitment to defend

certain claims but not others pursuant to Wright. However, we discern error in


                                                                         A-5650-16T4
                                      15
the Attorney General's ultimate determination to deny relief because certain law

enforcement-related claims, which the Attorney General agreed to cover in the

first instance, were re-pled in the first amended complaint.

      Appellants are entitled to defense and indemnification with regard to the

allegations arising from the exercise of their law enforcement authority. Though

purportedly dismissed with prejudice, some previously dismissed allegations

were simply rearranged and incorporated into the remaining claims against the

appellants. Defense and indemnification by the State is still warranted for those

allegations because appellants were still required to appear and seek dismissal .

We include a paragraph-by-paragraph comparison in our discussion below.

Accordingly, notwithstanding our deferential standard of review, we disagree

with the Attorney General's conclusion denying coverage for all claims in the

first amended complaint as a matter of law and reverse the October 27, 2017

order in part.

                                       III.

      In A-0075-18, appellants appeal from the August 2, 2018 blanket refusal

to defend and indemnify them from claims contained in the second amended

complaint. In denying the request, the Attorney General reasoned that because

Judge Shipp dismissed all claims related to law enforcement and investigatory


                                                                         A-5650-16T4
                                      16
functions, any remaining claims in the second amended complaint necessarily

pertained to administrative functions.

      However, the following side-by-side comparison of the original, first and

second amended complaints demonstrate certain law enforcement-related

allegations, previously deemed covered by the Attorney General, were again

pled in the first and second amended complaints.

              Complaint         First Amended      Second Amended
            Paragraph No.         Complaint           Complaint
                                Paragraph No.       Paragraph No.

                27(d)               29(d)               29(d)
                  65                  67                  78
                  66                  68                  79
                  68                  70                  81
                  74                  76                  89
                  76                  78                  91
                  77                  79                  92
                  78                  80                  93
                  82                  84                  97
                  85                  87                 100
                  90                  92                 108
                 101                 103                 145
                 102                 104                 160
                 103                 106                  --
                 108                 111                  --
            114(9), (10) &      117(9), (10) &       202(4) & (9)
                 (11)                (11)
                 116                 119            179(10) &(11);
                                                      119 (listed
                                                   between 202 and
                                                         203)


                                                                       A-5650-16T4
                                         17
                  142                 145                   --
                  144                 147                   --


      Many of the allegations were identical throughout all three complaints.

For some claims, the only difference was the paragraph or sub-paragraph they

fell under. Thus, the Attorney General should have scrutinized the first and

second amended complaints and provided coverage to the extent it found claims

it agreed to cover in the original complaint were re-pled. Therefore, we reverse

the August 2, 2018 order in part.

                                      IV.

      On March 19, 2019, the Attorney General issued a final agency

determination, A-3428-18, by way of written decision, denying appellants'

request for defense and indemnification as to the third amended complaint. In

dismissing the first and second amended complaints without prejudice for lack

of specificity, Judge Shipp also dismissed with prejudice the portions of those

complaints that related to appellants' law enforcement and investigatory

functions.

      In the third amended complaint, under the section entitled "Nature of the

Action," the Estate identifies each appellant and states "[a]t all relevant times

[appellants] were acting in an administrative capacity as opposed to a law


                                                                         A-5650-16T4
                                      18
enforcement or investigatory function[.]" The Attorney General seized on this

language and issued a blanket denial of defense and indemnification for all

claims in the third amended complaint.         However, the Attorney General

overlooked portions of the third amended complaint where allegations it

originally agreed to provide defense and indemnification were scattered among

different areas of the complaint.

      For example, the Attorney General agreed to provide defense and

indemnification for claims related to "fail[ure] to file (or assist Tamara Wilson-

Seidle in filing) a restraining order against Philip Seidle[.]" This same claim

was made again in the third amended complaint against the AP defendants in

paragraphs 514, 527, 539, and 551, yet the Attorney General declined to provide

defense and indemnification. We realize the bulk of the claims brought against

appellants in the third amended complaint concern compliance with the

Directive, which we have explained relates to appellants' administrative duties.

Nevertheless, appellants were entitled to defense and indemnification, no matter

how little, for claims related to exercise of their law enforcement authority.

      Ultimately, we conclude the Attorney General properly applied Wright

and correctly determined which claims in the original complaint pertained to

appellants' law enforcement or administrative functions. However, the Attorney


                                                                          A-5650-16T4
                                       19
General was required to, but did not, apply the same scrutiny to the subsequent

amended complaints. We reverse the Attorney General's denial of defense and

indemnification as to the first amended, second amended and third amended

complaints to the extent that certain allegations, previously determined by the

Attorney General to relate to the exercise of law enforcement functions, and thus

covered under Wright, were re-pled notwithstanding their purported dismissal

with prejudice.

      At this point, the most realistic and practical resolution is for appellants

to make an application in the Law Division, pursuant to our ruling, for

reimbursement to recover the portion of the costs incurred in the defense of those

allegations relating to the exercise of law enforcement authority previously

deemed covered by the Attorney General but for which defense and

indemnification was later disclaimed. See Lavezzi, 219 N.J. at 180 (noting "the

State may pursue a claim against the County for reimbursement of all or part of

its costs incurred in the defense and indemnification of the [p]rosecutor's [o]ffice

employees").

      Affirmed in part, reversed in part.




                                                                            A-5650-16T4
                                        20
