The state's obligation to defend and indemnify county prosecutors for alleged tortious conduct does not extend to a municipal police officer who was sued over his actions while “on loan” to a regional task force, the Appellate Division has ruled.

The court in Massmino v. State of New Jersey affirmed an agency ruling by the Attorney General's Office withholding the state's defense and indemnification of a Berkeley Heights police officer assigned to the Union County Prosecutor's Office's Guns, Gangs, Drugs and Violent Crimes Task Force.

In holding that the municipal police officer was not entitled to indemnification by the state, the appeals court cited Township of Edison v. Hyland, an Appellate Division case from 1978 holding that “municipal employees hired and paid by the municipalities and assigned to the prosecutor for the performance of a special investigative function cannot be considered state employees within the ambit of N.J.S.A. 59:10A1.”

The appeals court in Massmino noted that the Supreme Court has granted certification in an appeal of a similar ruling by the Appellate Division from September 2017, Kaminskas v. State of New Jersey. In Kaminskas, the appellate court affirmed the attorney general's refusal to defend and indemnify an officer in the Union County Police Department, John Kaminskas, sued over his actions while performing a polygraph test for the Union County Prosecutor's Office.

But, the Massmino court said, “unless and until the Court provides further guidance, we are bound by existing precedent and the persuasive authority of our decision in Hyland.”

Detective Jay Massmino of the Berkeley Heights Police Department, along with members of the Union County Prosecutor's Office, were sued in state court on claims of excessive force and false arrest after executing a search warrant at a residence in Plainfield. That case is Davis v. Union County.

The Attorney General's Office, pursuant to a state statute and case law, agreed to Union County's request that it defend and indemnify the task force members, with the exception of Massmino.

The county appealed the exclusion of Massmino. But Appellate Division Judges Carmen Messano and Richard Geiger, in the Aug. 24 unpublished decision, affirmed the agency decision.

The panel said employees of county prosecutors “are in a hybrid employment status and may be deemed state employees for defense and indemnification purposes when performing certain functions, including the 'investigation, arrest and prosecution' of individuals.”

But no court has extended the obligation to defend and indemnify prosecutorial employees to municipal “on loan” officers, the panel said.

In Kaminskas, the Supreme Court granted certification in December 2017, but no argument has been held yet. The question on appeal is, “Were these Union County police officers entitled to a defense by the Attorney General for their conduct while performing a polygraph for the Union County Prosecutor?”

Underlying the indemnification battle in Kaminskas is a federal civil rights suit lodged by Emmanuel Mervilus, who was convicted of robbery, aggravated assault and weapons offenses after Kaminskas was allowed to opine on his guilt in testimony before a jury. The conviction was overturned, but only after Mervilus spent three years in prison.

Last March, U.S. District Judge Esther Salas of the District of New Jersey denied motions by Union County and the individual defendants to dismiss the suit, finding that Mervilus pleaded sufficient facts to make out a case. Salas also rejected defense claims of sovereign immunity, and a presumption of immunity for witnesses.

Steven Merman, assistant Union County counsel, represented the county in the Massmino case. He could not be reached for comment on the decision, and his office said no one else was available to comment on behalf of the county.

The state was represented by Deputy Attorney General Daniel Vannella. The Attorney General's Office did not respond to a request for comment about the ruling.