On Jan. 14, 2014, Rockaway Township police officer, Clifton Gauthier, was suspended, with pay, and charged, in a disciplinary proceeding, with interfering with the prosecution of a family member charged with driving while intoxicated. On Sept. 11, 2014, defendant was indicted for second degree official misconduct, N.J.S.A. 2C:30-2, and third degree tampering with a witness, N.J.S.A. 2C:28-5(a). On Sept. 12, 2014, defendant was suspended, without pay, pending the disposition of the criminal charges. The second degree charge was dismissed on June 6, 2016, when defendant was admitted into the pretrial intervention program (PTI), N.J.S.A. 2C:43-12 to 22, which permits a defendant to be placed on court supervised probation.

On Jan. 23, 2017, upon his successful completion of PTI, the indictment was dismissed. Defendant was re-instated to his job and received back pay from his PTI completion date, Jan. 23, 2017, to his reinstatement date of March 8, 2017. However, defendant's request for back pay for the period of time that his criminal charges were pending, from Sept. 12, 2014, to Jan. 23, 2017, was denied by the Civil Service Commission.

In affirming this denial of back pay, the court held that to be entitled to back pay while criminal charges are pending, there must be a "favorable disposition" of the charges. Although, for criminal purposes, completion of PTI is a favorable disposition for the defendant, it is not so considered for Civil Service purposes. In the Matter of Clifton Gauthier, 2019 WL 6332962 (Nov. 27, 2019).

More specifically, the court pointed out that in order for a police officer to be entitled to back pay for the period of time while his criminal charges were pending, the charges must be dismissed, the prosecution terminated, or the officer is found not guilty. N.J.S.A. 40A:14-149.2.  The court reasoned that when this statute "was enacted in 1973 (it) did not include PTI, a diversionary program adopted in 1990." Since then, the legislature has never seen fit to amend the statute to specifically include a successful PTI completion as entitling a defendant to back pay.

The court noted that, historically, prior to the enactment of N.J.S.A. 40A:14-149.2, the common law provided that a police officer "who renders no service is not entitled to prevail in an action seeking compensation." However, the Gauthier court noted that when the legislature enacted this statute, it stepped "outside the common law rule (of 'no work, no pay') for those vindicated from the taint of an alleged criminal act."

This issue was somewhat clarified in 2001 when the court held, in an unpublished decision, that "a favorable disposition of criminal charges was necessary in order for a municipal police officer to be entitled to back pay." Grill v. City of Newark Police Department, No. A-6224-98 (App. Div. 2001). However, the Gauthier court held that a favorable disposition means "a final determination on the merits in the defendant's favor, (i.e.) … exculpation and not some lesser degree of success, (i.e.) … to free from blame or accusation: esp. to prove not guilty."

For these reasons, the court held that successful completion of PTI "cannot be regarded as the equivalent of a judgment of acquittal or an otherwise favorable termination of the criminal proceeding."

Based upon personal experience, it appears that the defendant in this matter was attempting to turn a very worthwhile program (PTI) on its head. PTI was never intended to penalize a governmental entity (and eventually its taxpayers) by requiring it to pay a police officer, charged with a crime, for not working. This author, almost 25 years ago, pointed out that the purpose of PTI was to permit certain offenders, who qualified for PTI, to receive rehabilitative services and avoid criminal prosecution. See State v. Baynes, 287 N.J. Super. 467, 472 (Law Div. 1995). It was intended to give an eligible defendant one break; not two. Nor was it intended to financially reward a defendant for not working while criminal charges were pending against him or her.

Defendant, in Gauthier, should be commended for successfully completing PTI. The PTI program should be commended for accomplishing its rehabilitative purpose in allowing Gauthier to be reinstated as a police officer. Game over with a win/win. However, it would seem that, by attempting to get paid for not working during that period of time while his criminal charges were pending, defendant was looking the proverbial gift horse in the mouth.

Counsel for Rockaway Township commented that the Appellate Division made a reasonable and appropriate determination.

Counsel for defendant stated that the Appellate Division missed the mark in its interpretation of the governing statutes.

Because defendant filed a petition for certification on Dec. 12, 2019, the Attorney General's office was unable to comment.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.