Attorney General Not Obligated to Indemnify Officers of County Police Force

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The New Jersey Supreme Court has ruled that officers in the Union County Police Department are not entitled to defense or indemnification from the state in a lawsuit tied to a polygraph test they administered for the Union County Prosecutor's Office.

Under state statutes, each county—and not the attorney general—is responsible for defending and potentially indemnifying its police officers, the court said in Kaminskas v. State of New Jersey. The justices, in a 7-0 ruling, affirmed an Appellate Division ruling that said each county must provide a defense to members of a county police department for any legal proceeding arising out of the performance of their duties.

The ruling means that Union County will have to pay to defend John Kamiskas and Daniel Vaniska in a civil suit filed by Emmanuel Mervilus over a polygraph test Kamiskas administered.

Union County argued its officers should be indemnified by the state under a 2001 state Supreme Court ruling, Wright v. State. In that case, the Supreme Court ruled the state was obligated to pay for the defense of a group of Somerset County Prosecutor's Office employees who were sued for false arrest and other claims. That ruling noted the "dual or hybrid status" of county prosecutors and their subordinates, and said that group performs a function that has been traditionally the responsibility of the state and for which the attorney general is ultimately answerable.

But the state Attorney General's Office argued the Wright decision should not govern the present case. According to the attorney general, the Wright court extended a state-funded defense and indemnification to county prosecutors and their employees because the attorney general maintains supervisory control over county prosecutors, and because county prosecutors' employees are not guaranteed defense and indemnification from the county.

Justice Faustino Fernandez-Vina, writing for the court in the Kaminskas case, said the officers urging that the Wright case apply here ignore the fact that a statute specifically governs the defense of county police officers in situations like the present one. Under N.J.S.A. 40:14-117, because Kaminskas and Vaniska are defendants in a civil action that arises out of the performance of their duties, Union County is responsible for their indemnification.

"Because the Legislature has clearly identified the county of employment as the entity responsible for defending and indemnifying county police officers, our inquiry ends," Fernandez-Vina wrote.

Moreover, to extend Wright's function-based analysis to the officers in Kaminskas would "frustrate the detailed liability structure the Legislature has enacted, which delineates and allocates the responsibilities to defend and indemnify different categories of employees to specific government entities," Fernandez-Vina said.

Assistant Union County Counsel Steven Merman, who represented Kaminskas, Vaniska and the Union County Police Department, did not return a reporter's call about the case. Nor did County Counsel Robert Barry. The Attorney General's Office declined to comment.

Mervilus was convicted of robbery and assault and served three years in jail after Kaminskas was allowed to opine on his guilt during testimony before a jury. Mervilus' conviction was later overturned after the Appellate Division said letting Kaminskas offer an opinion on guilt was reversible error. Mervilus was retried in 2013 and acquitted.

Authorities accused Mervilus of holding down a victim, Miguel Abreau, while another man robbed and stabbed him. Kaminskas administered a polygraph to Mervilus. Mervilus denied being involved in the attack, but Kaminskas concluded he was not telling the truth.

Although Kaminskas worked for the Union County Police Department, he often performed polygraph tests for the Union County Prosecutor's Office because that agency did not have anyone on staff who was trained to use a polygraph. Vaniska, the chief of the Union County Police Department during the relevant period, was sued in his supervisory capacity.

At Mervilus' trial, Kaminskas said he believed the defendant was lying about his involvement in the crime. As for the polygraph, he said it was “not just a lie detector but also a truth detector.” Mervilus was sentenced to 11 years in prison in March 2008.

But an appeals court panel, overturning the conviction in February 2011, said Kaminskas gave evidence “designed to convince the jury that polygraph tests are infallible,” and impermissibly used the words “innocent” and “guilty” over and over. The panel also objected to Kaminskas testifying that prosecutors routinely dismiss charges against large numbers of defendants who successfully pass polygraph tests. In June 2011 Mervilus was released from custody and in January 2013, after a second trial, he was acquitted of all charges. Mervilus filed suit against Kaminskas, Vaniska and others in November 2014 and the case is still pending before U.S. District Judge Esther Salas.