Court affirms dismissal of Franklin officer's suit against Sussex Prosecutor's Office

A Franklin Borough lieutenant suspended in 2018 for misusing steroids in what he called a conspiracy by other officers to further their own agendas has lost an initial bid at suing the Sussex County Prosecutor's Office for its alleged involvement in the apparent scheme.

In a court ruling on Tuesday, the state Appellate Division confirmed a lower court judge's decision to toss the lawsuit filed by veteran officer Jeffrey Smith. But in a reversal, the appeals court panel of two judges will give Smith an opportunity to refile an amended complaint that better establishes what unlawful acts or wrongs he says were carried out against him by the prosecutor's office.

And Smith plans on doing just that, George Daggett, his attorney, said by phone just hours after the opinion was released.

Smith, a then-17-year veteran in the borough department, remains suspended without pay since January 2019 after he failed a random drug test for steroid use and was deemed unfit for duty. Smith claims other officers, including the chief, knew he had a medical condition for low testosterone and took steroids. But his former attorney, Jeffrey Warden, told the New Jersey Herald at the time his suspension was due, in part, to obtaining a controlled dangerous substance by fraud, falsifying reports, and for being insubordinate and untruthful.

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Smith initially filed suit against the borough and several officers in 2019 for their "malicious" actions, which he said was done to further their own agenda. That case is in mediation, according to Daggett, who represents Smith in both filings. In 2020, Smith's complaint against the prosecutor's office claimed First Assistant Prosecutor Gregory Mueller had assisted the Franklin Borough Police Department in an "illegal conspiracy" to remove him from the department by unlawfully releasing a letter to the New Jersey Herald through an Open Public Records Request.

State Superior Court Judge Noah Franzblau, in a written decision in March 2021, found the release of the memo did not violate any law enforcement directives and ordered the suit be dismissed, granting an application by a state deputy attorney general representing the Sussex County Prosecutor's Office. He concluded the suit should have been tossed permanently. Franzblau declined to reconsider, which led Daggett to appeal the decision to the state Appellate Division.

The appeals panel said they could not glean what unlawful acts or wrongs Smith was claiming — they called the lawsuit "vague" — and suggested that despite Daggett's "inartfully pleaded" complaint, dismissal of a suit for failing to show cause should generally be dismissed, but with an opportunity to refile down the road.

In initial court filings, Daggett said he was willing to settle the case prior to trial for $1.75 million.

The letter

The letter, Daggett said, made public concerns that the Sussex County Prosecutor's Office had with Smith and another officer, Jeffrey Snyder, who in 2020 settled a lawsuit against the police department and retired. By releasing the memo to the press, which contained "confidential information," Mueller had violated a 2019 New Jersey Attorney General directive as well as violated Smith's rights under federal law restricting release of medical information, Daggett had petitioned to the court.

The letter provided to the Herald had the officers' names redacted, although the identities of the two suspended officers were known at the time. It did not disclose medical conditions.

The contents of the January 2020 letter, sent by Mueller to Franklin Police Chief Gregory Cugliari, was to advise that Smith would not be used as a witness in court should the Franklin police decide to put him back on the force — a designation known as a "Giglio officer." The term stems from a U.S. Supreme Court decision that legally requires prosecutors disclose any misconduct or compromising information regarding a police or civilian witness to a defense attorney. Should Smith make an arrest or handle evidence as an officer moving forward, for example, prosecutors will not use him as a witness due to issues with his credibility.

Mueller, when contacted by phone Wednesday, said it is his position and the position of the prosecutor's office that there was "absolutely no violation" of the attorney general's directive.

"Our office acted in conformity with the (attorney general's) directives," he added.

The Attorney General's Office did not respond to a request for comment.

In 2020, the state Attorney General's Office released the Major Discipline Directive in a move intended to empower the public officers accountable for misconduct and increase transparency in policing. The directive makes public the name, actions taken and reason for termination, suspension or demotion of the officer. Smith, however, is not named since his suspension occurred prior to the directive being implemented.

Smith believes officers knew he was taking replacement therapy for low testosterone, a medical condition called hypogonadism, when he was "suspiciously" chosen as the only officer in the department to undergo a random drug test in mid-2018. Daggett claims it was a ploy by several officers to ruin Smith's standing in the department: Cugliari, who was just under Smith in seniority, wanted to be chief since then-Chief Eugene McInerney was retiring and then-Detective Sgt. Nevin Mattessich wanted to succeed Cugliari as lieutenant. Both have since done so.

In 2018, then-New Jersey Attorney General Gurbir Grewal's 2018 directive mandating random drug testing required 10% of a police department to chose, at random, to drug test an officer. Daggett claims there should have been two officers chosen, since the department at 16 employed at the time, and believed the process had been rigged since the names drawn from a hat were later destroyed.

The prosecutor's office had considered but ultimately declined to criminally charge Smith with obtaining a controlled dangerous substance by fraud — Mueller said in a letter submitted in court records by Daggett that Smith's "mandatory loss of employment and collateral consequences" were a substantial punishment alone — and left it at the discretion of the Franklin chief to determine administrative actions.

It remains unclear as to when a disciplinary hearing, and if it will be open to the public, will take place.

Lori Comstock can also be reached on Twitter: @LoriComstockNJH, on Facebook: www.Facebook.com/LoriComstockNJH or by phone: 973-383-1194.

This article originally appeared on New Jersey Herald: Franklin NJ cop's lawsuit dismissal affirmed by court