By KATHY CHANG
Staff Writer
EDISON — An acting lieutenant and 22-year veteran of the Edison Police Department — suspended without pay after his alleged involvement to retaliate against a North Brunswick police officer, who arrested another individual for drunk driving — is entitled to receive unemployment compensation benefits, according to a decision by the Appellate Division of the Superior Court of New Jersey.
William H. Gesell, of Edison, was suspended without pay on March 31, 2014, on fourth degree charges of conspiracy and official misconduct along with three other Edison police officers.
On April 21, 2014, the deputy director of the Division of Unemployment Disability Insurance denied Gesell’s application for unemployment compensation benefits, finding him ineligible for benefits because he was unavailable for work commencing on March 30, 2014. Gesell appealed the decision to the Appeal Tribunal.
The township argued that the pending criminal charges were legally sufficient to disqualify Gesell from receiving benefits based on gross misconduct pursuant to state law.
The Appeal Tribunal disagreed with the township’s legal position and found Gesell eligible to receive benefits.
The township appealed to the Board of Review of the state Department of Labor, which then affirmed the Appeal Tribunal’s decision.
The township then appealed to the Appellate Division arguing that the mere production of the two arrest warrants issued against Gesell provided the board with sufficient evidence to conclude Gesell’s alleged actions gave rise to his suspension.
The two-judge panel deciding the appeal stated in a decision on July 21 the burden of proof is on the employer adding that the only competent evidence presented to the board came from Gesell’s testimony to the Appeal Tribunal that he accessed the state police database in “legal legitimate lawful purpose.”
When asked if he planned to retaliate against anyone, Gesell answered, “No, I did not,” and noted that he had been charged for having done so.
Gesell said that as a police officer he is allowed to access the database, but he has to have a legitimate lawful purpose at the time of accessing the database.
The examiner asked if Gesell had a legitimate purpose. Gesell answered, “Yes, however, 18 months later when I was questioned, I couldn’t remember the specific reason, which I don’t think anyone could a year and a half after they ran a person’s plate. And we’re not required to keep notes [as] to why we ran them.”
The appeals court, in its opinion, stated that the township could have called a witness or introduced competent authenticated documents to rebut Gesell’s testimony that the police department does not have an established protocol for police officers to access this particular law enforcement database.
“The Board instead expected mere copies of the criminal charges against Gesell would be sufficient to meet its burden of proof,” the court papers said.
The appellate judges added that the court is “deeply troubled that a municipality in this state would advance such a fundamentally profound misstatement of law.”
“It has been long settled as a rudimentary principle of criminal law, that a criminal complaint executed by a complaining witness or an indictment returned by a grand jury does not have any probative value to determine whether the person so charged is actually guilty of any offense,” the court papers said.
Edison officials said while they respect the Appellate Division, they “respectfully disagree” with its ruling and are reviewing options and will decide shortly whether to seek further review of the issue.
“A sworn law enforcement officer has been charged with several crimes by an outside agency and has been suspended without pay from his duties in the Township,” officials said in a statement, adding that Gesell was subsequently indicted on those charges. “The Township believed, and still believes, the charges by the Middlesex County Prosecutor’s Office, detailing criminal misuse of sensitive data reserved for legitimate law enforcement functions, provides competent evidence establishing gross misconduct.”
On Oct. 24, 2014, a Middlesex County grand jury indicted Gesell along with officers Michael A. Dotro, of Manalapan; Brian Favretto, of Brick; and Victor E. Aravena, of Edison, charging conspiracy and official misconduct. The indictment included 11 counts.
The officers allegedly planned between January 18 and May 1 of 2012 to retaliate against the North Brunswick officer by improperly accessing information about him and performing surveillance of him and his travel habits, according to the Middlesex County Prosecutor’s Office.
In addition, Gesell was charged with unlawfully accessing a police computer system, along with a related count of official misconduct for seeking information on the North Brunswick officer.
An investigation by the prosecutor determined that the retaliation was planned after the North Brunswick police officer arrested a friend of Dotro on a charge of driving while intoxicated.
Dotro subsequently conspired with his three fellow police officers to retaliate against the North Brunswick officer, according to authorities. No actual retaliation was undertaken, however.
The officers are scheduled for trial on Sept. 16 before Superior Court Judge Alberto Rivas.