Police Officer's Lawsuit Could Be Resolved Soon
Attorney outlines settlement process, how much input municipalities have in police matters.
A settlement for a lawsuit filed by a former Madison police officer against the police chief and borough could be resolved in the next several weeks, borough attorney Matthew Giacobbe said at the last Borough Council meeting.
In response to a resident's question about a report the governing body authorized its insurance carrier to settle the claim, Giacobbe said the matter was discussed in executive session and details can't yet be disclosed.
"What the governing body approved was an approval for the insurance carrier to enter into a settlement to resolve the matter," Giacobbe said. "It has not been fully resolved yet, so we can't disclose that."
He said Madison's insurance carrier wanted to settle the matter, and the borough consented.
"I disclosed to council the parameters of the proposed settlement based on the insurance carrier, and got the authorization from the council to permit the insurance carrier to resolve the claim, but other than that I can't disclose it because it hasn't been resolved yet," Giacobbe said. "We are in the process of finalizing the various legal documents that go along with the settlement, including court papers," he said at the last council meeting.
The lawsuit against Madison and Police Chief John Trevena was filed by Anthony Kaspereen, a Madison patrolman for 12 years whose disability retirement was approved effective last March. He filed the lawsuit last June, claiming he suffers from post-traumatic stress disorder due to a patrol assignment he says was given as "punishment detail" by the chief in July 2010. His wife, Jennifer Kaspereen, is also a plaintiff in the lawsuit, claiming loss of companionship.
Borough Administrator Ray Codey has said the borough's exposure for parts of the settlement covered by its insurance policy is $70,000—a $20,000 deductible for legal defense fees and up to $50,000 for settlement payments, that is, 20 percent of payments up to the first $250,000.
The lawsuit claims punitive damages, which are not covered under the borough's policy, but it wasn't known at the time if that would be a factor in the settlement.
At the May 30 meeting, Sam Cerciello, a former councilman, asked who is in charge of the police department and what recourse a municipality has if a police chief does something wrong.
Cerciello ended his comments saying, "This chief did something wrong. Do we fire him, or how does it go? What's the process?"
"That employee has not been Riced, it's not appropriate for the governing body to respond," Giacobbe said.
The borough has said in court documents Kaspereen's assignment was a regularly-scheduled assignment the chief was within his rights to give, and denied it was given as punishment. Trevena did not respond to an email seeking comment last week.
Personnel matters are discussed in closed session, and affected employees must be given what is known as a Rice notice to let them know ahead of time and give them a chance to request a public hearing.
Giacobbe said he wouldn't discuss any particular case or employee, but said, according to law, the governing body and other administrators can't interfere with day-to-day operations of the police department, but can set the department's budget and table of organization. He said any alleged impropriety by chiefs could be looked at by county prosecutor's offices, under guidelines set by the Attorney General's Office, but governing bodies can't conduct any interviews or investigations themselves.
Kaspereen's lawsuit alleges he was assigned to patrol Madison by foot in 90-degree heat, starting July 3, 2010, as punishment for using his sick days for sinus problems. The lawsuit alleges the sinus condition was a disability and Kaspereen was being discriminated against for his disability.
According to the lawsuit, on July 12, 2010, Kaspereen passed out in his home and was rushed to the emergency room, where the hospital determined Kaspereen suffered from dehydration caused, in part, by the patrol assignment.
Emails that were supplied by the borough in discovery, and are on file with the lawsuit and attached to this article as images, show the chief asked a lieutenant to investigate Kaspereen's fitness for duty on July 2, 2010, after Kaspereen called out sick, saying either Kaspereen hadn't disclosed a medical condition or was abusing sick time.
"Once again his absence is cause for overtime," the chief wrote.
The same night, Kaspereen's supervisor emailed squad sergeants, saying the chief ordered Kaspereen to an assignment that involved patrolling downtown by foot for nine hours, from 7 p.m. to 4 a.m.
The email, sent by Sgt. Joseph Cirella, said per the chief's orders Kaspereen was not to be used for any response and, if additional manpower was needed, the department should call neighboring towns.
It also said Kaspereen was not to be given a patrol vehicle, and anyone assisting or distracting Kaspereen during his assignment would be disciplined, too. The assignment wasn't to be a topic of discussion in the department, and any requests by Kaspereen to meet with the chief were denied, it said.
Patrolman Anthony Maccario, the president of the police union, gave an account of his observations and his involvement in the matter in a deposition on March 26. He provided the deposition at the Morristown law office of Kaspereen's attorney, Kevin Barber, of Niedweske Barber Hager.
Maccario said he saw Kaspereen's assignment as an inappropriate disciplinary action and filed his first grievance in his seven years as PBA president on Kaspereen's behalf, according to a transcript of the proceeding.
In his deposition, Maccario said the department does have what is called the "Town Man" post, which involves walking the town and helping pedestrians cross the street, but the assignment given to Kaspereen was unlike anything he had seen.
Maccario said it was "unbelievable" the chief would order officers not to assist another officer and agreed when Barber asked if that posed a danger to Kaspereen, other officers and Madison residents. He also agreed with Barber that it was "an illegal order."
Regarding the instruction to call for mutual aid instead of Kaspereen, Maccario said it was "unprofessional" and "dangerous." Maccario said some officers told him there were times it would have been helpful to have Kaspereen respond, and there was a time Kaspereen responded to a reported dispute on foot because other officers weren't available. Maccario said having a car would have made the response time faster, according to the transcript.
Maccario said all of this was happening at a time when there was low morale in the department due to diminished staffing, and a task force recently was disbanded due to insufficient manpower.
He also went over the steps he said were taken to attempt to resolve the issue, including a meeting with the chief around July 12, 2010. According to the transcript, Maccario said he was trying to get answers for Kaspereen as to why he was put on "such a ridiculous post."
The chief "basically made a statement referring to the things that Officer Kaspereen says, the way he (Kaspereen) apparently mocks the way he (the chief) assigns people," Kaspereen said in his deposition.
"He said that Officer Kaspereen thinks that these things don't get back to me, I hear everything, and then he asked me to forward to Officer Kaspereen if he couldn't perform this duty as assigned, to turn in his badge and his gun and put something in writing that said he couldn't perform his duties as assigned. And then he issued that statement to tell Officer Kaspereen that if he chose to, as he put it, (expletive) with him, that he was going to lose."
After Kaspereen passed out July 12, 2012, Maccarrio said he talked with Lt. Darren Dachisen about getting him back in a patrol car for health reasons, but was told the chief had made his orders.
Kaspereen said he had a conversation with Kaspereen's supervisor, Cirella, who told him it seemed Kaspereen served the new post well, and would be going back to his regular post, but then "something happened." The lawsuit claims Trevena changed his mind and ordered he be kept on the post after Maccario filed the grievance on July 27 on Kaspereen's behalf.
On July 28, the chief emailed Dachisen: "The meeting I asked you to have with Sgt. Cirella is no longer necessary. Ptl. Kaspereen will remain on his present assignment indefinitely."
Maccario said at one point he discussed the issue with Codey, who said he would advise the chief to place him back on regular duty immediately.
"I really thought that the situation was done at that point," Maccario said. "He (Codey) agreed with me that we were reasonable in our efforts to let this maybe resolve itself before filing (the grievance). The Adminsitrator did not dispute this at all. He didn't say, Anthony, you have no case here. He sat down and he listened to everything."
After reviewing the emails obtained during discovery, the plaintiffs filed to add a retaliation charge to their complaint.
"Following the review of Defendants' initial discovery (specifically Defendant Trevena's emails), it was clear that Defendants retaliated against Plaintiff Kaspereen following his complaint of disparate treatment," the complaint read. "Indeed, the emails from Defendant Trevena, Chief of Police, compellingly demonstrate that he engaged in a pattern of retaliatory conduct aimed at dissuading Plaintiff Kaspereen from pursuing his good faith complaints."