Forfeiture of Office
By Timothy Smith, Esq.
The public expects law enforcement officers to obey the laws they are charged with enforcing. Under the New Jersey Penal Code, an officer who breaks the law may face more than just the usual criminal sanctions. That officer may also be removed from the force and barred for life from holding any other public office.
The sanctions of forfeiture of office and disbarment from future public employment are set forth in N.J.S.A. 2C:51-2. That statute, by the way, also applies to all other public employees. Its sanctions are triggered by the commission of an offense (1) involving dishonesty, or (2) of the third degree or above, or, quoting the statute, (3) “involving or touching” the officer’s position as a law enforcement officer.
This article concerns the question of what offenses are those “involving or touching” a police officer’s position.
To start, the Penal Code defines an “offense” as a crime or a disorderly person’s offense or a petty disorderly person’s offense. This means that motor vehicle and municipal ordinance violations are not “offenses” under the Code. Nonetheless, because petty disorderly persons violations are “offenses,” even extremely minor wrongdoing might result in these sanctions.
Another provision of N.J.S.A. 2C:51-2 explains that “involving or touching” means that “the offense was related directly to the person’s performance in, or circumstances flowing from, the specific public office, position or employment held by the person.”
In State v. Hupka, the New Jersey Supreme Court closely examined this statutory language. Hupka was both a sheriff’s officer and a part-time police officer. He pleaded guilty to fourth-degree criminal sexual contact. Hupka admitted that he touched the victim’s intimate parts without her consent for the purposes of his own sexual gratification. At the time of the incident, Hupka was neither on duty nor in uniform.
The Supreme Court ruled that Hupka’s reprehensible conduct did not require the sanctions of forfeiture of office and disbarment from public employment. The court noted the following factors. The offense occurred in a private home. The victim was someone Hupka knew personally, as opposed to a member of the public he knew through either of his law enforcement positions. As already mentioned, Hupka was neither on duty nor in uniform when the offense took place. Hupka did not display or utilize any indicia of either of his two offices at any time. Last, the offense was not related to any circumstance that flowed from his having been a sheriff’s officer or police officer.
The court rejected the argument that because the commission of a sexual offense is incompatible with the duties of a law enforcement officer, the commission of such a crime, alone, requires a forfeiture of office. The court also rejected the similar argument that because Hupka had engaged in conduct incompatible with the traits of character expected of a police officer, the offense was one “involving” or “touching” his office.
Hence, and as the forfeiture statute itself indicates, an officer will not be subject to forfeiture merely because he or she is an officer and commits an offense. Rather, there must be some proof that the officer’s law enforcement position was involved in some way in the circumstances of the offense.
Even as to offenses that meet these criteria, there is some leniency built into the statute. That leniency concerns disorderly persons or petty disorderly persons offenses. A court may waive forfeiture and disbarment based upon the commission of such offenses upon an application of the County Prosecutor or the Attorney General. That application must show good cause to grant a waiver.
Note that the inapplicability of N.J.S.A. 2C:51-2 will not prevent a police department from disciplining an officer, up to and including termination.
Timothy R. Smith, a certified criminal trial attorney (less than 1% of New Jersey lawyers have satisfied the rigorous requirements necessary to achieve such a designation), devotes much of his practice to criminal and disciplinary defense. Smith was formerly employed as a police officer, detective, police union president and member of a prosecutor’s office legal staff prior to transitioning into private legal practice. Smith has served as an adjunct professor of graduate studies at Seton Hall University. He has also served as a private consultant to the Port Authority of New York and New Jersey instructing police recruits in the area of search and seizure.