This court was asked to decide whether the State of New Jersey, Office of the Attorney General (OAG) was required to defend the Monmouth County Prosecutors Office (MCPO) in an action in lieu of prerogative writs filed against it by the former Township of Marlboro Deputy Police Chief. The MCPO conducted an internal affairs investigation into allegations against the Deputy Chief pursuant to Attorney General Law Enforcement Directive No. 2022-14 (Directive 2022-14) and the OAG's Internal Affairs Policy & Procedures, November 2022 Version (IAPP). After the MCPO issued a report of its findings, the Deputy Chief entered into an agreement with the Township and resigned, reserving his rights to challenge the MCPO's determinations.
The former Deputy Police Chief's prerogative writs action sought only injunctive relief against the MCPO, including an order prohibiting the MCPO from following the IAPP and Directive. The OAG denied the MCPO's request for representation and the MCPO appealed.
The issue before the court was whether the OAG's duty to defend pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, arises when the underlying action demands no monetary damages and seeks only injunctive or equitable relief through an action in lieu of prerogative writs.
In this case, the State's obligation to defend, if any, would stem solely from sections 10A-1 to -3 of the TCA. Under N.J.S.A. 59:10A-1, the duty to defend state employees is mandatory only for tort actions demanding monetary damages. The defense of all other actions is discretionary under N.J.S.A. 59:10A-3, as interpreted by the Court in Wright v. State, 169 N.J. Super. 422 (2001), and its progeny.
Since the action in lieu of prerogative writs at issue here sought no monetary damages, the court affirmed the OAG's discretionary decision denying representation to the MCPO.