Complaint - Falco v. Zimmer

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MURPHY ORLANDO LLC Jason F. Orlando, Esq. John W. Bartlett, Esq. 30 Montgomery Street, 15th Floor Jersey City, New Jersey 07302 (201) 451-5000 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ANTHONY P. FALCO, as Chief of Police of the City of Hoboken and individually, Plaintiff, v. DAWN ZIMMER, in her capacity as Mayor of the City of Hoboken and individually, and the CITY OF HOBOKEN, a municipal corporation, Defendants. Plaintiff ANTHONY P. FALCO, who resides at 15 Church Towers, Hoboken, New Jersey 07030, in his capacity as Chief of Police of the City of Hoboken and individually, by way of complaint against DAWN ZIMMER, who resides at 59 Madison Street, Hoboken, New Jersey 07030, in her capacity as Mayor of the City of Hoboken and individually; and the CITY OF HOBOKEN, a municipal corporation of the State of New Jersey with offices at 94 Washington Street, Hoboken, New Jersey 07030, says: Nature Of Action 1. For 42 years, Anthony P. Falco has served proudly as a member of the Hoboken COMPLAINT AND JURY DEMAND CIVIL ACTION NO. _______________
Police Department (HPD), rising through the ranks from Patrol Officer. In recognition of his knowledge, skills, and dedication, he was appointed Chief of Police in 2009.
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2.
As Chief, he has supervised major emergency response efforts, including HPDs
response to Hurricane Irene, the Halloween blizzard in 2011, and Superstorm Sandy in 2012. Since Plaintiff became Chief, rates of violent crime in the City have decreased, despite a decline in force size during the same period, thanks to various of the Chiefs initiatives, including innovations in deployment and the creation of an Anti-Crime Unit. 3. Regrettably, Chief Falcos tenure as Chief has been marred by the unfair practices
and inappropriate behavior of Mayor Dawn Zimmer (Zimmer or the Mayor). Among other things, the Mayor, directly and via City staff who report to her, has undermined the Chiefs authority within HPD by disregarding the chain of command and the statutory authority of the Chief, by directing repeated and inappropriate inquiries to the Chief, and by expressing to City employees her negative view toward HPD in general and Chief Falco in particular. 4. Mayor Zimmers animus toward Chief Falco has caused her to arbitrarily and
unreasonably disregard the past practice between prior mayors and chiefs of police of providing the Chief with a document setting forth the terms of his employment. Such a document is important, because the City has taken the position that the Chief of Police is not a member of any existing bargaining unit and therefore does not enjoy the protection of any of the various collective bargaining agreements that protect the rank-and-file and senior officers of HPD. 5. For example, the Chief does not even know how many vacation days he is entitled
to per year, or whether he will continue to enjoy health insurance or other retiree benefits upon retirement; yet these items are spelled out in collective bargaining agreements covering every other member of the force, and were specified in prior agreements between the City and Chief Falcos predecessors. The completion of such a document is also important as a means of ensuring that the City complies with the statutes applicable to the employment of a Chief of
Police, including the requirement that the Chief be the highest-paid officer on the force. See N.J.S.A. 40A:14-179. 6. Attorneys in the Citys Office of Corporation Counsel (OCC) have stated that
they prepared an employment document and, upon information and belief, provided it to the Mayor for her review. However, despite repeated requests directly and via counsel since that time, the City refuses to release the draft or discuss its terms with the Chief. 7. Further, the Mayor and the City have violated Chief Falcos procedural due
process rights in connection with his compensation, by reducing his compensation through the denial of a clothing allowance, sick incentive, and credit for overtime hours, without written notice or hearing, in violation of 42 U.S.C. 1983 and N.J.S.A. 40A:14-147, and his substantive due process rights by, upon information and belief, allowing other officers compensation to exceed his in violation of N.J.S.A. 40A:14-179, and by interfering with his performance of his duties and his authority over HPD in violation of N.J.S.A. 40A:14-118. 8. Upon information and belief, the Mayors conduct regarding Chief Falco is not
based upon any meritorious ground, but rather upon personal animus towards him. In or about April 2005, Mayor Zimmers father-in-law, Henry Grossbard, was killed in a late-night hit-andrun. Then-Captain Falco was the lead investigator responsible for the case. Despite his and his teams substantial efforts, the Hoboken Police Department was not able to solve the case, and the driver responsible for Henry Grossbards death has never been brought to justice. Upon information and belief, Zimmer blames Chief Falco personally for this failure. 9. Further, upon information and belief, Zimmer also bears animus towards Chief
Falco based upon his perceived political affiliation.
Parties 10. Plaintiff Anthony P. Falco is the Chief of Police of the City of Hoboken. He
resides at 15 Church Towers, Hoboken, New Jersey 07030. 11. The City of Hoboken (the City) is a municipal body corporate and politic
existing under the laws of the State of New Jersey, with offices at 94 Washington Street, Hoboken, New Jersey 07030. 12. Defendant Dawn Zimmer (Zimmer or the Mayor) is the Mayor of Hoboken.
She resides at 59 Madison Street, Hoboken, New Jersey 07030. Jurisdiction and Venue 13. This action is brought pursuant to 42 U.S.C. 1983, 1985, and 1988. This Court
has jurisdiction pursuant to the foregoing provisions and to 28 U.S.C. 1331. The Court has supplemental jurisdiction to hear and decide Plaintiffs state law claims pursuant to 28 U.S.C. 1367. 14. Venue in this District is proper pursuant to 28 U.S.C. 1391(b), because
Defendants are residents of, or located in, the State in which the District is located, and because a substantial part of the events or omissions giving rise to the claims stated herein occurred in this District. Facts Common to All Counts Chief Falcos Service 15. Chief Anthony Falco is a highly-decorated police officer who has earned
twenty (20) federal, state, and other certifications in various aspects of law enforcement and four (4) departmental commendations for his performance as a member of the HPD.
16.
The Chiefs quality and professionalism have been recognized even by certain
members of the current mayoral administration. For example, Hoboken Director of Public Safety (DPS) Jon Tooke (Tooke) has written that his attendance and job performance is second to none, and that I could not ask for a better partner in this important responsibility of help[ing] our department and improv[ing] the safety and security of our city. 17. In or about 2008, then-Captain Falco completed the Chief of Police civil service
examination. Adjusted for seniority, his score was the highest of the five eligible officers in Hoboken at the time of his appointment as Chief of Police in 2009 and, upon information and belief, the second-highest in the entire State of New Jersey. 18. 19. Plaintiff became Hobokens Chief of Police on June 18, 2009. At that time, the City was under the control of a State fiscal monitor, and it was
the New Jersey Department of Community Affairs that had the authority to select the Citys new police chief. As described in the letter from the States fiscal monitor, Judith Tripodi, informing then-Mayor David Roberts and the municipal council of the selection, the selection of Plaintiff was consistent with applicable laws and regulations. 20. Not long after Plaintiff became Hobokens Chief of Police, Defendant Dawn
Zimmer became its Acting Mayor in July 2009. On November 6, 2009, Mayor Zimmer was elected to complete a four-year mayoral term. 21. Chief Falco took over a department in disarray. Within recent memory, HPD had
weathered a scandal involving the commanding officer of the departments SWAT team, who was also the citys Director of Homeland Security, being photographed with Hooters girls holding automatic weapons; charges filed against the department by several Latino officers, alleging intimidation, harassment, and racism; and highly-public disputes regarding the
compensation of the prior police chief. As noted, he took office during a period when the City was under the supervision of a State fiscal monitor. And in his first month as Chief, Plaintiff had to supervise the response to a devastating helicopter crash on the Citys waterfront. The Citys Unilateral Reduction of Chief Falcos Compensation, and Failure To Specify Employment Terms 22. Previous Hoboken police chiefs received simple contracts or memoranda of
agreement with the City, setting forth items such as the chiefs compensation, specifying which provisions of HPDs senior officers collective bargaining agreement also applied to the Chief (who is not a member of that bargaining unit), and other terms, including terms related to the chiefs terminal pay and leave at the conclusion of his service. 23. At least two examples of police chiefs agreements with the City, of the sort
described in the foregoing paragraph, are known to Plaintiff. Upon information and belief, these agreements continued a pattern and practice that goes back much farther into the Citys history. 24. In the absence of such a document, basic questions such as whether or when the
Chief should be paid, or not, for his presence (such as during overtime hours) or during his absence (such as during sick or family leave) are left unanswered. The inappropriateness of this sort of situation a situation where, in effect, a person working for the public may be paid, or not, based upon the whims and largesse of City officials and not upon specified terms is why the New Jersey Legislature saw fit to require all local public contracts to be in writing. See, e.g., N.J.S.A. 40A:11-14. 25. Based upon the foregoing, Chief Falco anticipated that the City would provide
him with a similar document setting forth the terms of his employment and compensation.
26.
At the time Plaintiff became Chief of Police, HPDs rank-and-file and senior
officers were all working under the terms of expired collective bargaining agreements, while new agreements were being negotiated between the City and the police unions. 27. In 2010 and 2011, Chief Falco continued to receive compensation items received
by all other senior officers of HPD, including an annual uniform stipend (for the purchase and maintenance of professional clothing) of $1,300.00 and an annual attendance incentive (known as the sick incentive) of $1,500.00; but no increase in compensation even after Hobokens senior officers finalized a new collective bargaining agreement with the City that provided for annual raises from 2008 through 2013. 28. Still the Chief waited patiently for the City to set forth the terms of his
employment and compensation, consistent with its past practice, sound public policy, and the Chiefs right to be assured that the City is complying with State law regarding the compensation of police chiefs. See N.J.S.A. 40A:14-179. But no document or information was forthcoming. 29. Instead, in 2012, for the first time, the City withheld and refused to pay the
Chiefs annual uniform stipend and sick incentive, even though the City provided that compensation to all other senior officers. 30. This withholding of at least $2,800.00 in compensation occurred without notice of
any kind, and with no opportunity for the Chief to be heard regarding the matter. 31. The withholding of at least $2,800.00 in compensation was a violation of N.J.S.A.
40A:14-147, which prohibits members of the police from being fined except for just cause upon a written complaint and after a hearing. 32. The Chief made repeated, but ultimately fruitless, attempts to communicate with
City officials regarding his compensation, beginning in early June 2012.
33.
Then, for months, repeated attempts to clarify the terms of the Chiefs
employment with the City were without success. 34. On August 20, 2012, OCC wrote a letter taking the position that the City had no
obligation to provide the Chief with an agreement and there will be no negotiation regarding any proposed contracts terms. 35. Notwithstanding this posturing, the Chief believed that all parties understanding
and intent remained that the City would eventually follow its past practice. Consistent with this understanding, OCC attorneys informed the Chief in or about September 2012 that a draft agreement was on the Mayors desk awaiting mayoral action. However, they also stated that completion of the agreement was not a priority for the Mayor. 36. Finally, in a January 16, 2013 letter, the City repeated its position that it was not
obligated to provide the Chief an agreement, and stated with respect to the Chiefs compensation that Chief Falcos base salary is higher than that of the most senior captain in HPD, and Furthermore, I understand that the departments senior officers will be receiving a base salary increase of 1.95%, beginning in 2013. As is required by statute, Chief Falco will receive that raise in his base salary in 2013. (Emphasis added.) 37. However, Chief Falco did not receive any increase in compensation in 2013. His
gross pay is unchanged from previous years, even though, upon information and belief, other senior officers in HPD received pay raises effective as of January 1, 2013. 38. Historically, it has also been Hobokens convention to pay its Chief of Police and
Chief of Fire the same base salary. However, upon information and belief, since 2009, Chief Falcos salary has been $4,000.00 less than the Fire Chiefs salary.
39.
Without an agreement, and in light of the Citys position that Chief Falco is not a
member of any bargaining unit, the Chief does not even know the leave he is entitled to; whether and to what extent he is entitled to the insurance coverage and other benefits enjoyed by other senior officers; or whether and under what circumstances he is entitled to overtime pay or other credit for excess hours worked. 40. The lack of clarity between the City and the Chief on the terms of his employment
has even rendered the City unable to comply with other laws. Upon information and belief, in or about March 2013, the City received an Open Public Records Act (OPRA) request, see N.J.S.A. 47:1A-1, from a local journalist, seeking information regarding the number of paid vacation and sick days to which the Chief is entitled. Upon information and belief, the City was unable to respond to the OPRA request in the time required by that statute because there was no document setting forth the information sought by the requestor. 41. The City has also taken a position regarding the Chiefs overtime that differs from
past practice, to Chief Falcos detriment. 42. Upon information and belief, prior Hoboken police chiefs reported overtime
hours were paid out by the City upon their departure from service. 43. Chief Falco has accumulated more than 278 hours of overtime since becoming
Chief in 2009, including as a result of his almost round-the-clock service to the City during Hurricane Irene in 2011 and Superstorm Sandy in 2012. 44. Chief Falco submitted documentation requesting compensation for overtime
worked in connection with Superstorm Sandy in October and November 2012. 45. Thereafter, Director of Public Safety Jon Tooke conveyed to Chief Falco the
Citys position that the Chief of Police doesnt get overtime.
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46.
Chief Falco was not paid for his Superstorm Sandy overtime. Rather, his request
for overtime pay was effectively denied by way of inaction on the part of the City, without notice or opportunity to be heard. 47. Thus, it appears that the Citys new policy, enunciated by DPS Tooke, as to which
the Chief had no notice or opportunity to be heard, is in effect a change in compensation policy that has caused and will continue to cause substantial material harm to Chief Falco. 48. Upon information and belief, Defendants arbitrary, capricious and unreasonable
withholding and diminishment of the Chiefs compensation is part of an effort to manipulate the Chief and exercise impermissible authority over HPD in violation of N.J.S.A. 40A:14-118. 49. All of Defendants actions and failure to act in connection with the Chiefs
compensation, as described above, were arbitrary, capricious, and unreasonable. The Mayors Motivations and the Unsolved Death of Henry Grossbard 50. 51. 52. Defendant Dawn Zimmer is married to Stan Grossbard (Grossbard). Stan Grossbards father, Henry Grossbard, resided in Hoboken. After 11:00 p.m. on the rainy night of April 23, 2005, Henry Grossbard was
struck by an automobile, in a hit-and-run incident, and killed while walking his dog on River Road in Hoboken. Plaintiff, then a Captain in HPD, was the Captain of HPDs Detective Bureau at the time, and therefore supervised the on-going investigation of the case. 53. Despite the best efforts of Plaintiff and the officers he supervised, HPD was never
able to identify the driver who killed Henry Grossbard. His death remains unsolved. 54. Upon information and belief, Zimmer blames Chief Falco personally for HPDs
failure to solve the hit-and-run case of who killed Henry Grossbard.
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55.
For example, on one occasion in or about 2010, Chief Falco remarked privately to
Mayor Zimmer that we have to work together despite the Mayors feelings about her father-inlaws death. The mayor responded, You didnt do enough. 56. Upon information and belief, the Mayor also bears animus towards Chief Falco
based upon his perceived political affiliation. 57. In Hoboken, there is a perceived political rivalry between Old Hoboken
individuals whose families have been in Hoboken for decades or even generations, comprised of small business owners, blue-collar workers, and many members of the uniformed services and New Hoboken, comprised of young and middle-aged professionals originally from elsewhere in New Jersey or New York, many of whom commute to New York City for the workday. 58. Upon information and belief, Zimmer perceives New Hoboken to be her
political base, and views the Chief as allied with and typical of Old Hoboken. 59. Chief Falco became Chief during the administration of Mayor David Roberts,
who was perceived to be a representative of Old Hoboken. As a city council member at that time, Zimmer was a frequent and vociferous critic of Roberts. Upon information and belief, she associates Plaintiff with Roberts, her former political rival. 60. In addition, the Mayor has had a contentious relationship with the unions who
represent HPD officers. 61. In 2010, when she sought to demote and lay off a number of officers, see infra at
143-151, at a time when rank-and-file officers had been working without a contract for approximately two years, these unions put up an anti-Zimmer billboard in Hoboken and held one or more public demonstrations against the Mayors layoff plan.
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62.
Upon information and belief, and according to news reports, Zimmer was so
aggravated by the police unions criticism of her that, in or about September 2010, she publicly berated a priest for delivering a homily that she perceived to be supportive of the police unions. 63. Upon information and belief, Zimmer believed, and continues to believe, that the
Chief facilitated or tacitly supported the unions criticism of Zimmers administration. The Mayors Pattern of Undermining and Second-Guessing Chief Falco 64. Upon information and belief, the Mayor has told third parties, including City
employees, that she would never have chosen Plaintiff to be her Chief of Police. 65. However, because the law permits a mayor to remove or demote a chief of police
only for just cause, see N.J.S.A. 40A:14-147, the Mayor cannot terminate or demote the Chief. 66. Instead, by and through her power over City government, and acting through City
employees, Zimmer has undertaken to hinder and interfere with Chief Falco in the performance of his duties, to circumvent his authority, and to second-guess his decisions, as well as to deny him appropriate compensation as described in this Complaint. 67. Pursuant to statute, in any municipality with a Chief of Police, the Chief shall be
the head of the police force and . . . shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof. N.J.S.A. 40A:14-118. 68. Among other functions, state law assigns to the Chief of Police the duty to
[a]dminister and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel. Id. 69. The purpose of these statutes is to ensure that chiefs of police, as highly-trained
law enforcement professionals, can carry out their professional duties in the public interest
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without the interference of politicians who may not understand the sensitive nature of police work and the management of law enforcement professionals. 70. Contrary to this intent, Defendants have attempted to micro-manage the Police
Department, acquire confidential information to which civilian officials are not entitled under law, exert inappropriate influence over HPD hiring practices, and marginalize Chief Falco. 71. For example, by Fall 2009 it had become apparent to Chief Falco that,
notwithstanding established chains of command and legal limits on civilian access to internal police investigations and information, members of the Mayors administration were inquiring into and receiving information about investigations by the HPDs Internal Affairs division. 72. Soon after Plaintiff became Chief of Police, the City hired Angel Alicea
(Alicea) to be its new DPS. 73. The DPS is a civilian position, as distinguished from a law enforcement or
uniformed service position such as Chief of Police or Chief of Fire. 74. A civilian has no authority to exercise police powers, perform police duties or
direct individual police officers in the performance of their law enforcement duties. A municipality cannot accord law enforcement powers on a civilian police director or public safety director. See Jordan and City of Asbury Park v. Harvey, 885 A.2d 14, 381 N.J. Super. 112 (N.J. App. Div. 2005). 75. 76. The DPS is selected by the mayor and serves at the Mayors pleasure. As DPS, Alicea reported directly to Zimmer and served as a member of the
Mayors cabinet and inner circle.
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77.
Upon information and belief, many, if not all, of Aliceas actions as described
herein were taken upon Zimmers instruction or with her knowledge and approval, whether explicit or implicit. 78. Likewise, upon information and belief, the failure of other offices, such as OCC,
to restrain the DPS from engaging in conduct that violated the law or exposed the City to litigation risk, was at the Mayors instruction or with her knowledge and approval, whether explicit or implicit. 79. Almost immediately after being appointed, Alicea began efforts to undermine the
authority of the Chief, including by failing to notify the Chief of upcoming events involving the police department, directly contacting and directing officers under the Chiefs command, and improperly gaining access to the camera system that monitors activities inside HPD. 80. The Attorney General of New Jersey has prescribed strict rules protecting the
confidentiality of police Internal Affairs files, which forbid Internal Affairs (IA) investigators and the Chief from disclosing information or files even within the police department much less to civilians not part of the department unless specific predicate events occur or good cause is shown. See N.J. Attorney General, INTERNAL AFFAIRS POLICY & PROCEDURES (revd. Sept. 2011), at 45-48 (on-line at http://www.state.nj.us/lps/dcj/agguide/internalaffairs2000v1_2.pdf) (the Attorney Generals IA Guidelines). 81. In or about October 2009, three months after Zimmer became Acting Mayor,
Alicea sent the Chief a memorandum discussing details of an on-going and unresolved Internal Affairs investigation, and criticizing the Chief for failing to notify the DPS of the investigation.
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82.
Copies of the memorandum described in the foregoing paragraph were sent by
Alicea to Mayor Zimmer, Fiscal Monitor Tripodi, and then-Corporation Counsel Steven Kleinman, all of whom are civilians. 83. In the interest of ensuring that HPDs IA division be in compliance with
applicable law and guidelines, the Chief instructed the head of IA to ask Alicea what information he had received regarding any on-going internal or criminal investigations, and from what source. Alicea declined to provide this information. 84. Just a few months later, HPDs IA division was investigating an alleged incident
involving a suspended HPD Lieutenant at the Tampa International Airport. During the course of the investigation, IA officers learned that Alicea had contacted the Tampa International Airport Police (TIAP) directly regarding the alleged incident, in violation of all appropriate protocols for the handling of such an investigation. 85. At a meeting a few days later, Alicea provided Mayor Zimmer, other City
officials, and Chief Falco with a copy of a TIAP report that had never been provided to IA, but apparently had been procured by Alicea and not provided by him to the officers actually responsible for the investigation. It is not known what representations Alicea may have made to TIAP officers in order to improperly procure the report. 86. At the same meeting, Alicea, the Mayor, and other civilian officials instructed
Falco and the IA officer with him to file charges against the suspended Lieutenant right away, even though, in the police officials judgment, additional investigation would have solidified the case and provided more support for his suspension and any further discipline. 87. Aliceas interference with HPDs internal investigation may have harmed the IA
divisions ability to present the strongest possible case against the suspended Lieutenant.
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88.
Chief Falco repeatedly communicated to DPS Alicea that it was inappropriate for
Alicea to be accessing information about IA investigations via private and undisclosed means, and then sharing that information with other civilians. 89. Throughout 2010, additional incidents indicated that Alicea continued to
communicate directly with officers who reported to Chief Falco regarding IA matters. 90. First, on April 7, Alicea sent a two-page, single-spaced memorandum to Chief
Falco describing in detail the allegations in an IA investigation of two officers arising out of an incident that occurred just five days earlier. 91. Alicea sent copies of this memorandum to Mayor Zimmer, Fiscal Monitor
Tripodi, then-Corporation Counsel Michael Kates, Councilman Ravinder Bhalla, and other members of the Hoboken City Councils Public Safety Committee. 92. are civilians. 93. Three months later, on July 8, 2010, Alicea sent another long memorandum to Except for Chief Falco, all the recipients of Aliceas April 7, 2010 memorandum
Chief Falco regarding the same matter, again copying civilians: Mayor Zimmer, then-Business Administrator Arch Liston, and then-Corporation Counsel Michael Kates. 94. Second, at 3:15pm on April 9, 2010, Alicea called Chief Falco by telephone and
asked about the existence of an IA investigation against a specific named officer, and advised the Chief that he was inquiring on behalf of the law director [Mr. Kates] and the press. 95. The Chief responded that the law director could request the information in
writing, and Alicea said that such a request would be sent to Chief Falco. (The procedure the Chief instructed Alicea to follow is consistent with the Attorney Generals IA Guidelines. See id.)
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96.
Instead, Alicea called Chief Falco back at 3:20pm and stated that he had received
the information he requested from another source. 97. Third, in or about July 2010, Alicea wrote a memorandum to Chief Falco
inquiring about an altercation between two police officers that was the subject of a then-ongoing IA investigation. As before, copies of the detailed memorandum were sent to various civilian government officials: Mayor Zimmer, Fiscal Monitor Tripodi, Councilman Bhalla, Councilwoman Mason, and then-Councilman Lenz. 98. At the Chiefs instruction, a member of the IA division followed-up with Alicea,
inquiring, among other things, as to the identity of the person who provided Alicea with information regarding the investigation. Alicea responded that he would not reveal his source, stated that it was not a cop, but then also stated and later wrote to the Chief in a follow-up memorandum that the source feared retaliation and would have a claim under the N.J. Conscientious Employee Protection Act (CEPA) if s/he were retaliated against. 99. In August 2010, Alicea distributed another HPD incident investigation report to
various civilian City employees without redacting the names, addresses, and dates of birth of the witnesses involved. 100. In response, the Chief sent Alicea a memorandum stating: Director, I am very
concerned that an investigation report was distributed to civilian employees within city hall without names, addresses, and date of births being redacted. [C]ivilian employees should not have had access to the report. The administration was placed in a situation that could have and, may still, result in litigation.
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101.
On one occasion, Alicea actually attempted to use the Open Public Records Act
(OPRA) to gain access to IA investigative materials, by filing an OPRA request dated December 2, 2010, seeking videotapes of an alleged incident in HPD headquarters. 102. Aliceas OPRA request was denied, because the requested materials were part of
a confidential IA investigative file, consistent with the Attorney Generals IA Guidelines, N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-3. 103. Chief Falco periodically alerted OCC that Aliceas conduct, by violating the
Attorney Generals guidelines, exposed the City to litigation risk. 104. Chief Falco also periodically alerted OCC, including directors Kleinman and
Kates, that Aliceas repeated requests for internal information were interfering with the day-today operations of the HPD. 105. Upon information and belief, OCC never responded or took any action in
response to the Chiefs concerns. 106. Soon after becoming DPS, Alicea also began making repeated written requests for
Chief Falco to provide him with copies of HPDs daily roll call the list of all officers names and assignments for each shift. 107. Alicea also made repeated requests for the data recorded by the HPDs hand scan
device, which is used to track individual officers attendance. 108. Upon a review of applicable regulations, Chief Falco determined that personnel
roll calls and the data recorded by the HPDs hand scan device used to track attendance were internal records of the police force and therefore confidential in nature. He so advised Alicea.
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109.
However, Chief Falco readily agreed to provide Alicea with a daily list, by tour
and rank, of the number of officers in service at all times of every day, and did in fact promptly commence providing that information to Alicea. 110. Nevertheless, Alicea continued making the same request for the actual names
and hours of duty of every officer in service at all times, and for the hand scan data over and over again. 111. During a vacation that Chief Falco took in March and April 2010, Captain
Edelmiro Garcia became Acting Chief during Chief Falcos absence. Alicea promptly issued a request to Acting Chief Garcia to provide him with the roll calls and hand scanner data that Chief Falco had declined to. 112. OCC also sent a letter to Acting Chief Garcia, dated March 31, 2010, instructing
him to provide the requested confidential information to Alicea. 113. In the letter referenced in the foregoing paragraph, then-Corporation Counsel
Kates cited various statutes and instructed Garcia that the DPS is entitled to obtain a copy of the roll call from each tour of duty at his request. Therefore, the office of Corporation [sic] respectfully requests you comply with me [sic] Directors order and provide the roll calls immediately. 114. Alicea contacted the Acting Chief on at least four more occasions during Chief
Falcos vacation, in an apparent attempt to bully or cajole him into providing the requested confidential data. 115. returned. The Acting Chief declined to provide the requested material until Chief Falco
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116.
After returning from his vacation, Chief Falco wrote to Alicea on May 7, 2010, to
advise him that the Chief would seek legal advice on the issue. In the same memorandum, the Chief reminded Alicea: I have provided you in the past the current Hoboken Police Department Organizational Chart and the annual squad calendars. At your request, I will continue to provide you with these documents and answer any further questions you may have regarding them. 117. In order to resolve the matter, Chief Falco sought the advice of the Hudson
County Prosecutor, and advised Alicea that he would abide by the Prosecutors advice regarding the records. 118. While that request was pending, Alicea wrote the Chief two more memoranda,
copying Mayor Zimmer and then-Business Administrator Arch Liston, to instruct the Chief to provide hand scanner data of employee attendance for the prior six months, and to provide the same data weekly on an on-going basis. 119. In a written opinion letter dated June 29, 2010, the Office of the Hudson County
Prosecutor confirmed the Chiefs understanding of the applicable law, writing: Based on our review of the relevant statutes and the available case law, we have concluded that the recording, maintenance and monitoring of the daily attendance records of individual officers is the responsibility of the Chief of Police. . The statute and relevant sections of the [HPD] Rules and Regulations clearly establish the overall responsibility of the Chief of Police for monitoring the daily attendance of members of the Department, and, if necessary, disciplining non-compliant members. In our judgment, the hand scanner printouts sought by the Director [Alicea] relate to the routine, day to day operations of the Department, and the maintenance and monitoring of those printouts is the responsibility of the Chief of Police. Director Aliceas request for the roll call sheets raises the same issue, since it essentially seeks information regarding the daily attendance of individual members of the Department. The roll call sheets also identify the officers assigned to specific duties on each tour, and, under N.J.S.A. 40A:14-118, the assignment of particular 20
officers to particular duties is clearly the responsibility of the Chief of Police. We agree with Chief Falco, however, that the Director may be provided with information as to the number and rank of officers assigned to specific duties on each tour, without identifying the individual officers involved. 120. 121. Chief Falco provided Alicea and OCC with copies of the Prosecutors opinion. Nevertheless, in or about March 2011, Alicea submitted an OPRA request to the
City, which was directed to Chief Falco, seeking HPDs Roll Call Sheets from Jan 1st 2010 to present. 122. There are other examples of how Alicea, as Defendant Zimmers agent, attempted
to interfere with and intrude into the Chiefs management of HPD and improperly gain access to the confidential investigations and records of HPD. 123. In or about April 2010, Plaintiff learned that Alicea had contacted a representative
of HPDs on-line research tool, West Government Services, and requested a list of all searches run through the system by HPD investigators during a particular period. 124. At the very same time, however, the DPS had refused or declined to actually
approve payment for HPDs use of West Government Services, resulting in delays to certain actual police investigations. 125. In addition to such intrusions on the Chiefs disciplinary purview, Alicea, his
successor as DPS, and OCC staff made repeated and harassing written requests for all sorts of information from the Chief. Responding to these requests was a burden on the Chiefs time and often forced the officers who report to him to dedicate time to preparing responses to other City officials rather than engaging in law enforcement tasks. 126. The Chief and HPD were also the target of complaints from other director-level
staff of the City, each of whom reported directly to Mayor Zimmer.
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127.
These inquiries ranged from asking why a police car was parked in a particular
location for a period of time or why officers were directing traffic at a particular location on a particular day; to inquiring about an individual requisition to change some interior door locks in HPD headquarters; to inexplicably emergent requests for crime data. 128. In one e-mail, copied to the Mayor, Business Administrator, and OCC attorneys,
then-Director of Parking Ian Sacs demanded a department wide investigation of HPD because he believed there was chronic animosity and abuse of power aimed towards employees of Hoboken Parking Authority. 129. In connection with the same matter, the OCC wrote to the Chief to formally
request an Internal Investigation and demand major disciplinary action based upon allegations Sacs made against a HPD officer. 130. A decision of whether discipline should be major or progressive in nature is
within the purview of the Chief of Police, not civilian authorities. See N.J.S.A. 40A:14-118. 131. At the time, upon information and belief, Sacs was known to be a close political
ally of Defendant Zimmer. 132. The Director of the Parking Authority, like the DPS, is appointed by the Mayor
and serves in the Mayors cabinet and inner circle at her pleasure. 133. Upon information and belief, Sacs memorandum attacking HPD was motivated
by an unrelated incident one week earlier, when Sacs was arrested by an HPD officer for commandeering an un-occupied city shuttle (The Hop) while its driver was using the restroom, driving the vehicle to City Hall, then getting into a physical confrontation with The Hop driver when he came to retrieve the vehicle and his keys.
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134.
In connection with Sacs arrest, which was effected by HPD Sergeant Melissa
Gigante, an OCC attorney threatened Chief Falco that heads will roll if a photograph of Sacs in handcuffs were to appear in the media. 135. 136. Sergeant Gigante is Plaintiffs daughter. In another example of the Mayors attempt to interfere with Chief Falcos
performance of his duties, she made repeated requests to the Chief for post-action supplemental written reports on HPDs questioning of Ryan Lanza, the brother of Newtown, Connecticut, school shooter Adam Lanza, even though the preparation of such supplemental reports is not consistent with police practice and the Chief advised her accordingly. 137. The Mayor has also attempted to interfere with hiring decisions for HPD officers,
first by creating onerous rules limiting the eligibility of potential officers to be hired by HPD, and then by asking the Chief to violate those rules and go beyond the established civil service process for communications with prospective employees. 138. Among the onerous rules implemented by the Mayor and her political allies is the
requirement, set forth in a Municipal Ordinance (see Hoboken Muni. Code 59A-13), that prospective HPD officers not only be residents of the City at the time they are hired, as required by law, but that they have been residents of the City continuously from the closing date of the police exam through their date of hire. This rule, which is not required by State law, and may in fact be void if the State has preempted the field of regulation for police hiring, has the effect of excluding many eligible candidates. 139. During HPDs most recent round of hiring, the Mayor requested and received a
list of five officers proposed for hiring by the Chief and DPS Tooke before employment offers were formally extended to these candidates. After reviewing the list, the Mayor proposed to
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hold up one of the hires, and asked the Chief to re-consider and contact again two other candidates, at least one of whom was not in compliance with the local ordinance described in the foregoing paragraph. 140. This course of action put the Chief in the untenable position of having to choose
between following the City ordinance or following the Mayors instructions, and of having to affirmatively contact a candidate at a stage and in a manner not contemplated by civil service rules. It also undermined the Chiefs authority as between himself, the DPS, and other senior City officials, and potentially among rank-and-file HPD officers were the incident to be revealed. 141. On another occasion, the Mayor, via OCC staff, instructed the Chief to suspend
HPDs press liaison, who is a sergeant in the HPD, for releasing information without approval from the Mayors office. This is a violation of N.J.S.A. 40A:14-118, which delegates to the Chief alone the authority to enforce rules and regulations . . . for the disposition and discipline of the force and its officers and personnel. 142. Upon information and belief, the Mayor and her senior staff have also carried out
policies and made decisions in a way that is designed to weaken Plaintiff as Chief of Police, rather than on the merits. 143. For example, in 2010, Mayor Zimmer decided she wanted to reduce the police
department by layoffs as well as demotions. 144. The Mayor and then-Business Administrator Liston had instructed Falco to
provide a budget that reduced Hobokens policing costs by $2 million. The Chief provided a budget that accomplished that goal without layoffs. 145. In a meeting to discuss the Chiefs plan in or about July 2010, the Mayor asked,
Where are the layoffs? When the Chief demonstrated how savings could be accomplished
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without layoffs, the Mayor commented that there seems to be a disconnect here, and she and the Chief were not on the same page, implying that layoffs would be required. 146. By securing assurances from police union officials to show that his attrition
projections were accurate, the Chief demonstrated to the Mayor that cost-cutting without layoffs was achievable. 147. In response, the Mayor, through OCC, twice sent the Chief back for further
discussions with union representatives because she wanted to see different wording. 148. Notwithstanding all these efforts, upon information and belief, on or about
July 21, 2010, the Mayor posted a plan for police department layoffs and demotions on the Citys website. 149. The Mayor also sent an e-mail to media outlets and held a press conference to
announce the plan. 150. Upon information and belief, when asked during the press conference why the
Chief of Police was not present with her, she responded publicly that he had not been invited to participate in it. 151. Chief Falco had no prior notice of the Mayors intention to post the
announcement or hold the press conference described in the foregoing paragraphs. 152. Around the same time, the Mayor sent a long memorandum to the Chief, asking
him to develop plans for the civilianization of many offices within the HPD. When the Chief provided a written response showing why the functions of many of the departments the Mayor proposed to civilianize were, in fact, required to be performed by sworn officers, the mayor was unhappy with his response.
25
153.
Upon information and belief, in or about October 2012, DPS Jon Tooke
Aliceas successor in a communication with a HPD officer, inquired whether Chief Falco was receiving money from the individuals who owned certain vending machines located in HPD headquarters. (He was not.) 154. Because it involved an accusation against the Chief of the department, Chief
Falco referred the matter to the Hudson County Prosecutors Offices Internal Affairs division. 155. Since she became Acting Mayor in 2009, Defendant Zimmer is frequently
confrontational with Chief Falco during conversations in her office. Further, as demonstrated by several incidents described above, she frequently fails or refuses to share information, or allow her staff to share information, that Falco, as Chief of Police, reasonably needs for the performance of his duties. 156. At times, the Mayors refusal to communicate with the Chief has caused
unnecessary risks of endangering public safety. For example, the Mayors office never told the Police Department of a planned visit to the City by the Vice President of the United States in November 2012. The Chief only learned that Vice President Biden was coming to Hoboken when he was contacted directly by the United States Secret Service. 157. Likewise, on several occasions the Mayors office has failed to notify the Chief of
Police when Governor Chris Christie has come to the City for public events, where police participation in the Governors security and in crowd control are essential to the departments public safety function. 158. To the extent the violations of law described herein are continuing in nature, they
are subject to injunctive remedy.
26
Count One Violation of 42 U.S.C. 1983 Due Process 159. length here. 160. By withholding Chief Falcos annual uniform allowance without notice and a Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
hearing, Defendants violated N.J.S.A. 40A:14-147 and the Chiefs Due Process rights. 161. 162. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
immunities guaranteed by Plaintiff by the Constitutions of the United States and of the State of New Jersey, including without limitation the right to due process of law, and thereby constitute a cause of action under 42 U.S.C. 1983. 163. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Two Violation of 42 U.S.C. 1983 Due Process 164. length here. 165. By withholding Chief Falcos annul sick incentive without notice and a hearing, Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
Defendants violated N.J.S.A. 40A:14-147 and the Chiefs Due Process rights. 166. 167. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
immunities guaranteed by Plaintiff by the Constitutions of the United States and of the State of New Jersey, including without limitation the right to due process of law, and thereby constitute a cause of action under 42 U.S.C. 1983.
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168.
As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Three Violation of 42 U.S.C. 1983 Due Process 169. length here. 170. By withholding Chief Falcos 2013 raise, in violation of its written commitment Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
to the Chief, without notice and a hearing, Defendants violated N.J.S.A. 40A:14-147 and the Chiefs Due Process rights. 171. By allowing an inferior officers compensation to rise above Chief Falcos, upon
information and belief, Defendants violated N.J.S.A. 40A:14-179 and the Chiefs Due Process rights. 172. 173. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
Plaintiff suffered and continues to suffer damages. Count Four Violation of 42 U.S.C. 1983 - Due Process 175. length here. Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
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176.
By withholding Chief Falcos overtime pay and by not acknowledging his
entitlement to credit therefor, and by and unilaterally changing the Citys policy regarding the Chiefs overtime, without notice and a hearing, Defendants violated the Chiefs Due Process rights. 177. 178. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
Plaintiff suffered and continues to suffer damages. Count Five Violation of 42 U.S.C. 1983 Due Process 180. length here. 181. By interfering with the Chiefs authority over his own department, Defendants Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
violated N.J.S.A. 40A:14-118 and the Chiefs Due Process rights to exercise the statutory authority of his public office. 182. 183. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
immunities guaranteed by Plaintiff by the Constitutions of the United States and of the State of New Jersey, including without limitation the right to due process of law, and thereby constitute a cause of action under 42 U.S.C. 1983.
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184.
As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Six Violation of 42 U.S.C. 1983 Due Process 185. length here. 186. Defendants arbitrary, capricious and unreasonable withholding and diminishment Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
of the Chiefs compensation is part of an effort to manipulate the Chief and exercise impermissible authority over HPD in violation of N.J.S.A. 40A:14-118, and in violation of the Chiefs Due Process rights to exercise the statutory authority of his public office. 187. 188. Defendants actions, as described above, were undertaken under color of law. Defendants actions, as described above, violated the rights, privileges, and
Plaintiff suffered and continues to suffer damages. Count Seven Violation of 42 U.S.C. 1983 Due Process 190. length here. 191. Collectively as well as separately, Defendants actions, as described in Counts Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
One through Six, violated Plaintiffs right to due process under the law. 192. Defendants actions, as described above, were undertaken under color of law.
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193.
Defendants actions, as described above, violated the rights, privileges, and
Plaintiff suffered and continues to suffer damages. Count Eight Violation of 14 Amendment - Taking of Property Interest Without Due Process 195. length here. 196. Plaintiff had a reasonable expectation of continuing to receive his established Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
th
annual compensation, including his uniform allowance. 197. law. 198. 199. Defendants withheld the referenced compensation, without notice or hearing. As a direct result of the unlawful, intentional and malicious actions of Defendants, Plaintiff has a legitimate claim of entitlement to this compensation under state
Plaintiff suffered and continues to suffer damages. Count Nine Violation of 14th Amendment - Taking of Property Interest Without Due Process 200. length here. 201. Plaintiff had a reasonable expectation of continuing to receive his established Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
annual compensation, including sick incentive pay.
31
202. law. 203. 204.
Plaintiff has a legitimate claim of entitlement to this compensation under state
Defendants withheld the referenced compensation, without notice or hearing. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Ten Violation of 14th Amendment - Taking of Property Interest Without Due Process 205. length here. 206. Plaintiff had a reasonable expectation of receiving overtime compensation, or Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
credit therefor, consistent with the Citys past practice and/or its agreement with the senior officers of HPD. 207. law. 208. 209. Defendants withheld the referenced compensation, without notice or hearing. As a direct result of the unlawful, intentional and malicious actions of Defendants, Plaintiff has a legitimate claim of entitlement to this compensation under state
Plaintiff suffered and continues to suffer damages. Count Eleven Violation of 14th Amendment - Taking of Property Interest Without Due Process 210. length here. 211. Plaintiff had a reasonable expectation of receiving the 1.95% increase in his base Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
salary the City committed in writing to pay him and stated was required by statute.
32
212.
Plaintiff has a legitimate claim of entitlement to this compensation under state
law, and Defendants have admitted as much. 213. or hearing. 214. As a direct result of the unlawful, intentional and malicious actions of Defendants, Nevertheless, Defendants withheld the referenced compensation, without notice
Plaintiff suffered and continues to suffer damages. Count Twelve Violation of 14 Amendment - Taking of Property Interest Without Due Process 215. length here. 216. Collectively as well as separately, Defendants actions, as described in Counts Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
th
Eight through Eleven, constituted a taking of property which violated Plaintiffs right to due process under the law. 217. Chief Falco has a legitimate claim of entitlement to his compensation under state
law, including the aforementioned allowance, incentive, overtime pay, and salary increase. 218. 219. Defendants withheld the referenced compensation, without notice or hearing. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Thirteen Violation of 42 U.S.C. 1983 - Equal Protection 220. length here. 221. Defendants intentionally singled out Plaintiff by revoking and refusing to pay his Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
uniform allowance, without any rational basis for doing so.
33
222.
Defendants actions thereby denied Plaintiff his fundamental right to equal
protection under the law, a right secured by the 14th Amendment to the United States Constitution. 223. 224. Defendants actions, as described above, were undertaken under color of law. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Fourteen Violation of 42 U.S.C. 1983 - Equal Protection 225. length here. 226. Defendants intentionally singled out Plaintiff by revoking and refusing to pay his Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
sick incentive, without any rational basis for doing so. 227. Defendants actions thereby denied Plaintiff his fundamental right to equal
Plaintiff suffered and continues to suffer damages. Count Fifteen Violation of 42 U.S.C. 1983 - Equal Protection 230. length here. Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
34
231.
Defendants intentionally singled out Plaintiff by unilaterally changing City policy
and refusing to provide pay or credit for the Chiefs overtime hours, without any rational basis for doing so. 232. Defendants actions thereby denied Plaintiff his fundamental right to equal
Plaintiff suffered and continues to suffer damages. Count Sixteen Violation of 42 U.S.C. 1983 - Equal Protection 235. length here. 236. Defendants intentionally singled out Plaintiff by refusing to increase his pay at Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
any time during his service as Chief, including in order to remain in compliance with N.J.S.A. 40A:14-179, without any rational basis for doing so. 237. Defendants actions thereby denied Plaintiff his fundamental right to equal
Plaintiff suffered and continues to suffer damages.
35
Count Seventeen Violation of 42 U.S.C. 1983 - Equal Protection 240. length here. 241. Defendants intentionally singled out Plaintiff by failing to comply with their own Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
written commitment to increase the Chiefs base salary in 2013, without any rational basis for doing so. 242. Defendants actions thereby denied Plaintiff his fundamental right to equal
Plaintiff suffered and continues to suffer damages. Count Eighteen Violation of 42 U.S.C. 1983 - Equal Protection 245. length here. 246. Collectively as well as separately, Defendants actions, as described in Counts Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
Thirteen through Seventeen, violated Plaintiffs right to equal protection under the law, a right secured by the 14th Amendment to the United States Constitution. 247. 248. Defendants actions, as described above, were undertaken under color of law. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages.
36
Count Nineteen Violation of 42 U.S.C. 1985 249. length here. 250. Defendants, acting under color of law, conspired among themselves and with Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
others with respect to the acts and omissions described in Counts One through Eighteen, to deny Plaintiff his constitutional and civil rights, in violation of 42 U.S.C. 1983 and 1985 and in violation of Plaintiffs rights of due process and equal protection under the law as guaranteed to him by the Constitutions of the United States and the State of New Jersey. 251. Defendants, acting under color of law, conspired among themselves and with
others, as described above, to prevent and hinder Plaintiff in the discharge of the duties of his office of Chief of Police. 252. Defendants participation in each violation described in Counts One through
Eighteen above, and herein, constitutes a separate conspiracy in violation of 42 U.S.C. 1985. 253. Defendants participation in the violations described in Counts One through
Eighteen above, and herein, collectively constitute a conspiracy in violation of 42 U.S.C. 1985. 254. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Twenty Violation of New Jersey Civil Rights Act 255. length here. Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
37
256.
Defendants participation in each violation described in Counts One through
Nineteen, above, constitutes a separate violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq. 257. Defendants participation in the violations described in Counts One through
Nineteen, above, collectively constitute a violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq. 258. As a direct result of the unlawful, intentional and malicious actions of Defendants,
Plaintiff suffered and continues to suffer damages. Count Twenty-One Breach of Public Duty 259. length here. 260. Zimmer has a duty to perform her functions and responsibilities as mayor by Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
taking actions and rendering decisions based upon the merits of the issue at hand and the best interests of the city and its residents. 261. Instead, Zimmer has made decisions and taken actions with respect to Plaintiff
based upon her personal ill will towards the Chief. 262. Zimmer has made decisions and taken actions with respect to Plaintiff and HPD
based upon the Chiefs actual or perceived political affiliation. 263. 264. By doing so, Zimmer has breached her duty to the public. As a direct result of the unlawful, intentional and malicious actions of Zimmer,
Plaintiff both as Chief of Police and as a resident of the City has been damaged.
38
Count Twenty-Two Breach of Implied Covenant of Good Faith and Fair Dealing 265. length here. 266. 267. Plaintiff has a contractual or quasi-contractual relationship with the City. Plaintiff has at all times acted in good faith and has dealt fairly with the City in Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
connection with his public office and status as an employee of the City. 268. In addition to the express terms of a contract, the law provides that every contract
contains an implied covenant of good faith and fair dealing. 269. Defendants have acted in bad faith, dishonestly, and with improper motive to
destroy or injure Plaintiffs right to receive the benefits or reasonable expectations of his contractual and economic relationship with the City. 270. Plaintiff has been damaged thereby. Count Twenty-Three Tortious Interference with Contract 271. length here. 272. In her individual capacity, Defendant Zimmer is not a party to the employment Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
relationship between the City and Plaintiff. 273. By taking the actions described above, Zimmer intentionally, wrongfully,
maliciously, and without justification or excuse, interfered with Plaintiffs existing contractual and economic relationship with the City. 274. Zimmer and Plaintiff are not parties in direct competition in the same market.
39
275.
As a direct result of the unlawful, intentional and malicious actions of Zimmer,
Plaintiff was damaged. Count Twenty-Four Tortious Interference with Prospective Economic Advantage 276. length here. 277. Plaintiff had a reasonable expectation of economic advantage or benefit in Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
connection with his employment by the City. 278. 279. Defendant Zimmer had knowledge of such expectancy of economic advantage. In her individual capacity, Defendant Zimmer is not a party to any current or
prospective economic relationship between the City and Plaintiff. 280. By taking the actions described above, Zimmer intentionally, wrongfully, and
without justification or excuse, interfered with Plaintiffs prospective economic relationship with the City. 281. In the absence of Zimmers wrongful acts, it is reasonably probable that the
Plaintiff would have realized his economic advantage or benefit. 282. 283. Zimmer and Plaintiff are not parties in direct competition in the same market. As a direct result of the unlawful, intentional and malicious actions of Zimmer,
Plaintiff was damaged. Count Twenty-Five Claim for Attorneys Fees Pursuant to 42 U.S.C. 1988 284. length here. Plaintiff restates all the allegations in the foregoing paragraphs as if set forth at
40
285.
This is an action to enforce provisions of sections 1983 and 1985 of the Civil
Rights Act of 1871. 286. Plaintiff is entitled to a reasonable attorneys fee and his costs incurred in
enforcing the foregoing sections, pursuant to 42 U.S.C. 1988(b), and to expert fees pursuant to 42 U.S.C. 1988(c).
WHEREFORE, Plaintiff Anthony P. Falco demands judgment against Defendants, jointly or severally, as to all Counts of the Complaint, for: a. compensatory damages; b. back and front pay; c. punitive damages; d. reasonable attorneys fees and costs; e. injunctive relief, in the form of an order of this Court enjoining Defendants from continuing or repeating their violation of Plaintiffs Constitutional rights and of the laws of this State; and f. such other and further relief as this Court deems reasonable and just.
Jury Demand Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands trial by jury of all issues so triable.
Certification Pursuant to L. Civ. R. 11.2 The undersigned certifies, in accordance with L. Civ. R. 11.2, that to the best of his knowledge, there are no other proceedings either pending or contemplated with respect to the
41
matter in controversy in this action and that, at this time, there are no other parties known who should be joined in this action.
MURPHY ORLANDO LLC 30 Montgomery Street, 15th Floor Jersey City, New Jersey 07302 (201) 451-5000 Attorneys for Plaintiff /s Jason F. Orlando Jason F. Orlando, Esq. /s John W. Bartlett John W. Bartlett, Esq. Dated: March 18, 2013
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Complaint - Falco v. Zimmer

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Case Case 2:33-av-00001 2:13-cv-01648-CCC-JAD Document 17569 Document Filed 1 03/18/13 Filed 03/18/13 Page Page 1 of 42 1 PageID: of 42 PageID:

As Chief, he has supervised major emergency response efforts, including HPDs

Falco based upon his perceived political affiliation.

City officials regarding his compensation, beginning in early June 2012.

Citys position that the Chief of Police doesnt get overtime.

failure to solve the hit-and-run case of who killed Henry Grossbard.

Mayors cabinet and inner circle.

Copies of the memorandum described in the foregoing paragraph were sent by

staff of the City, each of whom reported directly to Mayor Zimmer.

are subject to injunctive remedy.

As a direct result of the unlawful, intentional and malicious actions of Defendants,

By withholding Chief Falcos overtime pay and by not acknowledging his

As a direct result of the unlawful, intentional and malicious actions of Defendants,

Defendants actions, as described above, violated the rights, privileges, and

annual compensation, including sick incentive pay.

202. law. 203. 204.

Plaintiff has a legitimate claim of entitlement to this compensation under state

Plaintiff has a legitimate claim of entitlement to this compensation under state

uniform allowance, without any rational basis for doing so.

Defendants actions thereby denied Plaintiff his fundamental right to equal

Defendants intentionally singled out Plaintiff by unilaterally changing City policy

Plaintiff suffered and continues to suffer damages.

Plaintiff suffered and continues to suffer damages.

Defendants participation in each violation described in Counts One through

As a direct result of the unlawful, intentional and malicious actions of Zimmer,

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