Article provided by James M. Porfido Attorney at Law, LLC

Abusing Power

Using your influence or personal network of connections to keep a friend or child out of trouble might seem like second nature to many individuals. But when you do such a favor — or outright abuse your power — and you are in a public service position you might find yourself facing charges of official misconduct.

Former Hackensack Chief Police Charles “Ken” Zisa has found himself facing just that. Zisa was accused of improperly intervening in a case where a personal conflicted existed.

In 2004, the son of Zisa’s then-girlfriend, Kathleen Tiernan, was a suspect in a robbery and assault case of a 15-year-old boy outside of a convenience store. According to the two Hackensack police officers writing the official robbery report, Zisa told their immediate supervisor to make sure that a report on the incident included no reference to Tiernan’s son.

First Assistant Bergan County Prosecutor William Galda noted, “Zisa involved himself in the matter where a conflict clearly existed. And through [his] actions and inactions…charges were not filed against any of the suspects although probable cause to charge clearly existed.” Even though Zisa might have thought he was doing his girlfriend a favor, his actions have had much wider repercussions – leading him to being charged with official misconduct after a lawsuit was filed against him in May 2010.

In another incident last year, two officers of the Randolph police department, one of whom was represented by attorney James M. Porfido, lost their jobs for the “unarrest” of a DWI suspect. The officers attempted to remove the DWI arrest from computer dispatch records after they learned that the suspect was related to another officer. Though both lost their jobs, they avoided prosecution, and a potential state prison sentence, by enrolling in a pretrial diversionary program. The charges against both will be administratively dismissed if they avoid any further incidents with the law.

Official Misconduct Defined by State Law

Under New Jersey Statue 2C:30-2, official misconduct occurs when a public servant purposefully commits an act relating to his office that is an unauthorized exercise of his official duties in order to obtain a benefit for himself or another. Generally, it is a crime of second degree, although if the monetary value of the benefit obtained is less than $200 then it is a third degree crime.

New Jersey state law also considers it a crime if there is a pattern of official misconduct – that is, committing two or more acts that constitute official misconduct. Official misconduct and a pattern of such conduct are considered two separate crimes, punishable by two separate sentences. Under New Jersey Statute 2C:43-6.5, a mandatory minimum of five years in prison is applied to a public servant who is convicted of either of the above charges of misconduct.

The Consequences of Official Misconduct

In Zisa’s case, this means he could be sentenced to five years for official misconduct. Since he is also facing up to five years in prison for an unrelated insurance fraud charge, Zisa could spend up to 10 years in prison.

In addition to possible jail time, Zisa has already seen the financial impact of his actions. Following the filing of the official misconduct charges, Zisa was placed on suspension without pay.

As a further blow to his reputation, two New Jersey state senators have asked that Zisa be removed from the Bergan County Board of Elections. Even though they do not believe there have been any election-related improprieties, they are concerned about how these allegations look to the public. “[Y]ou shouldn’t have anybody involved in an election who you can question their integrity or question their motivation and thus question the outcome of an election,” noted Chris Eilert, spokesman for New Jersey State Senator Paul Sarlo.

Official Misconduct Across New Jersey

Zisa is not currently the only public official in New Jersey currently facing criminal charges of official misconduct. In the last month, numerous charges of official misconduct have been filed against several different state public servants for improper behavior:

• A public works supervisor in Bergan County offered people sentenced to community service with the Department of Public Works to forgo their sentences in exchange for paying him cash.
• A sheriff in Hunterdon County required her top aides to sign loyalty oaths and failed to require background checks on newly appointed investigators and undersheriffs.
• An elections secretary in Passaic County stole over $300,000 through a postage fraud scheme involving mailed sample ballots.
• A councilwoman in Atlantic City voted for a city land sale after already having made a deal with the winning bidder to purchase the land.
• A corrections officer in Passaic County smuggled heroin and homemade weapons into the county jail.

In addition to the tarnished reputations, the loss of jobs and pay, and potentially even their state pension funds, all of these public servants, if found guilty, are facing minimum five-year terms in state prison.

When dealing with charges that affect your career, your reputation, and that carry a mandatory minimum prison sentence, it is essential to seek advice from an experienced criminal defense attorney to learn more about how to defend against charges of official misconduct.