White Collar Crime News

NJ fights PTI applications for first offenders February 25, 2009

For non-lawyers, this might be dull, but for me, this is interesting reading.  The attorneys on this case are damn good attorneys and it is said to see that they lost.  It is amazing that the State spent so much time and money to prosecute these guys.  Why stick them with a criminal record?  What will that solve.   I think this is all political, but that’s just my take.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4267-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GEORGE FLEGAL AND

RICHARD OTTENS, JR.,

Defendants-Respondents.

February 25, 2009

Submitted October 28, 2008 – Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 06-06-0070-S.

Anne Milgram, Attorney General, attorney for appellant (Edward R. Bonanno, Deputy Attorney General, of counsel and on the brief).

Benedict and Altman, attorneys for respondent George Flegal (Joseph J. Benedict and Philip Nettl, on the brief).

Mohel & Billhimer, attorneys for respondent Richard Ottens, Jr., join in the brief of respondent George Flegal.

PER CURIAM

Defendant George Flegal was the general manager of United Water Toms River (UWTR), which is a public community water supply system that supplies approximately 50,000 customers. Defendant Richard Ottens, Jr., was the facility’s operations manager. On June 15, 2006, a grand jury indicted defendants based on actions they allegedly took during the course of their employment, charging them with two counts of third-degree tampering with public records or information, N.J.S.A. 2C:28-7a(3) and N.J.S.A. 2C:2-6; and two counts of fourth-degree falsifying records, N.J.S.A. 2C:21-4a and N.J.S.A. 2C:2-6.

Following the county prosecutor’s rejection of their pretrial intervention (PTI) applications, defendants appealed to the Law Division. In a written decision, memorialized in an April 16, 2008 order, the Law Division reversed the prosecutor’s decision and ordered that defendants be admitted into the PTI program. The State appeals. For the reasons that follow, we reverse.

Pursuant to the New Jersey Safe Drinking Water Act, N.J.S.A. 58:12A-1 to -37, New Jersey has enacted primary drinking water regulations incorporating by reference the National Primary drinking water regulations in 40 C.F.R. 141. N.J.A.C. 7:10-5.1. “The monitoring and analytical requirements for determining compliance with the maximum contaminant levels shall be those established under the National Regulations.” N.J.A.C. 7:10-5.3(a). Those regulations require that samples taken for analysis be representative, 40 C.F.R. 141.24(f)(1), and a supplier of public water is required to submit a compliance sampling report to the New Jersey Department of Environmental Protection (NJDEP) within the first ten calendar days of the month following the month in which any test, measurement or analysis is made. 40 C.F.R. 141.31(a). If the sampling exceeds the maximum contaminant level (MCL), the water supplier must notify the public as well as the NJDEP. N.J.A.C. 7:10-5.5(a).

Among the substances for which tests are to be performed are radionuclides, which are naturally-occurring elements in water. For a community water system serving in excess of 10,000 customers, like the UWTR, radionuclide contamination levels are monitored by testing for Gross Alpha particles, radium-226 and radium-228. 40 C.F.R. 121.26(a)(1). These elements may not exceed maximum contamination levels.

In the context of these regulations, the State contends that defendants manipulated and otherwise impaired the public records by obtaining an unrepresentative water sample and filing documents containing false information about the water analysis. In rejecting defendants’ PTI applications, the PTI Director summarized the State’s allegations against defendants as follows:¹

According to NJ Attorney General Office reports, the State of New Jersey adopted the safe drink water act on 1/20/04, which required community water systems to monitor the presence of radionuclide contamination. The tests were to be performed for four consecutive quarters, beginning in 2005. The Safe Water Act requires the supplier of water to submit a compliance sampling report to the DEP within the first ten calendar days of the month, following the month in which any test, measurement or analysis is made. The United Water Company conducted the routine monitoring for the presence of drinking water contaminants during 2005. The tests disclosed that certain company wells exceeded the standard maximum contaminant level (mcl) for gross alpha and for combined radium 226/228. Because the levels exceeded the standard of 15 gross alpha pico curies per liter, the water company should have reported the violations to the DEP within forty-eight hours after becoming aware of the violations. The company failed to notify the DEP of the radionuclide monitoring results. The general manager, George Flegal, and the operations manager, Richard Ottens, reported they did not know the test results were to be filed quarterly. The DEP issued a notice of violation to the water company on 2/07/06.

After United Water Management was advised that its subsidiary, United Water Toms River, management did not file a quarterly radionuclide report for the year 2005, an internal investigation was launched by the parent company. The investigation revealed on 7/21/05, Mr. Flegal and Mr. Ottens exchanged e-mails indicating the two planned to manipulate the September 2005 third quarter radionuclide sampling process at the Berkeley plant point of entry [POE] no. 6. That point of entry received water from three wells, no. 33, no. 34 and no. 35. Records indicated well no. 35 produced 800 to 900 gallons daily for the month of September 2005, but on 9/12/05, the day the radionuclide samples were taken, the output recorded for well no. 35 was 479 gallons. The investigation concluded that well was turned off during the sampling process.

On 4/04/06, both Mr. Flegal and Mr. Otten[s] were interviewed at corporate headquarters in Harrington Park. Both Mr. Ottens and Mr. Flegal denied they instructed the plant operator to turn off the well on 9/12/05. When confronted with the e-mail exchange, Mr. Flegal admitted he and Mr. Ottens had agreed to turn off well #35 during the 9/12/05 sampling, to “get the best numbers we could on radionuclides.” He stated only he or Mr. Otten[s] had the authority to direct a well be turned off. Investigators questioned plant operator, John McDonnell, who stated he was instructed by Mr. Ottens to shut down well no. 35 at 6:00 am on 9/12/05. Plant operator Paul Dunn reported he turned the well back on at 3:15 pm, in response to Mr. Otten[s]’s direction.

Put simply, the State alleges that defendants shut down well 35 when it was tested on September 12, 2005, in an effort to distort the test sample results. Ottens admitted that all wells should have been on when the sample was taken from POE 6 and that if it was not on, the analysis of the well would have been skewed. He further acknowledged that only he and Flegal had the authority to shut the well down. When questioned whether he did in fact shut it down on September 12, 2005, he indicated that he could not remember, but if he did, it would be noted in the logs. Subsequently, the State learned from McDonnell that he shut down well 35 on September 12, 2005, at Ottens’s direction, which the operator’s log confirmed. Flegal acknowledged that shutting the well down would “help their analysis.”

Although the appendix on appeal contains neither Ottens’s nor Flegal’s applications for PTI, according to the trial court’s opinion, when Flegal’s employer interviewed him in April 2006, he indicated that in 2005 UWTR performed radionuclide sampling outside of the required quarterly sampling to enable UWTR to compare test results from the two outside laboratories that it used to test samples. Although he stated that his understanding was that UWTR needed to report exceedances only when UWTR had fourth quarter results, he admitted that he may have been mistaken, as he was confused as to UWTR’s reporting obligations due to regulation changes.

According to the trial court, in Flegal’s statement to the PTI program, he said he believed the problem was with the testing protocol rather than with well 35, and he had intended to take well 35 off-line prior to the September 2005 sampling date and keep it off-line, so that by that date the “high demand for water would decrease such that wells 33 and 34 could meet the demand.” Flegal admitted, however, that because well 35 was turned off prior to the third quarter sampling and turned back on shortly thereafter, the testing would not have disclosed a representative sample.

Neither Flegal nor Ottens has prior criminal convictions. Flegal is a fifty-seven-year-old civil engineer with a master’s degree in business administration. He has since retired from his position as general manager of UWTR. Flegal has attached letters to his brief on appeal from a number of friends and associates who have indicated that they have known him for years; he is an excellent engineer; he is kind, considerate and has demonstrated honesty, professionalism and integrity. Ottens is in his early fifties and has since been terminated from his position as operations manager.

The PTI Director rejected defendants’ PTI applications. Pertinent portions of the rejection letter are as follows:

The Safe Drinking Water Act was put into place to monitor the presence of radionuclide contamination. The water supply utilized by thousands of residents on a daily basis, and your manipulation of the water supply is a clear breach of public trust. This is not a victimless offense, and PTI is intended primarily for those charged with victimless offenses. The citizens of these municipalities are the victims. When individuals employed in such capacity tampered with water supply to obtain a positive result, prosecution is necessary. There is a strong need to deter this behavior through prosecution. It does not appear that your crimes are casually related to any problems, situations, or conditions conducive to change in the PTI program.

Guideline 1(a) emphasizes that social, cultural and economic conditions often result in a defendant’s choice of environmental compulsion to commit crime. PTI seeks to solve personal problems which tend to result from the conditions that appear to cause crime. Moreover, the facts and nature of this crime outweigh[] any benefit that you would derive from the PTI program.

Despite the impressive efforts and gains by the Environmental Protection Agency to make [our] environment and natural resources safe, your behavior in this offense shows that we continue to face a serious threat to the health, safety and welfare of the citizens in our community. Diversion into the PTI program would not show a sufficient deterrent.

. . . [I]t is felt the needs and interest of society must be taken into account when considering an application for entrance [into] PTI on cases like this. Safe drinking-water supplies are critical to maintaining and preserving public health. In these types of cases, the public demand for prosecution clearly outweighs any benefits to be obtained through supervisory treatment. Enrolling you into PTI would likely depreciate the seriousness of the offense.

. . . .

The applicable law requires [drinking water] be analyzed for radionuclides to be one “representative” of the waters entering the point of entry into the distribution system during periods of normal operating conditions. It is clear that shutting down a well prior to sampling results both in unlawful activity and in a sample not clearly “representative” of the waters entering the point of entry. You admitted in your statement the motive for shutting down the well was to “get better numbers.” It is in the interest of our community you endure a more stringent form of punishment.

In response to defendants’ motions to the trial court for admission into the PTI program, the prosecutor expanded upon the PTI Director’s reasons, which were substantially the same for each defendant, for denial of the applications.

First, the prosecutor related Flegal’s version of the facts. Flegal said that UWTR performed radionuclide sampling outside of the required quarterly sampling to enable UWTR “to compare the test results from the two outside labs that were being used to test samples for radionuclides.” It was his understanding “that 2005 was UWTR’s compliance year and that only when UWTR had four quarterly results would there be a need to report any exceedances,” although he admitted that his understanding may have been mistaken. He acknowledged that if a well was not in production, the sampling would not be representative — the results would be skewed. He denied that he would shut down a well to take a sample. Nevertheless, after being shown the e-mails to Ottens, according to the prosecutor, Flegal admitted sending them, and he admitted that “the e-mail exchange confirmed that he and Ottens had agreed to turn Well No. 35 off during the September 12, 2005 . . . radionuclide sampling in order to get the best numbers they could on radionuclides since Well No. 35 exceeded the MCL for Gross Alpha in the second quarter.”

After reviewing the facts, the prosecutor asserted that the PTI Director properly rejected defendants’ application for PTI. The prosecutor agreed with the PTI Director’s decision to give substantial weight to the following factors:

1) the nature of the offense (N.J.S.A. 2C:43-12e(1) and N.J. Court R. 3:28 Guideline 3(i); 2) the value of supervisory treatment would be outweighed by the public need for prosecution (N.J.S.A. 2C:43-12e(14)); 3) the harm done to society by abandoning criminal prosecution would outweigh the benefits to society of channeling an offender into a supervisory treatment program (N.J.S.A. 2C:43-12e(17); and 4) a breach of the public trust where admission into PTI would deprecate the seriousness of defendant’s crime (N.J. Court R. 3:28 Guideline 3(i)(4).

The prosecutor then added the following:

The conduct of defendant Flegal and defendant Ottens threatens the integrity of the Safe Drinking Water Act’s reporting requirements, which are designed to protect the public from unsafe drinking water. PTI admission for defendants Flegal and Ottens would send a message that efforts to undermine the regulatory system designed to protect something as essential to the public as its water supply are not taken seriously by the criminal justice system. As the Legislature noted in its legislative findings for the Safe Drinking Water Act, . . . “the maintenance of high quality potable water is essential in order to safeguard the health and welfare of people of the State . . .” Defendants[‘] . . . efforts to skew results which would conceal the true quality of public drinking water is a direct threat to a regulatory system that is vital to human health. Accordingly, the nature of the offense (N.J.S.A. 2C:43-12e(1)); the value of PTI being outweighed by the public need for prosecution (N.J.S.A. 2C:43-12e(14)); the harm done to society by abandoning prosecution (N.J.S.A. 2C:43-12e(17)), the needs and interests of society (N.J.S.A. 2C:43-12e(7)); and the facts of the case (N.J.S.A. 2C:43-12e(2)) are all significant factors weighing against defendant’s admission into PTI.

The State . . . believes that the possible injurious consequences of defendants’ conduct, (N.J.S.A. 2C;43-12e(10)) is also a factor that is applicable in this case and would also militate against defendant’s admission into PTI. By attempting to manipulate the radionuclide results so that they would be within legal limits, defendants were trying to avoid having to report this information immediately both to the public and to the DEP, as required by DEP and federal regulations. By attempting to do this, they were attempting to prevent the public from being aware of a potential risk to the water supply.

The State also believes that as managers of the UWTR facility, which provides drinking water for 50,000 people, defendants had a duty to protect the public, not potentially place the public at greater risk. Few individuals are placed in such a sensitive position as safeguarding the public’s water supply. Both defendants, who had the training, background and education to qualify them to be entrusted with this great responsibility, absolutely abrogated that trust. [Accordingly], the State also believes that the breach of public trust (N.J. Court R. 3:28 Guideline 3i(4)) is another factor which would militate against defendants admission into PTI.

. . . The personal factors that appear to be applicable in this case and favorable for defendant[s] are:

1) the extent to which the applicant’s crime constitutes part of the continuing pattern of antisocial behavior (N.J.S.A. 2C:43-12e(8));

2) the applicant’s record of criminal and penal violations and the extent to which he may pose a substantial danger to others (N.J.S.A. 2C:43-12e(9));

3) history of the use of physical violence toward others (N.J.S.A. 2C:43-12e(12)) and

4) any involvement of the applicant with organized crime (N.J.S.A. 2C:43- 12e(13)).

As the PTI Director correctly notes, other factors relating to PTI assisting the applicant in resolving personal problems that may have led to the commission of the crime would not be applicable here. Thus, the following factors would not be applicable for defendant: the age of defendant (N.J.S.A. 2C:43-12e(3)); the existence of personal problems or character traits related to the applicant’s crime (N.J.S.A. 2C:43-12e(5)); the likelihood that the applicant’s crime is related to a condition that would be conducive to change through participation in supervisory treatment (N.J.S.A. 2C:43-12e(6)); consideration of whether or not prosecution would exacerbate the social problem that led to the applicant’s criminal act (N.J.S.A. 2C:43-12e(11)).

In rejecting the State’s position and ordering that defendants be admitted into the PTI program, the court acknowledged that “the State has considered all relevant factors” in evaluating defendants’ PTI applications. The court nevertheless concluded that the State’s rejection of those applications amounted to a gross and patent abuse of discretion. The court found that the State placed “too much weight . . . on the fact that the crime at issue constitutes a breach of the public trust.” The court stated that the PTI program director “incorrectly cites a breach of the public trust and nature of the offense as two separate reasons for rejecting [d]efendants.” Though acknowledging that this was not a victimless crime, as the health and welfare of the people who would be drinking the water were placed in jeopardy, which implicated N.J.S.A. 2C:43-12e(17), the court found that defendants’ conduct “could also be viewed as an attempt to circumvent the State’s regulatory apparatus, rather than a deliberate attempt to harm the public or a breach [of] any trust owed thereto.” The court made additional findings:

Furthermore, even if the Defendants’ conduct is considered a breach of the public trust, this does not conclusively bar their admission into PTI. Instead, Guideline 2 permits the applicant to rebut the presumption against admission with “compelling reasons”. Here, there are certainly a number of factors that militate in favor of Defendants’ admission into PTI. First, both Mr. Flegal and Mr. Ottens are first time offenders and have taken responsibility for their actions. They have lived exemplary lives up until this point and do not pose a substantial danger to others in line with N.J.S.A. 2C: 43-12e(9). Also, the Defendants do not have any history of use of physical violence toward others or involvement with organized crime pursuant to N.J.S.A. 2C:43-12e(12) and (13) respectively.

Furthermore, the State contends that N.J.S.A. 2C:43-12e(10), which looks at whether the crime is of an assaultive or violent nature, whether in the criminal act, or in the possible injurious consequences of such behavior, weighs against the Defendants. However, despite the State’s contentions, the possible injurious consequences of Defendants’ actions are not assaultive or violent in nature. Defendants’ offenses relate to [their] failure to comply with DEP’s reporting requirements. Although clearly the DEP regulations were enacted to protect the public health related to contaminated drinking water, it would certainly be a gross extension of the analysis to say that Defendants’ actions were assaultive or violent in nature since the radionuclide level would not have exceeded the statutory limit even if well no. 35 was not turned off. Thus, again the State cannot show any harm to the public or potential harm which this vitiates any violent nature to the actions involved here.

In addition, the Defendants’ conduct certainly [cannot] be said to constitute part of a continuing pattern of antisocial behavior pursuant to N.J.S.A. 2C:43-12e(8). Instead, their actions resulted from their unfamiliarity with the newest DEP regulations and miscommunication with each other. Even if this Court does not believe Defendants’ version of the chain of events that led to his indictment, can be viewed as a demonstration of a lapse in judgment.

Furthermore, the PTI Director contends the public demand for prosecution in this case clearly outweighs any benefit to be obtained from supervisory treatment and diversion into the PTI program. The State maintains the PTI would not provide a sufficient deterrent. However, as Defendant Flegal correctly points out, “there is no societal benefit to using the stigma of a criminal conviction to impress upon [Mr. Flegal] the import of protecting the water supply.” Certainly the stigma of the present indictments coupled with the Defendants’ loss of their jobs is sufficient [action] to deter them from committing similar offenses in the future. Furthermore, the needs and interests of the victim and society will still be met here as this indictment clearly sends a message to the Defendants and the public that such conduct will be carefully scrutinized. The PTI program will require these defendants and the community to be reminded that these actions are being redressed and corrected through this rehabilitative program.

Finally the defendants have established that the State’s denial of Defendants’ entry into PTI will clearly subvert the goals underlying the pretrial intervention program. Four of the five goals of PTI set forth in Guideline 1 of R. 3:28 are applicable to the Defendants. While neither Defendant has a particular rehabilitative need so as to fit within Goal (a), they both squarely fit within (b) as both their career and life would certainly be harmed by the imposition of criminal sanctions.

The trial judge concluded:

Although the State has considered all relevant factors, the decision constitutes a clear error in judgment as too much weight was placed on the fact that the crime as alleged constitutes a breach of the public trust. Both the State and the PTI Director failed to give adequate consideration to the other factors that weighed in favor of Defendants’ acceptance into PTI.

PTI is a diversionary program that allows certain offenders to avoid criminal prosecution by receiving early rehabilitative services. State v. Nwobu, 139 N.J. 236, 240 (1995). New Jersey’s PTI program is governed by both statute and court rule. See N.J.S.A. 2C:43-12; R. 3:28. The court rule also contains the “Guidelines for Operation of Pretrial Intervention in New Jersey.” R. 3:28.

If a prosecutor rejects a defendant’s application for PTI, the court will give that decision great deference. State v. Brooks, 175 N.J. 215, 225 (2002). To overcome a prosecutor’s objection, a defendant must clearly and convincingly demonstrate that the prosecutor’s decision constituted a patent and gross abuse of discretion. State v. Watkins, 193 N.J. 507, 520 (2008); State v. Negran, 178 N.J. 73, 82 (2003). A patent and gross abuse of discretion requires a decision so wide of the mark that fundamental fairness and justice requires judicial intervention. State v. Wallace, 146 N.J. 576, 582-83 (1996). Even if a jury may find the evidence insufficient to convict a defendant, that does not dictate admission into a PTI program. State v. Smith, 92 N.J. 143, 146 (1983). Generally, a defendant may show a patent and gross abuse of discretion where he can establish that the decision “(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.” Negran, supra, 178 N.J. at 83 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

The prosecutor’s discretion is circumscribed by the statutory criteria that must be considered when determining whether a defendant should be admitted into PTI. N.J.S.A. 2C:43-12(e)(1) – (17). That discretion must also be exercised within the confines of PTI’s purpose, which “is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system.” Watkins, supra, 193 N.J. at 513. Nevertheless, “[r]ule 3:28 incorporate[s] a presumption against admission for certain classes of offenses.” Ibid. Guideline 3(i)(4) applies the presumption if the crime was “a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant’s crime.”

Here, the record does not support the trial court’s conclusion that the State committed a patent and gross abuse of discretion in denying defendants’ admission into the PTI program or that defendants overcame the presumption against admission to the program. Defendants have not clearly and convincingly shown that the prosecutor’s decision was “so wide of the mark . . . that fundamental fairness and justice require judicial intervention.” Wallace, supra, 146 N.J. at 583.

It is undisputed that the State considered all relevant factors in rejecting defendants’ application. Although a number of factors may militate in favor of defendants’ admission into the program, it was up to the State, not the court, to weigh those factors, and in the absence of a decision that is fundamentally unfair, the court may not disturb the prosecutor’s decision.

No question, defendants were first-time offenders; they have no history of physical violence toward others or involvement in organized crime; nor were their actions part of a continuing pattern of anti-social behavior. N.J.S.A. 2C:43-12e(8), (9), (10), (12), (13). Nevertheless, as the State points out, defendants’ conduct could have caused substantial harm to society and both the value of supervisory treatment that would be afforded by PTI, and abandoning the criminal prosecution, are outweighed by the benefits to society of prosecution. N.J.S.A. 2C:43-12e(14), (17). Significantly, as both the PTI Director and the prosecutor found, defendants’ actions were an obvious breach of the public trust and admission into PTI would deprecate the seriousness of defendants’ alleged crimes. Guideline 3(i)(4). In such a case, the PTI application “should generally be rejected.” Ibid.

Defendants’ actions affected 50,000 customers. Defendants’ conduct, if proved, shows an effort to skew the results of measurements of the quality of public drinking water, and deny knowledge of the quality of the drinking water to the public, constituting a direct threat to the state and federal regulatory systems put in place to assure the public clean and safe drinking water. Defendants’ actions had the potential to place the public at risk. On the facts of the case, the needs and interests of the victims and society in general have been seriously implicated. N.J.S.A. 2C:43-12e(2), (7).

In its decision, the trial court appears to have weighed heavily defendants’ explanation as to why well 35 was shut down. That is not, however, reason to set aside the State’s decision. Even if a jury were to ultimately believe defendants’ explanation of what occurred as opposed to the prosecution’s allegations, that is not sufficient reason to require admission to PTI. Smith, supra, 92 N.J. at 146.

The court also found that “the State cannot show any harm to the public or potential harm.” That, in our opinion, is a mischaracterization of defendants’ alleged conduct. Altering the test results and denying the public knowledge of accurate results is itself harm to the public. Simply because the water was not contaminated by defendants’ actions does not vitiate the public harm in distorting and falsely reporting the results of the testing.

The court further found: (1) the State placed “too much weight . . . on the fact that the crime as alleged constitutes a breach of the public trust”; (2) “the stigma of the present indictments coupled with the Defendants’ loss of their jobs is sufficient . . . to deter them from committing similar offenses in the future. . . .”; (3) “the needs and interests of the victim and society will still be met here as this indictment clearly sends a Message”; and (4) “defendants’ version[s] of the chain of events . . . can be viewed as a demonstration of a lapse in judgment.” In arriving at these findings, the court substituted its opinion for that of the State. The State’s weighing process is qualitative, not quantitative. The weight to be afforded the controlling factors is the responsibility of the prosecutor. It is only when “the prosecutor’s decision could not have been reasonably made upon weighing the relevant factors” that the court should intervene. Nwobu, supra, 139 N.J. at 254. As was the case in Nwobu, “[w]e cannot say that such a decision could not have been reasonably made in this setting.” Ibid.

We reverse the trial court’s order admitting defendants into the PTI program and remand for further proceedings.