SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5650-16T4

 A-1714-17T4

 A-0075-18T4

 A-3428-18T4

CHRISTOPHER J. GRAMICCIONI,

Petitioner-Appellant,

v.

DEPARTMENT OF LAW AND

PUBLIC SAFETY,

Respondent-Respondent.

_______________________________

GREGORY J. SCHWEERS, 

JACQUELYNN F. SEELY and

RICHARD E. INCREMONA,

Petitioners-Appellants,

v.

DEPARTMENT OF LAW AND

PUBLIC SAFETY,

Respondent-Respondent.

_______________________________

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-5650-16T4

MONMOUTH COUNTY 

PROSECUTOR'S OFFICE, 

CHRISTOPHER J. GRAMICCIONI,

GREGORY J. SCHWEERS,

JACQUELYNN F. SEELY, and

RICHARD E. INCREMONA,

Petitioners-Appellants,

v.

DEPARTMENT OF LAW AND 

PUBLIC SAFETY,

Respondent-Respondent.

_______________________________

Argued (A-5650-16/A-1714-17/A-0075-18) April 4, 

2019 and Submitted (A-3428-18) May 3, 2019 –

Decided June 7, 2019

Before Judges Simonelli, Whipple and Firko.

On appeal from the New Jersey Department of Law and 

Public Safety.

Robyn B. Gigl argued the cause for appellants 

(GluckWalrath LLP, attorneys; Robyn B. Gigl, of 

counsel and on the briefs; Victoria Flynn, on the briefs).

Daniel M. Vannella, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Daniel M. Vannella, on 

the briefs).
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A-5650-16T4

PER CURIAM

In these consolidated appeals, the Monmouth County Prosecutor's Office 

(MCPO), Monmouth County Prosecutor Christopher J. Gramiccioni, and former 

Monmouth County Assistant Prosecutors Gregory J. Schweers, Jacquelynn F. 

Seely, and Richard E. Incremona (collectively, appellants), appeal from the July 

6, 2017, October 27, 2017, August 2, 2018, and March 19, 2019 orders of the 

Department of Law and Public Safety refusing, in part, appellants' request for 

defense and indemnification.

On June 16, 2015, Philip Seidle, an off-duty Neptune Township police 

sergeant, shot and killed his ex-wife Tamara Wilson-Seidle with his service 

weapon. Wilson-Seidle's estate (Estate) brought a lawsuit in the United States 

District Court for the District of New Jersey, Kirsten Siedle, et al. v. Neptune 

Township, et al., No. 17-4428 (D.N.J. June 16, 2017), against appellants, as well 

as other law enforcement agencies. 

The Estate has filed one complaint and three amended complaints in the 

district court. Each complaint describes Seidle's history of domestic violence 

towards Wilson-Seidle in the years preceding the fatal shooting. The original 

complaint, filed on June 16, 2017, named the MCPO and Gramiccioni as 

defendants and alleged they failed to properly protect Wilson-Seidle, permitted
4

A-5650-16T4

Seidle to remain on the police force, and improperly returned Seidle's service 

weapons after they were civilly seized.

On June 21, 2017, the MCPO and Gramiccioni sought defense and

indemnification from the New Jersey Attorney General. On July 6, 2017, the 

Attorney General issued a written decision granting in part and denying in part 

the request. Relying upon State v. Wright, 169 N.J. 422 (2001), the Attorney 

General distinguished claims arising from "classic" law enforcement activities, 

which the Attorney General must defend and indemnify, from administrative 

functions, which are carried out on behalf of the county and are not eligible for

defense and indemnification. The Attorney General parsed the original 

complaint and agreed to defend and indemnify the following claims:

 failing to conduct a criminal investigation (including 

failing to monitor evidence of stalking, failing to 

conduct a proper internal affairs investigation and 

failing to prohibit discriminatory or disparate 

treatment of Tamara [Wilson-]Seidle) and prosecute 

Philip Seidle . . . ;

 failing to provide law enforcement protection to a 

victim of domestic violence . . . [;]

 failing to respond properly at the scene . . . ;

 failing to supervise at the scene . . . ;

 failing to file (or assist Tamara Wilson-Seidle in 

filing) a restraining order against Philip Seidle. . . [;]
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A-5650-16T4

 failing to follow the New Jersey Attorney General 

Guidelines to the extent the claim alleges a failure 

to conduct a criminal investigation and/or prosecute 

. . . .

However, the Attorney General refused to defend and indemnify claims related 

to what he determined were a prosecutor's administrative functions:

 failing to properly supervise, monitor, train, retain, 

and discipline officers . . . ;

 permitting and allowing Philip Seidle to remain 

employed . . . ;

 permitting and allowing Philip Seidle to possess a 

service weapon, or any weapon . . . ;

 failing and refusing to keep Philip Seidle disarmed 

. . . ;

 permitting Philip Seidle to be reinstated [following 

a previous suspension] . . . ;

 failing to follow the New Jersey Attorney General 

Guidelines for handling domestic violence 

complaints and incidents involving law enforcement 

(with the exception of any claim for failure to 

conduct a criminal investigation and/or prosecute) 

. . . ;

 returning Philip Seidle's service weapon . . . [;]

 failing to conduct an administrative investigation 

. . . .

The MCPO and Gramiccioni appealed. A-5650-16T4.
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A-5650-16T4

Meanwhile, on October 2, 2017, the Estate filed its first amended 

complaint and added former Monmouth County assistant prosecutors Schweers,

Seely and Incremona (AP defendants) as defendants. The first amended 

complaint alleged that in 2012 the Neptune Township Police Department, the

MCPO, Gramiccioni and the AP defendants disciplined, suspended and seized 

Seidle's services weapons because he cancelled a dispatch call from WilsonSeidle related to domestic violence. Seidle was found unfit for duty and

underwent counseling. The first amended complaint further alleges that months 

later, the Neptune Township Police Department, the MCPO and Gramiccioni 

reinstated Seidle and returned his weapons, notwithstanding escalating domestic 

violence. The complaint also alleges Gramiccioni, Schweers, Seely and 

Incremona failed to take mandated action in response to observed warning signs 

of domestic violence and provide assistance to the victim.

The AP defendants sought defense and indemnification from the Attorney 

General. On October 27, 2017, the Attorney General declined their request,

because the decisions related to Seidle's employment status, the return of his 

service weapons, and the failure to keep Seidle disarmed were related to the 

prosecutors' administrative functions. The AP defendants filed a notice of 
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A-5650-16T4

appeal. A-1714-17. We consolidated the AP defendants' appeal with A-5650-

16.

On April 20, 2018, United States District Court Judge Michael Shipp 

dismissed with prejudice the Estate's claims in the first amended complaint 

against the MCPO and Gramiccioni in their official capacities and in connection 

with their law enforcement investigatory functions. The Estate filed a second 

amended complaint, and the MCPO and Gramiccioni again requested defense 

and indemnification from the Attorney General. On August 2, 2018, the 

Attorney General declined their request and found "the claims asserted in the 

[s]econd [a]mended [c]omplaint pertain[ed] to administrative functions for 

which [the Attorney General] denied representation in connection with the 

initial complaint." Appellants filed a notice of appeal, A-0075-18,1and we 

consolidated that appeal with cases A-5650-16 and A-1714-17.

On December 11, 2018, Judge Shipp dismissed the Estate's second 

amended complaint for failure to plead claims with particularity and noted all 

 

1

 The Attorney General's August 2, 2018 letter was specifically addressed to the 

MCPO and Gramiccioni, but the appeal of the decision is on behalf of all five 

appellants. Because this distinction is immaterial for our purposes and due to 

the significant overlap between the claims at issue, we use "appellants" to refer 

to all five parties seeking defense and indemnification from the Attorney 

General.
8

A-5650-16T4

claims against the MCPO and Gramiccioni connected with their law 

enforcement and investigatory functions were previously dismissed with

prejudice. Judge Shipp made no finding as to whether specific actions were 

administrative or law enforcement functions.

Judge Shipp was unable to discern which legal theory the Estate was 

alleging against which defendant, as well as the facts associated with those 

claims. The Estate was given "one final opportunity to cure the deficiencies" in 

their pleadings and it filed a third amended complaint on January 25, 2019. The 

third amended complaint alleges appellants permitted the re-arming of Seidle 

without condition despite knowledge of his unfitness. Regarding the failure to 

train, supervise and discipline, the third amended complaint alleges Gramiccioni 

failed to oversee, train and supervise the AP defendants and that the AP 

defendants failed to oversee, train and supervise police officers consistent with

the Attorney General's guidelines. The third amended complaint also claims the 

AP defendants failed to help Wilson-Seidle obtain a restraining order in 

compliance with the Attorney General's guidelines to protect victims of 

domestic violence.2

 

2

 Appellants' motion to dismiss the third amended complaint is pending in 

federal court at the time of this writing.
9

A-5650-16T4

We requested supplemental briefing to clarify how the third amended 

complaint affected the consolidated appeals, and we received briefs on March 

12, 2019. On March 19, 2019, the Attorney General denied appellants' request 

for defense and indemnification related to the third amended complaint. On 

April 12, 2019, appellants filed a notice of appeal and subsequently moved to 

consolidate with the prior appeals, which we granted. A-3428-18.

Within this framework, we review each appeal in turn.

I.

Our first inquiry is whether the Attorney General properly denied defense 

and indemnification to the MCPO and Gramiccioni for actions related to Seidle's

continuing employment, the return of Seidle's service weapons, the failure to 

follow the Attorney General's guidelines for handling domestic violence 

complaints and the failure to conduct an administrative investigation.

"We review the Attorney General's administrative determination in 

accordance with a deferential standard of review." Lavezzi v. State, 219 N.J. 

163, 171 (2014). The Attorney General's action carries a "strong presumption 

of reasonableness." Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 

N.J. 5, 16 (2006) (quoting City of Newark v. Nat. Res. Council, 82 N.J. 530, 

539 (1980)). We will "not reverse the Attorney General's determination unless 
10 A-5650-16T4

it is arbitrary, capricious or unreasonable or it is not supported by substantial 

credible evidence in the record as a whole." Lavezzi, 219 N.J. at 171 (quoting 

Prado v. State, 186 N.J. 413, 427 (2006)). "Moreover, '[a] reviewing court may 

not substitute its own judgment for the agency's, even though the court might 

have reached a different result.'" Allstars Auto Grp., Inc. v. N.J. Motor Vehicle 

Comm'n, 234 N.J. 150, 158 (2018) (alteration in original) (quoting In re 

Stallworth, 208 N.J. 182, 194 (2011)). Although we defer to an administrative 

agency's findings of fact, "to the extent that the Attorney General's 

determination constitutes a legal conclusion, we review it de novo." Lavezzi, 

219 N.J. at 172. 

The Attorney General owes defense and indemnity to "State employee[s]." 

N.J.S.A. 59:10-1. County prosecutors, like appellants herein, occupy the 

"hybrid role" of serving both the State and county. Lavezzi, 219 N.J. at 174-75. 

When county prosecutors exercise their law enforcement authority, they are 

acting on behalf of and accountable to the State. N.J.S.A. 2A:158-4; Lavezzi, 

219 N.J. at 174; see also Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996) 

("It is well established that when county prosecutors execute their sworn duties 

to enforce the law by making use of all of the tools lawfully available to them 

to combat crime, they act as agents of the State."). When county prosecutors 
11 A-5650-16T4

"perform administrative tasks unrelated to their strictly prosecutorial functions, 

such as a decision whether to promote an investigator, the county prosecutor in 

effect acts on behalf of the county that is the situs of his or her office." Lavezzi, 

219 N.J. at 175 (quoting Coleman, 87 F.3d at 1499).

In Wright, our Supreme Court explained the Attorney General must 

defend and indemnify county prosecutors "for the tortious actions" committed 

"in the performance of their law enforcement duties." 169 N.J. at 452. However, 

when county prosecutors are sued for actions performed while carrying out 

administrative tasks, they are not considered "agents" or "officers" of the State 

and no defense and indemnification is owed. Ibid. In Wright, the county 

prosecutor was entitled to indemnification because the alleged wrongs occurred 

during the investigation, arrest and prosecution of a criminal defendant. Id. at 

453.

The Lavezzi Court explained the distinction between law enforcement and 

administrative actions:

the question is not whether the underlying liability has 

any nexus to law enforcement; a personnel or 

organizational decision is deemed administrative even 

if it affects the manner in which the prosecutor's office 

administers its law enforcement responsibilities. 

Instead, the test is whether the act or omission of the 

county prosecutor's office and its employees that gave 

rise to the potential liability derived from the 
12 A-5650-16T4

prosecutor's power to enforce the criminal law, and 

constituted an exercise of that power.

[219 N.J. at 178 (emphasis added).]

To "derive[] from the prosecutor's power to enforce the criminal law" refers to 

core prosecutorial functions, such as investigation, seizure of evidence and 

prosecution. Id. at 178-79. It also includes the supervision and training of

subordinate prosecutors, police officers and detectives exercising the same law 

enforcement authority. See Van de Kamp v. Goldstein, 555 U.S. 335, 344 

(2009) (United States Attorney's Office entitled to § 1983 immunity because the 

failure to maintain a database to track impeachment material, while an 

administrative task, was "directly connected with the conduct of a trial").

The plaintiffs in Lavezzi sued the Essex County Prosecutor's Office for 

destruction of evidence seized and then neglected in storage. Id. at 166. Our 

Supreme Court was careful to draw the line between law enforcement and 

administrative functions. Id. at 179. If the plaintiffs' property was damaged at 

the conclusion of a criminal investigation, the retention of the property 

"derive[d] from and directly relate[d] to the [county prosecutor's] law 

enforcement function[.]" Ibid. However, if the plaintiffs' property was stored 

in a facility at the direction of the county, and the property damage resulted from 
13 A-5650-16T4

the condition or maintenance of the county facility, the claim was derived from 

an administrative function. Id. at 180.

Upon becoming aware Seidle was the subject of a domestic violence 

complaint, appellants were required to oversee the return of Seidle's service 

weapons. Pursuant to Attorney General Law Enforcement Directive No. 2000-

3 (Directive), county prosecutors must investigate police officers who are 

alleged to have committed acts of domestic violence to determine whether the 

officer should be permitted to carry a service weapon. Attorney General, Law 

Enforcement Directive No. 2000-3, at 2-3 (Sept. 1, 2000). When an officer's 

service weapon is seized, absent a court order, the county prosecutor may 

authorize return of the service weapon subject to certain conditions.

Appellants argue compliance with the Directive is a law enforcement 

function and point to the Directive's introduction, which, in part, reads "[a]ll law 

enforcement agencies and law enforcement officers in the State are required to 

cooperate with the Attorney General to secure the benefits of a uniform and 

efficient enforcement of the criminal law[.]" Directive, at 1. We disagree.

Prosecutors have two separate obligations pertaining to a police officer 

alleged to have committed domestic violence. One is classic law enforcement, 

i.e., the obligation to investigate and enforce criminal laws, including instances 
14 A-5650-16T4

of domestic violence. N.J.S.A. 2C:25-19. The second is the obligation to 

maintain control over the weapons seized from officers and to determine when 

and if the officers should be re-armed and allowed to serve as an officer.

Directive, at 3-5. The Attorney General acknowledged and agreed to defend and 

indemnify appellants as to any allegations within the former category but not 

the latter, because the oversight and eventual return of seized weapons is an 

administrative, rather than prosecutorial function of the prosecutor's office.

Indeed, in New Jersey, all weapons, firearms purchaser identification 

cards and permits to purchase a handgun seized under N.J.S.A. 2C:25-21(d)(1) 

must be delivered to the county prosecutor in the county where the alleged 

domestic violence occurred. The determination of whether the weapon will be 

returned is subject to a civil proceeding, not a criminal proceeding, and is an 

administrative function of the prosecutor. N.J.S.A. 2C:25-21(d)(3). To that end, 

most prosecutor's offices in New Jersey have weapons return units dedicated to 

this function.

Here, compliance with the Directive related to appellants' administrative 

duties. The fact that the offender in this case was a police officer does not alter 

the analysis. Under the Lavezzi test, the allegations concerning the re-arming 

of Seidle fall squarely into the administrative category.
15 A-5650-16T4

The allegations pertaining to the failure to supervise, monitor, train, 

retrain and discipline and Seidle's continued employment also fall into the 

administrative category. Coleman, 87 F.3d at 1499. Appellants assert, pursuant 

to Van de Kamp, that supervision of the police force is a prosecutorial function.

However, the Estate has not alleged conduct that arose in connection with an 

instance of failure to supervise, train or discipline "intimately associated with 

the judicial phase of the criminal process." Van de Kamp, 555 U.S. at 345

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Unlike Van de Kamp,

the allegations in the first amended complaint of failure to supervise, monitor, 

train, retrain and discipline have no nexus to any criminal investigation or 

prosecution. Therefore, we discern no error in the decision by the Attorney 

General to deny defense and indemnification for liability arising from such 

functions, and we affirm the July 6, 2017 order.

II.

We now turn to the second appeal, A-1714-17, in which the AP defendants 

appeal from the Attorney General's October 27, 2017 letter denying defense and 

indemnification for the Estate's first amended complaint.

In his letter, the Attorney General reiterated his commitment to defend 

certain claims but not others pursuant to Wright. However, we discern error in 
16 A-5650-16T4

the Attorney General's ultimate determination to deny relief because certain law 

enforcement-related claims, which the Attorney General agreed to cover in the 

first instance, were re-pled in the first amended complaint.

Appellants are entitled to defense and indemnification with regard to the 

allegations arising from the exercise of their law enforcement authority. Though 

purportedly dismissed with prejudice, some previously dismissed allegations

were simply rearranged and incorporated into the remaining claims against the 

appellants. Defense and indemnification by the State is still warranted for those

allegations because appellants were still required to appear and seek dismissal.

We include a paragraph-by-paragraph comparison in our discussion below.

Accordingly, notwithstanding our deferential standard of review, we disagree

with the Attorney General's conclusion denying coverage for all claims in the 

first amended complaint as a matter of law and reverse the October 27, 2017 

order in part.

III.

In A-0075-18, appellants appeal from the August 2, 2018 blanket refusal 

to defend and indemnify them from claims contained in the second amended 

complaint. In denying the request, the Attorney General reasoned that because 

Judge Shipp dismissed all claims related to law enforcement and investigatory 
17 A-5650-16T4

functions, any remaining claims in the second amended complaint necessarily 

pertained to administrative functions.

However, the following side-by-side comparison of the original, first and 

second amended complaints demonstrate certain law enforcement-related 

allegations, previously deemed covered by the Attorney General, were again

pled in the first and second amended complaints.

Complaint 

Paragraph No.

First Amended 

Complaint 

Paragraph No.

Second Amended 

Complaint 

Paragraph No.

27(d) 29(d) 29(d)

65 67 78

66 68 79

68 70 81

74 76 89

76 78 91

77 79 92

78 80 93

82 84 97

85 87 100

90 92 108

101 103 145

102 104 160

103 106 --

108 111 --

114(9), (10) & 

(11)

117(9), (10) & 

(11)

202(4) & (9)

116 119 179(10) &(11); 

119 (listed 

between 202 and 

203)
18 A-5650-16T4

142 145 --

144 147 --

Many of the allegations were identical throughout all three complaints. 

For some claims, the only difference was the paragraph or sub-paragraph they 

fell under. Thus, the Attorney General should have scrutinized the first and 

second amended complaints and provided coverage to the extent it found claims 

it agreed to cover in the original complaint were re-pled. Therefore, we reverse 

the August 2, 2018 order in part.

IV.

On March 19, 2019, the Attorney General issued a final agency 

determination, A-3428-18, by way of written decision, denying appellants'

request for defense and indemnification as to the third amended complaint. In 

dismissing the first and second amended complaints without prejudice for lack 

of specificity, Judge Shipp also dismissed with prejudice the portions of those 

complaints that related to appellants' law enforcement and investigatory 

functions.

In the third amended complaint, under the section entitled "Nature of the 

Action," the Estate identifies each appellant and states "[a]t all relevant times 

[appellants] were acting in an administrative capacity as opposed to a law 
19 A-5650-16T4

enforcement or investigatory function[.]" The Attorney General seized on this 

language and issued a blanket denial of defense and indemnification for all 

claims in the third amended complaint. However, the Attorney General 

overlooked portions of the third amended complaint where allegations it 

originally agreed to provide defense and indemnification were scattered among 

different areas of the complaint.

For example, the Attorney General agreed to provide defense and 

indemnification for claims related to "fail[ure] to file (or assist Tamara WilsonSeidle in filing) a restraining order against Philip Seidle[.]" This same claim 

was made again in the third amended complaint against the AP defendants in 

paragraphs 514, 527, 539, and 551, yet the Attorney General declined to provide 

defense and indemnification. We realize the bulk of the claims brought against 

appellants in the third amended complaint concern compliance with the 

Directive, which we have explained relates to appellants' administrative duties. 

Nevertheless, appellants were entitled to defense and indemnification, no matter 

how little, for claims related to exercise of their law enforcement authority.

Ultimately, we conclude the Attorney General properly applied Wright

and correctly determined which claims in the original complaint pertained to 

appellants' law enforcement or administrative functions. However, the Attorney 
20 A-5650-16T4

General was required to, but did not, apply the same scrutiny to the subsequent 

amended complaints. We reverse the Attorney General's denial of defense and 

indemnification as to the first amended, second amended and third amended

complaints to the extent that certain allegations, previously determined by the 

Attorney General to relate to the exercise of law enforcement functions, and thus 

covered under Wright, were re-pled notwithstanding their purported dismissal 

with prejudice.

At this point, the most realistic and practical resolution is for appellants 

to make an application in the Law Division, pursuant to our ruling, for 

reimbursement to recover the portion of the costs incurred in the defense of those 

allegations relating to the exercise of law enforcement authority previously 

deemed covered by the Attorney General but for which defense and 

indemnification was later disclaimed. See Lavezzi, 219 N.J. at 180 (noting "the 

State may pursue a claim against the County for reimbursement of all or part of 

its costs incurred in the defense and indemnification of the [p]rosecutor's [o]ffice 

employees").

Affirmed in part, reversed in part.