An appeals panel vacated a Newark police officer’s official misconduct conviction because his second gig had no nexus to police duties. (Photo by Dana DiFilippo/New Jersey Monitor)
A New Jersey appeals court on Friday reversed a Newark police officer’s official misconduct conviction, finding the second job he held while on paid sick leave lacked the connection to his official duties needed to sustain such a charge.
Newark police officer Anthony Gibson was convicted of theft and official misconduct for violating department policy that bars officers from working a second job while on paid sick leave, but the latter conviction could not stand, the three-judge panel ruled.
Judge Jack Sabatino wrote for the panel that the defendant’s conduct, although it was a crime of theft, did not constitute the “unauthorized exercise of his official functions.”
New Jersey’s official misconduct statute allows charges against officials if they commit an unauthorized act that leverages their position, but only if that act is related to their office and they are aware it is unauthorized.
Courts have upheld official misconduct convictions where, for example, officers used their police cars or computers for personal business or used their office to avoid scrutiny as part of a shoplifting scheme, the panel said.
But crimes that don’t touch on the office — like keeping money accidentally withdrawn from another person’s bank account at an ATM — do not invoke official misconduct because the offense is not related to an official’s duties.
Gibson’s acceptance of sick time pay fell in the latter category because his second job as a security guard did not involve police duties like arresting and interrogating suspects or securing warrants, the court ruled.
“He did not interact with the public acting, or pretending to act as, a law enforcement official. He was not functioning as a police officer, nor was he portraying himself to others as acting in an official police capacity,” Sabatino wrote.
The Newark Police Department bars its workers from working a second job while out on paid sick leave.
The court upheld Gibson’s theft conviction in an unpublished portion of the opinion that did not set precedent.
The appeals panel remanded the case to a lower court so Gibson could be resentenced. He was originally sentenced to a five-year term for the theft and official misconduct convictions.
He separately pleaded guilty to passing bad checks, conspiracy to distribute controlled dangerous substances, and official misconduct related to the drug charge.
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