-e822fe4155ea0b7f.JPG
An appeals court ruled suspended Edison police Lt. William Gesell, who is facing criminal charges, is entitled to unemployment benefits.
(Patti Sapone | N.J. Advance Media)
EDISON -- An appeals court has sided with an Edison police officer, suspended after being charged with unlawfully accessing a police computer data base, and ruled that he is entitled to unemployment benefits.
The two-judge panel upheld a decision by the Board of Review in the state Department of Labor that overturned a decision by the deputy director of the Division of Unemployment Disability Insurance denying William Gesell's application for unemployment in April 2014.
The decision by the deputy director was made after Gesell was suspended by Edison police Chief Thomas Bryan on March 31, 2014 from the police department after he was charged on March 22, 2014 by the Middlesex County Prosecutor's Office with unlawful access to a law enforcement database for the purpose of obtaining information to retaliate against a North Brunswick police officer and conspiring with two other Edison police officers to retaliate against the same North Brunswick officer.
The deputy director claimed Gesell was ineligible because he was unavailable for work commencing on March 30, 2014.
Gesell appealed the decision to the Appeal Tribunal, according to the nine-page appellate decision, released Thursday.
The 22-year veteran of the police department admitted to the tribunal that he accessed the database, but he said "I accessed it in legal, legitimate lawful purpose but the prosecutor's office doesn't agree with me."
Gesell denied that he had any intention of retaliating against anyone.
He also told the tribunal's examiner that his department has no regulations that limit the access to the data base except "I just have to have a legitimate lawful purpose at the time."
Under questioning, Gesell said his reason was legal, but acknowledged that when asked 18 months later about his reason for accessing the data base when he did, "I couldn't remember the specific reason which I don't think anyone could a year and a half after they ran a person's plate. And we're not required to keep notes to why we ran them."
The judges said the township argued the criminal charges themselves were reason enough for the employer to oppose Gesell's application for unemployment benefits based on gross misconduct, both before the tribunal and before the appeals court.
The tribunal reversed the deputy director and approved unemployment benefits for Gesell. The appellate judges affirmed the decision.
"We are deeply troubled that a municipality in this state would advance such a fundamentally profound misstatement of law," the appellate judges said, noting that charges and indictments are not convictions--they are not evidence of guilt.
The judges said the township could have "called a witness or introduced competent authenticated documents to rebut Gesell's testimony that the police department does not have an established protocol for police officers to access this particular law enforcement database."
Without any kind of counter proof from the township, the judges said the criminal charges are not enough to prevent Gesell from receiving his unemployment benefits since he is innocent until proven guilty of the criminal charges.
"We respect the Appellate Division, but we respectfully disagree with its ruling here," said Edison officials in a statement released in the afternoon. "A sworn law enforcement officer has been charged with several crimes by an outside agency and has been suspended without pay from his duties in the township. He was subsequently indicted on those charges."
The statement said the township "believed, and still believes, the charges by the Middlesex County Prosecutor's Office, detailing criminal misuse of sensitive data reserved for legitimate law enforcement functions, provides 'competent evidence' establishing 'gross misconduct.'
The statement further said "the township is reviewing its options and will decide shortly whether to seek further review of this issue."
Gesell, 47, of Edison, who was a lieutenant, and the two other police officers he is charged with, Michael Dotro, 38, of Manalapan, Victor Aravena, 44, of Edison, and Dotro's wife, Alyssa, are scheduled for trial on Sept. 16, 2016, before Superior Court Judge Alberto Rivas.
Authorities said the three officers planned to retaliate against the officer who arrested another man for drunken driving. The man was related to Dotro.
Sue Epstein may be reached at sepstein@njadvancemedia.com. Follow her on Twitter @susan_epstein. Find NJ.com on Facebook.