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Pollinger Will Remain on Aug. 14 Ballot as a Republican as Judge Craig Denies Challenge

| July 10, 2012

Jake Kaney, the attorney for Anne-Marie Shaffer (foreground), arguing before Flagler County Circuit Judge Dennis Craig Tuesday afternoon. John pollinger is at right. (c FlaglerLive)

Jake Kaney, the attorney for Anne-Marie Shaffer (foreground), arguing before Flagler County Circuit Judge Dennis Craig Tuesday afternoon. John pollinger is at right. (c FlaglerLive)

John Pollinger will remain on the Aug. 14 ballot as a Republican candidate for Flager County Sheriff, Circuit Court Judge Dennis Craig ruled Tuesday afternoon.

The judge rendered his decision just after 3 p.m., orally, after taking a 15-minute break, following 75 minutes of arguments from both sides. The decision is a stinging defeat for Anne-Marie Shaffer, who brought the suit against Pollinger, and supporters of Ray Stevens, another Republican candidate for sheriff.

If there was any hint in how Craig was going to rule, it was in the questions he posed lawyers for each side: he was in search of malice on Pollinger’s part, regarding the candidate’s registration history. Craig didn’t find it.

Shaffer’s attorney said she will be appealing the decision, but that move is largely moot in so far as the Aug. 14 election is concerned, since the court of appeal is not likely to hear the case, or render a decision, that quickly. Craig’s decision certifies the Aug. 14 ballot as it was sent out by the supervisor of elections: the three candidates for sheriff on the Republican ballot are incumbent Don Fleming, Pollinger, and Ray Stevens, who played a role in the challenge to Pollinger’s qualifications as a Republican. (Two Democrats are in the running.)

The lawyers for both sides argued their case for summary judgment, reiterating what they’d said before, all of which came down to this: to Shaffer, Pollinger has no right to be on the Aug. 14 ballot as a Republican because he broke the law by lying about his oath. To Pollinger, he has every right to be on the ballot since he has been a legally registered Republican in Flagler County since 2009. The whole case, Pollinger’s lawyer said, rests on “a stale outdated voter registration that nobody knew about” until the election season, when Pollinger decided to run for sheriff and an opponent found it expedient to keep him from the ballot.

Shaffer was represented by Jake Kaney, an Ormond Beach attorney. Pollinger was represented by Ronald Hertel and Michael Chiumento of Palm Coast’s Chiumento Selis Dwyer.

As at a wedding, Pollinger’s supporters sat in pews on one side of the courtroom, SHaffer’s supporters, very likely Stevens supporters as well, sat on the other side, outnumbered about five to one.

Craig asked Kaney if Pollinger has been living in Florida for the last three years and has been registered in Florida for the past three years, whether he could still vote in New Jersey. Kaney said yes: he could. “So he could pick and choose?” Kaney said he had a valid New Jersey registration, so he could. Craig asked if there was any dispute about Pollinger’s residency status in Palm Coast. Kaney said there is evidence that he has not voted in New Jersey. Kaney also said he was not disputing Pollinger’s permanent residency in Palm Coast for the past three years–or the judge’s statement that in Florida, a voter may not be registered in two parties at the same time.

“Out of all those voters who are registered in two states, I wonder how many of them have different party affiliations,” Craig said. He also asked Kaney whether he’d ever figured out why Pollinger’s registration had not been “terminated” in new Jersey. Kaney said Pollinger did not give his name and last address where last registered. “He didn’t do what he needed to do,” Kaney said. Yet Pollinger turned in his New Jersey driver’s license, the judge noted. Still, Kaney stressed, Pollinger “did not trigger” the correction to his voting registration status in New Jersey.

Hertel countered that line of argument by telling the judge that Pollinger at no time attempted to hide information from the motor voter clerk who took his initial information, when he changed his registration from new Jersey to Florida. Pollinger, Hertel said, was simply not asked any questions about his previous registration address. Indeed, that question isn’t part of the questions clerks at motor voter desks ask registrants in Florida. Hertel also filled in another hole: that New Jersey law does, in fact, require its voters to be legal residents of the state in order to vote. In other words, Pollinger could not have legally voted in New Jersey after moving to Florida. His remaining registration there was “a technicality,” Hertel said.

Kaney had also dismissed another claim in Pollinger’s response to the Shaffer suit: that Shaffer had “ulterior motives” for suing. The motive n play, Kaney said, is to keep Pollinger off the Republican side of the ballot. Pollinger’s contention is that the suit is politically motivated by Shaffer’s allegiance to Ray Stevens: removing Pollinger from the Republican ballot removes a major obstacle to Stevens winning that primary–assuming he could defeat Don Fleming, the incumbent sheriff, who is also a Republican.

“I have to take exception to this,” Hertel said, referring to Shaffer’s claim that the Department of State had rendered opinions regarding the Pollinger case. A lawyer at the Department of State had written Kimberle Weeks, the Flagler County Supervisor of Elections, emails that suggested Pollinger could be deemed not qualified, but that the matter would have to be settled in court. But those emails were not legal opinions, Hertel said–as a footer in each email clearly noted. Still, Shaffer’s case made use of those emails.

Hertel also argued that Shaffer had no standing, as a voter, to sue Pollinger. “There’s the obvious flood-gate argument that comes with that,” Hertel said: any voter could then file suits against candidates from opposite camps.

Addressing Shaffer’s “selfish” motives, Hertel recalled how months before the lawsuit, Ray Stevens had called the supervisor of elections to complain about Pollinger’s previous registration. Subsequently, Shaffer and allies went to work smearing Pollinger’s reputation on a website she set up. That’s her intention, Hertel said: “to destroy Pollinger’s character.”

The two sides ended their opening remarks after 75 minutes of arguments before Craig.

Throughout, Weeks, the elections supervisor, sat to the left of the judge against a wall, with her lawyer, since she was also named in Shaffer’s lawsuit.

The question of who is funding Shaffer’s efforts was not addressed.

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46 Responses for “Pollinger Will Remain on Aug. 14 Ballot as a Republican as Judge Craig Denies Challenge”

  1. Robert Lewis says:


    The only one who should be commended is you. I applaud you for efforts and your friendship to Anne Marie and Ray. You have done your friends a great service by continuing to spit out their hate speech.

    As for the concept of a political deal. This has been one of the first rumors forged by Ray Stevens. He even admits in previous stories how he believe there is a deal. If there is a deal is it anything like the Write-in voter sham being orchestrated by the Ronald Reagan Extremist? If there is a deal, what logical person would invest their own money? Your conspiracy theory sounds great on paper, but the totality of the rumor is as baseless as Anne Maries law suit.

    As for candidate vetting. This is the United States of America, the land of the free. If a person wants to run for office it is their right. Anne Marie is not the Republican Party. The Ronald Reagan Fundamentalist are not the Republican Party. The Republican Party is comprised of the electorate. Those registered by Florida Law as a “republican”. It is their right to decide who will receive the party nomination. Quiet frankly, your entire message is defective because it displays your intolerance of others. Your groups message is interpreted as “follow my way, the only way, or be destroyed”. Are you Republicans or are you terrorist? It seems to me that the Ronald Reagan Fundamentalist is an organizational terrorist group created to infiltrate and destroy the Republican Party.

    I can only assume that had this group been created earlier in history, they would have stood on the wrong side of segregation, equal rights and women suffrage. After all by past practices exemplified your group, it seems they want to cleanse the republican party of those who don’t share your exact values. Would your group have allows Rudy Giuliani to be Mayor of New York? I assume no because maybe he was a RINO or a mole and once a democrat.

    As a Republican, you and your group has destroyed the strength of our party. We now go towards the general election weak and divided. We face democratic opposition wounded because our own party has turned against each other. “A house divided against itself can not stand” and a party divided against itself can not stand.

    Enough is enough. It is time to get out of the mud and do what is right. Stop carrying on the torch of hatred and start rebuilding this party. Stop with the conspiracy theories and making up crap. The voters do not care and they are very tired of this crap. People want a clean campaign.

    As far as laying off a mother of four, Anne Marie is not a victim here. Let’s not even begin to start that crap. She is an instigator. She creates a blog, hid behind an alias called the Researcher and spouted out hate. She called libeled Mr. Pollingers good name to destroy his character. She shows up in the court of law with unclean hands. She masks herself as a concerned citizen when in reality she is carrying out marching orders. She is no victim, she is a pawn. She drank the koolaid of hatred and started a nasty campaign. She should be ashamed of her conduct. She has drawn attention to herself and made comments in the media. She deserves all the grief she is getting for this situation.

    Lastly, I laugh at the accusation of wrong doing of Judge Craig. I can honestly say, I have never met the man in person. But I did research him. You know what I found? What a kind and decent human being he is. I watched some of his interviews on YouTube. He conducts himself in a professional manner. Judge Craig is someone that walks softly while carrying a heavy stick. He does not have to excercise his power in excess, like so many others try to do when elected. To even begin to say he has done anything unethical is an insult to the judicial system.

    It seems to me that who ever disagree with you must be a RINO. I am rather ashamed to call myself a Republicsn with people in the Ronald Reagan Fundamentalist leading the way. In fact, I am sorry that you’re all so angry with life, that you must make hell for others.

    I pray for you that all of you may find kindness and charity on your hearts
    I pray that all of you find the love of God and do what is right for the people, not ones own selfish politically motivated agenda.


    • Linda H. says:

      You are correct, Mr. Lewis. Thank goodness this is the United States of America and we are free to disagree. ALL REPUBLICAN CANDIDATES were offered the oppportunity to fill out a questionaire and participate in our vetting process.

      However, the rules state you must do so in order to be considered. We will have to agree that we disagree.


    • Dudley Doright says:

      Well stated and right on the target! BRAVO!


  2. Andraste says:

    @ PalmCoast >>> LOL You are way to transparent. You were never for Stevens. Please, Please I am begging everyone to just listen to the facts. Mr. Stevens did not break this news. I posted that information because it’s factual. Lets not play the blame game. Now, lets place blame where blame is due…..It starts with deception, and with that comes questions. All you have too do is dig a bit further to find the truth. I can turn right back at you buddy and accuse you of being a Pollinger supporter, however I frankly don’t care who you are supporting. I personally have been vetting candidates for many years. It didn’t take long for me to look into the two high profile court cases that have been making news in Flagler County, both of which are quite interesting. But what I discovered was that out of all the stories I have been following….there was absolutely no truth in them. So you keep digging…

    Truth hurts sometimes. Remember, men died to protect our rights to vote. With voting, comes vetting. Vetting is the most important process in deciding the best qualified person for the job. How on earth is looking into someones backround for a job, a despicable campaign tactic? Unless its something they were trying to hide.

    @ Ray Thorne >>> I have just got done reading the last paragraph in this story. quote: ****** The question of who is funding Shaffer’s efforts was not addressed. ****

    So, its okay to ask who is funding Anne-Marie Shaffer’s lawsuit against Pollinger, diminishing her by saying this poor girl can’t possibly be funding this lawsuit by herself. This of which I find disgraceful to paint this woman to be in some sort of conspiracy against Pollinger. So whats good for the goose?

    Why don’t you follow Pollinger’s money trail? Got proof that $20,000 is indeed his own money? Check Fleming’s money trail……oh please spare me.

    It must be a conspiracy. And those Ronald Reagan Rich Republicans must be help funding this lawsuit because poor Anne-Marie Shaffer can’t possibly be funding this on her own. Next rumor will be is that she is on the food stamp program. I take that as an assault on all women who ever decided to challenge a Good O’le Boys Network. I wouldn’t under estimate this lady. If you ask me, she’s got moxy.

    As for the conspiracy theories that are floating out there. What I have seen so far? Thats what happens when a campaign has an empty message. They attack their opponent.

    Wow, there is so much hatred being spewed around here. My post was not intended to do that. There was not one thing that I posted that is not factual. Truly folks. This is not an attempt to smear Mr. Pollinger. It was important to post some facts that were never mentioned in all the news articles that were printed on this lawsuit. How many puff pieces were printed on Pollinger? Ten, Twelve? I lost count. I never read a piece that painted Mr. Pollinger in a bad light. Never. Infact John Pollinger just may take this election on the sympathy vote, because he was made out to be the victim. You will find in every single article published in the Daytona Beach News Journal and the Palm Coast Observer practically chaining Ray Stevens to a stake, torching the brush and setting him on fire as he were some kind evil vampire. Lets not forget the silver stake through the heart, without a care in the world for this mans family.

    Anne-Marie Shaffer has been publicly gang raped by every single news outlet in these two counties. She has been called everything from a political whore, to the most humiliating things that you can call a woman. A wife and mother of 4 children. There was never a puff piece written on neither Mr. Stevens or Mrs. Shaffer. If Stevens wins this election, its because he won it on his own merits without any help from the press at all.

    I post a few facts about your candidate and again, you blame Stevens, Shaffe and The Ronald Reagan Assembly. They had nothing to do with what I posted. I have just proven that the Pollinger supporters are the real Dirty Campaigners here. But I can assure you, they are not the brightest.

    There also seems to be an all out assault on this Ronald Reagan Assembly. They have nothing to do with what I posted either. But you all have made up your minds that you are going to attack a particular group or individuals, or candidates that you don’t agree with and fill it with hate. My campaign advice to Mr. Pollinger would be to re-group, get them under control and lay off the attacks. Like I said before, he may win the sympathy vote. However he is up against some hard core professional campaigners and he is not going to see the brick wall he is about to hit. That is not a threat in anyway. Just my experience with working with professional campaigners.

    I have been attacked on so many entries that were posted here. Lets keep it that way and not go after the people that had nothing to do with what I posted. I don’t work for Ray Stevens. I don’t work for Anne-Marie Shaffer. I work for myself and if any of you have a problem with that, you can address me personally. I am up for any debate that is filled with substance and facts at anytime.

    @ Donna Heiss I don’t believe that we’ve never met before. However, I have met your husband Mr. Mazzie in the past and wish him well on his campaign for the Clerk of Court. I’ve had heard some nasty rumors about him as well and I find them to be cheap, half-truths and unacceptable. However, it appears that everything they tried to throw at him will not stick. Good for him. What I did hear was that he was a newcomer to the Republican Party and this was also factually wrong. A lifelong Republican, with every right to run on the Republican ticket. Don’t let anyone else tell you otherwise.

    Please keep in mind that my post on Fleming, Pollinger and Stevens has absolutely nothing to do with The Ken Mazzie Campaign. As a previous campaign manager myself, you always stay focused on your campaign, and your campaign only. Keep your campaign distant and detached it from all the other campaigns. Even if you personally want to express your support for another candidate, keep it on the down-low. This will safe-guard your husbands campaign.

    Without you getting upset with me, I can’t help but notice that you are quite unhappy with this Ronald Reagan Group. So sorry to hear that you had a bad experience. Don’t let it get in the way of your campaign. Just move on. You have more important things to think about. One thing I have to say in their defense is that most of those people are the nicest people you would ever meet. Then you got those hardcore campaigners. You just need to know how to separate the two.

    In defense of Linda H. If it is the same Linda H. I am thinking of, she so happens to be one of the finest ladies you will ever meet.

    Lastly… mention in your post that you know who I am. Well you don’t. I don’t know you. If I wanted my identity posted here, I would have posted my last name. Because of the attacks I knew I was going to receive after posting my findings on John Pollinger, my identity needs to be left on a first name basis only. I have my children to protect that live in this community, and they don’t need to be subjected to any of my political involvement. Remember, my post had nothing to do with your husbands campaign.


  3. Will says:

    So Donna Heiss, give us a hint about Andraste.

    I’m not asking that you “out” him or her, but something to provide a frame of reference for the comments might be interesting…

    I go back to my comment above about the county being infiltrated for my own mindset…


  4. Donna Heiss says:

    Linda H, you are the one who does not have the facts straight. Mr. Fleming, Mr. Pollinger and yes my husband Mr. Mazzie are men who would never partake in the in the RRR club who take away the the peoples voice. Did you forget about the 40,000 people denied their right to vote in deciding elections? That is purely un-american. That is the RRR club. While legal, downright dirty. Of course, in my opinion.

    Next time you feel the need to tell someone to tell me to “backoff”, call me directly so I can tell you myself I am not fearful of any of you and will not back off. My number is all over the internet.

    Will, how I would love to give you a hint. The inside world of politics is mind blowing. I have it in writing. I back up everything I post. In due time.


    • Linda H. says:

      Donna, I was not offering them a membership. I simply stated that they all received vetting papers which would allow them to participate in our endorsement process. I am not interested in arguing with you, only clearing up the accusation you made about only members being considered in the vetting process.


    • Think first, act second says:

      Ms Heiss,
      So you want to get the fact straight. Then include this. Ken Mazzie ran for clerk of the courts in 2008 as a Democrat and lost by 13% to the incumbent. He then did not like the Democrat party and knew he could not reach the general election by running against Jeff Atwater the Republican, nor Loranne Ausley the Democrat, so he then ran as an independent and received only 1.6% of all of the residents of Florida. So he has tried the Democrat party, tried Independent and history proving that he could not defeat Ms. Wadsworth as a Democrat, tried the Republican party hoping to draw some of the Democrat voters from 2008 to defeat Ms. Wadsworth in 2012. Is that the correct scenario. Does he have a party that he likes?? He has tried all of them!


  5. Robert says:

    Does anyone care that a Flagler County Sherriff supervisor is still in uniform after frauding (stealing) money from the Sherriff department….and tax paying citizens of Flagler county?

    It is a shame that this wasn’t questioned with the same amount of pasion. All this effort to dis-qualify one man as a republican because he is not your candidate.

    I hope republicans, and all republician groups can rally around Pollinger if he becomes the candidate. After all, isn’t that what our republican affiliated groups are suppose to do?


  6. Donna Heiss says:

    @ Linda

    No accusation, only fact. Way before the endorsements, Mr. U, (I can spell it out for you if you like) came up to a candidate and stated, and I quote: XYZ is getting the endorsement from the RRR club. Maybe you will be “cleansed in four years”.

    Does the RRR feel they are so above the people that it is their job to “cleanse” and purify” the voters of Flagler County to believe only what they believe? Republicans, Democrats and Independents all have equal rights. Why must this club look down on anyone that is not of their belief. Democrats and Independents all have the same right as republicans. Has this club forgotten what century we are in?

    In my opinion, the RRR is just a bully group. Has this club forgotten what is in their very own literature? QUOTE: “The rights and privileges of our Nation belong to its citizens.” Am I correct in assuming it means all citizens? Or just a select few that belong to what amounts to a high school gang.

    For the record, I am a Republican, but more importantly, I am a humanitarian. I believe in equal rights for all and have proven it time and time again.


  7. Donna Heiss says:

    @Think first,

    It is true, My husband, a lifelong Republican, (Proof to back that up) did switch party affiliations to run against the incumbent in 2008. The reason for this was to get through primary as the State of Florida’s Auditor Generals report was due out in October 2008. As we know, according to the state, the report was completed, however, someone asked for it to be withheld. It was finally released in April 2009. It is in black and white and you may read it for yourself. It is not very favorable. Had that report been released before the election, the outcome would have been very different. That is assuming you even care how your/our money was mis-appropriated.

    It is also true, he ran as an independent in the State election. That proved very valuable. Knowledge gained there was how the government works on a state level. How agencies communicate between each other. The reason for running independent was purely for that knowledge. Everyone knows you don’t win an election by being an independent.

    Well the Auditor Generals report is out. The facts are there and Ken Mazzie is back to his original roots of being a republican. You see, he actually cared more about helping the citizens, saving money, running an efficient office and opening communication between the BOCC and Clerks office. The office of the Clerk should, (like Volusia county), be non-partisan anyway, Afterall it is not an office that makes policy. So, there you have it. Ken Mazzie has a true desire to serve the community and and all of its citizens in the most effective, efficient and money saving manner.

    I welcome these questions. Thank you!


  8. Ray Thorne says:

    I heard today that Pollinger will receive the PBA’s endorsement.


  9. tulip says:

    I’ve been reading all these posts and this question came to mind:

    Why would any candidate that was not a member of the RR club want to seek an endorsement from that club when it is well known that they would be endorsing their OWN MEMBER candidates, Ericksen, Wadsworth, Corbett , McDonald, Meeker, Stevens, etc? Especially the ones that had a WRI put into their race by the RR who wants to “control” things? If I were a candidate that was a non member, I would’ve stayed away too.


    • tulip says:

      I just noticed I had accidentally put Mr. Meeker’s name in the list of RR members. He is not a member and I apologize for the mistake.


  10. Bob Hamby says:

    According to the Pollinger groupies and Mr. Mazzie’s wife the RRR is the Big Bad Wolf of Flagler County. For a grassroots organization consisting of concerned Republican voters with no past political experience I guess we must have struck a nerve with the local “powers that be” in our 6 short months of existence. Mr. Mazzie thought so highly of our organization he joined before he changed his mind and resigned – sound like a pattern with him? We make it clear to all prospective members that we are a grassroots bottom-up organization dedicated to restoring traditional values. We work within the Republican Party to promote the active participation of our members to endorse, support, and elect principled conservative Republican candidates.

    ALL REPUBLICAN candidates were sent candidate questionnaires and invited to participate in the endorsement process (a stringent standard requiring a 2/3 vote of our membership). Several candidates chose not to participate (they were not excluded from consideration by the Assembly) for reasons known only to them.

    Our organization is all about the principles of limited Constitutional government and for all those posting their Republican credentials here I remind you of what Ronald Reagan said. “A political party cannot be all things to all people. It must represent certain fundamental beliefs, which must not be compromised to political expediency, or simply to swell numbers.” Our goal is to represent certain fundamental beliefs in the tradition of Ronald Reagan that will not be compromised. We are working to provide a choice for the voters not just the candidates selected by the CofC and their friends.

    Bob Hamby, President
    Ronald Reagan Republican Assembly Flagler


    • tulip says:

      @ Mr. Hamby In your last sentence you imply that you have some disdain for the CofC entering candidates for office. Some of YOUR MEMBER candidates are trustee members of the Chamber of Commerce, according to their website, in partcular Mr. Ericksen and Ms. Wadsworth?


  11. Donna Heiss says:

    Mr. Hamby, you are incorrect. The fact is Mr. Mazzie did join the RRR. Never once did he say he thought so highly of the organization. In fact, when Mr. Mazzie saw that the RRR shut out 40,000 voters is when he resigned fromThe RRR . Mr. Mazzie is committed to all the citizens of Flagler County. I quote you from your above statement: “We are working to provide a choice for the voters not just the candidates selected by the CofC and their friends.” How ironic Mr Hamby. A choice for what voters? All? Nope. Just YOUR select group of “friends”.

    You can justify the actions of the RRR club all you want in your mind. Many citizens of Flagler County have had their rights taken away by the RRR. That is unacceptable. Many have changed party affiliation to have a voice. Don’t get too excited, they will be switching back. That is their right and one that should be respected. But then again, the RRR doesn’t respect anyone they don’t consider “PURE” and CLEANSED”. Two disgusting words that make my stomach churn.

    Have respect for the people of Flagler County. ALL of them. We have the same rights. Although you may think otherwise, the RRR has offended many and the actions of the club prove it.


    • Magnolia says:

      Does Mr. Mazzie have a position on the fact that we won’t get to elect a replacement for the councilman that is running for the county position?

      doesn’t that bother you? That bothers me more than this does. Lots of disgusting stuff I am reading here.

      Does Mr. Mazzie ever comment? Are you his spokesperson?


      • Kimble Medley says:

        Magnolia -

        The Palm Coast City Charter provides the procedures to be followed for the occurrence of a vacancy of a City Council seat. Section 7(e)(2). The appointment is to last until the next regularly scheduled city election. Depending on when the vacancy occurs, either within the first two years of the term or the last two years, the open seat, once filled through the election, will serve the remaining two years of the term or the full term.


  12. Donna Heiss says:

    Magnolia, it is my understanding the city council will have an application process in front of the public to fill the seat being vacated by Mr. Meeker. I do intend to watch this process. I am unsure whether the public will be able to comment or not. Those are questions for the city council.

    Mr. Mazzie is more then willing to speak directly to you and anyone else that has any questions you would like answered.

    I am Donna Heiss, Ken Mazzie’s wife and campaign manager. I do not speak for him or anyone else. I have made it clear in my postings that they are of my opinion and beliefs. I am my own person and have that right to express myself under the constitution.


  13. Andraste says:

    This is for the voters to decide who they want in the Sheriff’s Office in 2012. After reading this article it appears that Fleming is now winning by a nose. Sorry John, but this is your record. We keep hearing that you are running on your record. Here is a glimpse. Remember Folks, this is not Ray Stevens, Anne-Marie Shaffer or the Ronald Reagan Assembly people. It is just someone has has done some homework. I don’t want to hear that this is a smear. Infact, after reading this piece you can decide for yourself. Its a story about Chief John Pollinger and what he did to a hero on September 11, 2001. God Bless these officers that wear the uniform.

    ******** Story Begins Below ******

    Chief says detective’s transfer not made lightly Officer back on patrol duty for returning to ground zero

    Staff Writer
    By Elaine van develde
    Chief says detective’s
    transfer not made lightly
    Officer back on patrol duty for returning
    to ground zero

    Middletown Police Chief John Pollinger last week defended his controversial decision to transfer the commander of the detective division back to patrol duty for defying instructions not to return to ground zero at the World Trade Center.

    Policemen’s Benevolent Association President Wayne Bradshaw has angrily denounced Detective Lt. Michael Rubino’s transfer, which took effect Friday.

    “[Rubino] will lose $500 a year in take-home pay and will lose an unmarked take-home police car for added responsibilities,” Bradshaw said. “He was also given only three days’ notice before being placed on a different schedule that will dramatically impact his family life.”

    According to Pollinger, Rubino made a decision to defy state and department directives and act on his own, guiding several other officers to do the same, in the midst of the ramifications of the national tragedy of the terrorist attacks on the United States on Sept. 11.

    After having sent 24 officers to ground zero in New York City the day of the attacks himself, Pollinger said an edict was issued statewide to keep volunteers in their communities.

    As a result, Pollinger issued a memo to supervisors to be conveyed to staff that read in part: “The efforts of the men and women of the department were outstanding on Sept. 11, 2001, for the residents of both New York as well as our local residents returning home. While individual officers have expressed their desire to return to N.Y.C. to assist, New York officials have repeatedly requested that those volunteers in any capacity, police included, be halted at this time. This is due to the fact that well-intentioned but untrained volunteers have overwhelmed the city at a time when organized groups specially trained in this type of rescue operation are a priority.”

    Bradshaw said the volunteers to whom Pollinger was referring were not to be confused with trained police officers and emergency response but were the people who doled out food and the like. Pollinger said there was no confusion and has the teletype from the state police and other agencies to back his edict.

    According to Pollinger, Rubino, out of a sense of misguided yet well-intentioned patriotism, voiced his opposition to the directive, defied it and took time off despite his superior’s wishes and organized efforts with other individual officers to return to New York on the Thursday and Friday after the Sept. 11 attack.

    “When you have individuals deciding on their own what’s best for everyone, anarchy is the result,” he said. “There is a need to step back and see the bigger picture and how we can best help. When I’m asked to have my department step back in the interest of helping, that’s what I must do. I also understood the emotional issues we were all confronted with and tried to give this individual (Rubino) time to think about what he was doing.”

    Despite Pollinger’s decision based on streamlining the chain of command through following higher ups’ orders, Bradshaw reinforced his, Rubino’s and others’ opinions that help was still needed, saying that they heard a plea on a local radio station for “anyone with a badge” and were almost begged to come back after going to the scene early on Sept. 11 when going to ground zero was sanctioned by Pollinger.

    “They wanted us there,” said Bradshaw. “We had requests from sources at the New York Police Department and heard another request on a local radio station. We felt we had to respond and couldn’t ignore our duty to help with an American emergency.

    “I’m outraged by this decision by Chief Pollinger to punish Detective. Lt. Rubino by a transfer for organizing an effort and going to New York to help, when he knew his help was needed and on his own time,” he continued.

    “The reason I say this is: Lt. Rubino had gotten information that police officers were desperately needed at the pile rescue efforts. This information was borne out to be true by every officer who went up to New York City and did work on the rubble pile. The work was done at great personal risk to each officer and the ones who went up were all too willing to do it.

    “A lot of people who died were residents of Middletown. That was one of the reasons that people wanted to go. The teletypes said volunteers were no longer needed at the site. That was true. They no longer needed any more people to hand out food and beverages. The N.Y.P.D. was keeping very close control over who got into ground zero. Only people allowed in were police officers firefighters and union card carrying iron workers.”

    Bradshaw was one of those officers who went into the city despite the departmental order not to. He said the officers worked on bucket brigade, while emergency response was still considering the area a rescue site. He said many people were needed to do the basic duty of passing buckets of debris by hand as to not disturb sites with machinery that may hurt the injured under the rubble.

    But Pollinger maintained his stance that, bucket brigade or not, by virtue of the actual teletypes he had received Bradshaw’s claims were unsubstantiated and a result of a borderline selfish desire to help, despite negative consequences implied by unsolicited assistance.

    The state police teletype was transmitted to “all police receivers, county prosecutors and state police stations” on Sept. 11 at 10:49 p.m. and said, in part, “On behalf of (acting) Gov. (Donald) DiFrancesco, Attorney General (John J.) Farmer (Jr.) and Col. Carson J. Dunbar, thank you for your response to our call for assistance in New York City at the World Trade Center. Your cooperation and generosity are truly appreciated. At this time, we are deactivating the staging areas at the Meadowlands and Liberty State Park and releasing all emergency response groups to return to their communities. We are requesting that all emergency response groups remain in their communities unless specifically requested by the N.J. State Police, Office of Emergency Management …” The teletype was signed “by order of the superintendent, Carson J. Dunbar Jr., colonel, superintendent, New Jersey State Police.”

    There was another teletype sent by the office of the Monmouth County Sheriff, Special Investigations, on Sept. 13, that said, in part, “New Jersey is still in a state of emergency status. Monmouth County police officers are still on standby alert status. The city of New York has not yet requested police assistance from the state of New Jersey. It is the opinion of the state Office of Emergency Management that New Jersey police officers may be needed in the future when police officers who are working at the scene of the World Trade Center reach the stage of exhaustion.”

    It goes on to say that when that request is made clear it will be issued through the county Office of Emergency Management regarding equipment and manpower needs.

    Again, on Sept. 17, a teletype was issued to all police receivers by Dennis Delfava, captain of the Emergency Management Section of the N.J. State Police. It reiterated, “county and police agencies are again requested not to send manpower into New York City. We have reports that individual police and firemen are traveling into the city on their own, using ferries and personally owned vehicles. The N.J.S.P. has staff in (the) N.Y.C. command post and has verified that all manpower and resource needs are presently being satisfied …”

    According to Bradshaw all manpower needs were not being satisfied and being there, sanctioned or not, was proof. He said the officers defying the stay-at-home edict, worked all day on Sept. 13 at ground zero and by virtue of doing so, were, in fact needed.

    He added that at about 10 p.m. on Sept. 13, Pollinger contacted Detective Sgt. Joseph Capriotti at the detective bureau in Middletown and instructed him to call the unsolicited officers back from New York.

    “We worked all day in the rubble pile. It was like a medieval scene, with ants working on a pile, carefully trying to dig out, because people were believed to be alive. The N.Y.P.D. was exhausted. They did need us there. Once the rescue effort was abandoned and heavy equipment was brought in more recently, though, that was when they didn’t need us there. Not when we were there.”

    Pollinger said before taking action, which he said could have been more extreme, he “waited more than 10 days after Sept. 14 when he told Rubino he had 24 hours to clear his head and think better of his actions.” Rubino did not budge on his belief that help was needed, and he was going and bringing others with him.

    Pollinger said of Rubino’s fateful decision and Bradshaw’s move to make department personnel issues public: “More than 40 police officers were lost at ground zero and more than 300 firefighters. All of them served the city of New York. All had brothers up there — 41,000 strong in the N.Y.P.D. and 11,000 strong in the F.D.N.Y. — and all of those people had a greater stake in going to the scene there than anyone else, other than the families of the more than 6,000 civilians who were missing or killed.

    “It is unconscionable to know that Wayne Bradshaw or anyone in the Middletown Police Department thinks they had a greater desire (to be involved the rescue and recovery effort) than any of those people who were directly affected,” Pollinger said.

    “In this difficult time in our country, it is appalling that the time of our Police Department needs to be spent on reprimanding those officers who residents entrust with protecting them. Middletown alone lost many of its own residents. This department needs to truly focus on others’ needs, not to be superseded by a selfish need to be in the thick of a tragedy. Every American wanted to be there to help. We have to stay where we’re needed. That’s the best help we can offer. We didn’t know what was going to happen next on Sept. 11. Another thing to consider is that if every Police Department went to one spot, there would be no protecting their towns.”

    Two officers were injured at ground zero, and Bradshaw was one of them. He tripped over another officer when running from a building purportedly ready to collapse and hit an already injured knee on the ground. Another officer broke a rib. Bradshaw is now on workmen’s compensation and working on “modified duty,” he said.


  14. Andraste says:

    The Court Case:

    Here is the court document


    No. 04-2933

    Michael Rubino, Gerald Weimer,
    Nina Rubino, Christine Weimer,

    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 02-cv-05225)
    District Judge: Honorable Hon. Mary Little Cooper

    Submitted June 6, 2005
    Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.
    (Filed August 29, 2005)

    FUENTES, Circuit Judge.

    Plaintiffs Michael Rubino and Gerald Weimer (“the officers”) appeal from an
    order of the District Court granting the defendants’ motion to dismiss made pursuant to
    Fed. R. Civ. Pro. 12(b)(6). The case before us is the remnants of a confusing complaint
    filed by six plaintiffs– four officers plus the wives of Weimer and Rubino– asserting
    various causes of action against Defendants Township of Middletown (“Township”),
    Township of Middletown Police Department (“Police Department”), Public Safety
    Director Robert Czech (“Czech”), Police Chief John Pollinger (“Pollinger”), Police
    Lieutenant Robert Morrell (“Morrell”), and others. Only the claims of Rubino and
    Weimer are at issue before us. Rubino and Weimer contend that the District Court erred
    in dismissing their allegations under 42 U.S.C. § 1983 that the defendants violated the
    officer’s First Amendment rights and failed to train its employees.
    We affirm substantially for the reasons expressed in the thorough and persuasive
    opinion of the District Court. We add the following to underscore our own agreement
    with that decision.

    I. Facts and Procedural History

    The facts and procedural history are complicated and adequately set forth in the
    District Court opinion. Because we write only for the parties, we only recount the most
    necessary of facts. The facts forming the basis of the appeal are related to two discrete
    and disconnected events which the officers suggest are somehow linked.
    Because the record does not indicate when the sergeant spoke to Rubino, we are1
    unable to determine whether Rubino disobeyed Pollinger’s order to return to Middletown
    by staying at Ground Zero until 4 AM.

    The first incident, concerns primarily Rubino, and involves the officers’ activities
    around September 11, 2001. On September 11, Rubino and other officers were directed
    by Chief Pollinger to go to New York City on to assist with the rescue efforts. On
    September 12, however, Pollinger declined to authorize Middletown police officers to
    assist in New York City because he believed no assistance was needed from the
    Middletown police. On September 13, Rubino informed Pollinger that assistance was
    needed in New York City and that he wanted to go to New York to help. Pollinger
    instructed Rubino that Middletown police officers were not to go to New York City, to
    which Rubino replied that he would take a personal day off from work in order to go
    assist. Pollinger initially said that he would not allow Rubino to use his personal day for
    that purpose, but eventually relented when he realized Rubino was intent on going and
    allowed a small group of officers, including Rubino and Weimer to go to New York City.

    On September 13, a police sergeant called Rubino at Ground Zero to inform him that
    Pollinger was ordering all Middletown officers to return. Rubino protested to the
    sergeant that all the officers were being utilized, and the sergeant passed along the
    information to Pollinger. Pollinger did not change his mind and insisted that all the
    Middletown officers leave. Rubino worked at Ground Zero until 4 AM on September
    14. On September 14 , Rubino was summoned to Pollinger’s office upon reporting to1 th
    work. At that time, Pollinger stated no officers could assist even during their off-duty
    time. Pollinger further ordered that no officer should wear a badge or any other item
    identifying him as a Middletown police officer. At some point during this conversation,
    Rubino commented that Morrell misrepresented the Middletown Police Department’s role
    in the rescue efforts of September 11 and Pollinger became agitated.

    Rubino alleges that he was retaliated in the following ways for his actions related
    to September 11:

    Effective September 28, 2001, with three days notice, Rubino was relieved
    of his command and transferred to the Patrol Division as a shift
    commander. Pollinger would not discuss the transfer with Rubino nor with
    Rubino’s superior officer. Czech was quoted in a newspaper as stating that
    Rubino had been reassigned because he had not complied with the
    directives of a supervisor. As a result of this transfer, Rubino had to
    purchase a car because he was no longer entitled to one from the Police
    Department as was the case when he was a Detective Lieutenant.
    In January 2002, a computer Rubino had ordered was missing and nearly
    $800 was taken out of Rubino’s pay without notice or a hearing. Rubino
    was charged with neglect of duty, but these charges were dismissed in

    In Spring of 2002, Pollinger added an addendum to Rubino’s review
    claiming that he was unprofessional and insubordinate without notifying
    Rubino or his supervisor contrary to the rules.

    At some unspecified date, Rubino requested to attend some training classes
    and his requests were denied. He specifically noted that his request to
    attend the Narcotics Officer Convention, which he attended every year since
    1984, was denied.

    The Police Department did not pay his dues for the National Narcotics
    Association, in contravention of a fifteen year practice doing so.
    Appellant Br. at 15-17.

    The second incident, concerns primarily Weimer, and involves inappropriate
    conduct on the part of Morrell. On or about April 20, 2002, Morrell sent a package
    containing horse manure and a threatening note to the homes of Weimer and Rubino and
    two other officers. Weimer went to Morrell’s residence to return the box and to
    complain, but Morrell did not answer the door. It appears that Weimer left the box at
    Morrell’s residence. Morrell contacted the police and accused Weimer of criminal
    mischief while omitting that he himself had originally sent the package. For a time
    period, Weimer was the subject of an Internal Affairs Investigation until Morrell admitted
    to originally sending the package. Almost a month later, in May 2002, Morrell, in his
    pick-up truck, followed Weimer through various Township streets for no apparent reason.
    Weimer documented and reported this incident in a memo to Detective Lieutenant
    Michael Cerame. Weimer and the other recipients eventually made a formal request for
    an Internal Affairs Investigation. Shortly thereafter, Pollinger suggested that the Officers
    seek counseling.

    II. Jurisdiction and Standard of Review

    We have jurisdiction pursuant to 28 U.S.C. § 1291 to hear this appeal. This Court
    exercises plenary review over a District Court’s grant of a motion to dismiss pursuant to
    Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Nami v. Fauver, 82 F.3d 63, 65. We
    take all factual allegations and reasonable inferences as true and views them in the light
    At the outset, the District Court dismissed Morrell as a defendant because while2
    there were ample allegations of his misfeasance, the Amended Complaint does not allege
    that Morrell retaliated against the plaintiffs for exercise of protected speech. The Officers
    challenge this ruling in their reply brief, but we find that the District Court correctly
    concluded that the Amended Complaint did not sufficiently alleged a § 1983 claim
    against Morrell for First Amendment violations.
    most favorable to the Plaintiff. Morse v. Lower Merion School District, 132 F.3d 902,
    906 (3d Cir. 1997). Any questions of law presented by this appeal are reviewed de novo.
    United States v. Hendricks, 395 F.3d 173, 176 (3d Cir. 2005).

    III. Discussion

    The officers allege violations of 42 U.S.C. § 1983 which provides a cause of
    action against a person who, acting under color of state law, deprives another of a
    constitutional or federal right. Gibson v. Superintendent of N.J. Dep’t of Law & Pub.
    Safety-Division, 411 F.3d 427, 433 (3d. Cir. 2005) Thus, to state a claim under § 1983,
    the officers must demonstrate “(1) of what constitutional or federal right [they were]
    deprived, and (2) how [they were] deprived of that right under color of state law. Id. 2

    A. First Amendment

    We first address the officers’ claim that their First Amendment rights were
    violated because they experienced retaliation for engaging in protected speech. Rubino
    claims he experienced retaliation for expressing concern over the Police Department’s
    response to the attacks of September 11, 2001. Weimer claims he experienced retaliation
    for expressing his concern over Morrell’s behavior. A public employee’s retaliation
    claim for engaging in protected First Amendment activity is evaluated under a three-step
    process: (1) first, the plaintiff must establish the speech in question was protected in that
    it involved a matter of public concern, and the public interest favoring the expression of
    that speech must outweigh any injury the speech could cause to the “interest of the State,
    as an employer, in promoting the efficiency of the public services it performs through its
    employees,” (2) second, the plaintiff must show that protected activity was a substantial
    or motivating factor in the alleged retaliatory action, (3) finally, the public employer can
    rebut the claim by demonstrating that the same decision would have been reached even in
    the absence of the protected conduct. Baldassare v. New Jersey, 250 F.3d 188, 194-95
    (3d Cir. 2001) (citing Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will
    County, 391 U.S. 563, 568 (1968)). Both of the officers’ First Amendment claims fail to
    satisfy the first step.

    1. Rubino

    We take no issue with Rubino’s contention, and the District Court’s conclusion,
    that Rubino’s conversation with Pollinger expressing concern over the Police
    Department’s response to September 11 was a matter of public concern. Rubino’s
    concern, however, took the form of challenging Pollinger’s orders– persistently,
    flagrantly, and in front of others. We agree with the District Court that Rubino’s
    expression of his concern was outweighed by the public interest in maintaining
    obedience, order, and discipline in the police department, especially in the time of crisis
    The officers’ brief hints that Rubino also has a first amendment retaliation claim3
    arising out of the incident with Morrell. This is wholly unpersuasive. While the
    Amended Complaint maintains that Rubino joined the other officers in requesting an
    internal affairs investigation of the incident with Morrell, the complaint does not identify
    speech specifically made by Rubino with respect to this request, nor is there any link
    made between the alleged retaliatory acts Rubino suffered and any speech he engaged in
    with respect to Morrell’s activities.
    that was the time period immediately following the attacks of September 11.
    Accordingly, we discern no error with the District Court’s dismissal of Rubino’s First

    Amendment claim. 3

    2. Weimer

    Weimer’s argument that his First Amendment rights were violated is similarly
    unpersuasive. Weimer fails to show how his memo to Cerame, set out in the facts,
    regarding Morrell’s behavior constitutes speech that is a “matter of public concern” as
    opposed to speech asserting Weimer’s own interests and issues. Moreover, the only act
    committed by Pollinger or any others in the police department directed towards Weimer
    was the suggestion that Weimer, and the other officers, seek counseling. Morrell cannot
    credibly construe Pollinger’s suggestion to seek counseling as retaliation when the
    officers claim they were traumatized by Morrell’s actions. We therefore affirm the
    District Court’s order with respect to the dismissal of Weimer’s First Amendment claim.

    B. Failure to Train

    Finally, the officers argue that the Township is liable under § 1983 for failing to
    train, supervise, and monitor its employees. The District Court correctly noted that a
    In the briefs submitted to this Court, the Officers note that no Defendants4
    attempted to ascertain Morrell’s psychiatric stability, nor did the Township institute
    policies or training relating to the identification and control of police officers who may
    commit such conduct. The District Court did not have the opportunity to rule upon
    whether the failure to provide such training would constitute deliberate indifference, but
    nevertheless, we do not find it unreasonable that the Township did not mandate training
    related to police officers who harass other police officers by sending horse manure
    through the mail.
    municipality can be held liable for failing to train its employees when the municipality’s
    failure shows “a deliberate indifference to the rights of its inhabitants,” Canton v. Harris
    489 U.S. 378, 389 (1989) (internal quotation marks omitted), and that no such deliberate
    indifference on the part of the municipality was alleged.

    The entirety of the Officers’ allegations with regard to this claim is as follows:
    Defendant/Municipality. . . failed to properly train and supervise its
    employees and agents and, as such, the violations that resulted, along with
    failure to train, violate 42 U.S.C. § 1983. Defendant/Municipality failed to
    train its agents to take proper investigatory and remedial action relating to
    the officers’ fear for their safety in their workplace as detailed [in previous
    paragraphs in the Amended Complaint].

    This action violates 42 U.S.C. § 1983 because their actions violate
    the Constitution of the United States, denying Plaintiff of life, liberty and
    property and the pursuit of happiness, and hence, 42 U.S.C. 1983.

    Appellant App. Vol II. at 107(a).

    In the Amended Complaint, the Officers did not identify any examples of specific
    training that the Township failed to provide. If the Officers were unable to provide4
    specific examples of training needed, it cannot be said that the need for more or
    additional training is so obvious as to constitute deliberate indifference on the part of the
    Township. Therefore, we find no error in the District Court’s order dismissing the
    officers’ failure to train claim.

    IV. Conclusion

    We have considered all of the arguments advanced by the parties and conclude that
    no further discussion is necessary. Accordingly, the judgment of the District Court will be


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