Opinion
DOCKET NO. A-2332-12T3
02-24-2015
IN THE MATTER OF JOHN BATIUK, TOWNSHIP OF WOODBRIDGE POLICE DEPARTMENT.
The Anthony Pope Law Firm, P.C., attorneys for appellant John Batiuk (Annette Verdesco, on the brief). Genova Burns Giantomasi & Webster, attorneys for respondent Township of Woodbridge Police Department (Celia S. Bosco, of counsel; Ms. Bosco and Joseph V. Manney, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from the New Jersey Civil Service Commission, Docket No. 2012-1652. The Anthony Pope Law Firm, P.C., attorneys for appellant John Batiuk (Annette Verdesco, on the brief). Genova Burns Giantomasi & Webster, attorneys for respondent Township of Woodbridge Police Department (Celia S. Bosco, of counsel; Ms. Bosco and Joseph V. Manney, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
John Batiuk ("Batiuk") appeals from a final determination of the Civil Service Commission (the "Commission"), which found that the appointing authority, the Township of Woodbridge Police Department (the "Department"), was justified in demoting, suspending and issuing a written reprimand to him as a result of several disciplinary infractions. We affirm.
I.
This appeal arises from the following facts. The Township of Woodbridge (the "Township") is a civil service jurisdiction. Therefore, its employees are subject to N.J.A.C. 4A:2-2.1 to -2.13, regulations which establish the procedures for major discipline. In addition, employees of the Department must comply with its rules and regulations and Standard Operating Procedures ("SOP").
By 2011, Batiuk had been employed by the Department as a police officer for forty-one years. At that time, Batiuk was serving in the capacity of Sergeant, a position he had held for sixteen years. As a Sergeant, Batiuk could assume the responsibilities of a Shift Commander for a specific shift. The Shift Commander is responsible for the supervision of between seven and nine patrolmen, proper maintenance of evidence, review of reports, and enforcement of the Department's rules and operating procedures.
On June 22, 2011, the Department issued a Preliminary Notice of Disciplinary Action ("PNDA"), which proposed to discipline Batiuk for his alleged conduct on May 14 and 15, 2011. According to the PNDA, Batiuk: (1) placed blood evidence from a fatal motor vehicle accident into the Department's freezer; (2) mislabeled photos from a domestic violence arrest; (3) failed to notice and/or correct reporting and storage mistakes made by subordinate officers; (4) mislabeled a broken beer bottle obtained as evidence and failed to place the bottle into an appropriate storage container; and (5) completed and submitted an "End of Tour" report containing inaccuracies.
The Department alleged that these actions violated its rules and regulations and the SOP, and constituted cause for discipline under N.J.A.C. 4A:2-2.3(a). The Department proposed to demote Batiuk to the position of police officer.
On October 13, 2011, the Department issued another PNDA to Batiuk, alleging that he had engaged in improper conduct from August 16 to August 30, 2011. According to the PNDA, on August 16, 2011, Batiuk advised the Department that he would not be able to report to his tour of duty because of a medical procedure that was scheduled for that day. On August 17, 2011, two of the Department's Lieutenants visited Batiuk at home. He told them that he was under doctor's care and would not be returning to work at that time.
On August 18, 2011, a physician sent a facsimile transmission to the Department which stated that Batiuk had a procedure performed but did not state that Batiuk was required to remain out of work. Batiuk remained on sick leave until August 30, 2011, and he did not obtain any documentation from his physician to excuse the absence.
The Department alleged that Batiuk's actions violated its rules and regulations, the SOP and were cause for discipline under N.J.A.C. 4A:2-2.3(a). The Department proposed to suspend Batiuk for thirty days and to issue a written reprimand. Batiuk failed to appear for the Departmental hearing on the charges, but he was represented by counsel. It was determined that he waived his right to a hearing.
The Department served a Final Notice of Disciplinary Action ("FNDA") on November 16, 2011, suspending Batiuk for thirty days and approving the issuance of a written reprimand. A second FNDA was issued on the same date demoting Batiuk to the position of police officer. Batiuk sought administrative review by the Commission and requested a hearing. The matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge ("ALJ").
The hearing took place on August 14, 2012. The Department's Deputy Director Joseph Nisky ("Nisky") and Detective Lieutenant Damian Neste ("Neste") testified for the Department. Batiuk did not present any witnesses. The ALJ issued an initial decision on November 27, 2012.
The ALJ found that Nisky and Neste were credible witnesses, and made the following findings:
[Batiuk] was the Shift Commander on May 14, 2011, into the morning of May 15, 2011. He was responsible for ensuring that evidence collected during his shift was properly secured, stored and recorded. Blood evidence collected from a fatal motor vehicle accident was improperly placed in the freezer by [Batiuk]. An evidence tag for specific evidence collected during [Batiuk's] shift lacked the arrestee's name and address, and [Batiuk] failed to correct the error. A broken beer bottle was not placed in a proper storage container prior to being secured in the evidence storage. Further, this bottle was not logged in with the alarm number associated with the proper incident. [Batiuk] was responsible for ensuring that the reporting officer properly secured and stored all evidence retrieved during his shift as Shift Commander.
[In addition, Batiuk] was absent from work without proper authorization. He had elective surgery on August 16, 2011, for which he failed to obtain prior authorization for sick leave. [Batiuk] failed to provide sufficient documentation for the "sick leave" taken on and after August 16, 2011. He further engaged in inappropriate behavior in his doctor's office when he attempted to obtain a doctor's note excusing him from work due to the elective surgery.
The ALJ determined that Batiuk had violated the Department's rules and regulations and its operating procedures and engaged in conduct for which discipline may be imposed under N.J.A.C. 4A:2-2.3(a). The ALJ found that a demotion, thirty-day suspension and written reprimand were appropriate penalties. The ALJ noted that Batiuk had an extensive disciplinary history during his sixteen years as a Sergeant, which included three progressive major disciplines, and three letters of reprimand, with one reprimand having been issued as recently as 2008. The ALJ stated that Batiuk's disciplinary history as a Sergeant "demonstrates a disregard for Departmental procedures." The ALJ also noted that Batiuk had not carried out the supervisory duties and expectations of a person holding the rank of Sergeant.
Batiuk filed exceptions to the ALJ's initial decision. The Commission issued its final decision in the matter on January 9, 2013. The Commission accepted and adopted the ALJ's findings of fact and conclusions. The Commission found that the Department's actions in suspending Batiuk, demoting him and issuing a written reprimand were justified.
On appeal, Batiuk argues that the Commission's final decision was arbitrary, capricious or unreasonable and contrary to law. Batiuk contends that the Department failed to present credible testimony to support the charges. He also contends that the imposition of the penalty of demotion was disproportionate to the charges and violated principles of progressive discipline. For the reasons that follow, we find no merit in these arguments.
II.
As noted, Batiuk first argues that the Department failed to present sufficient evidence to support the disciplinary charges. We cannot agree.
It is well established that "[i]n light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996). An appellate court will intervene "only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid.
Thus, our review of a final decision of an administrative agency is limited to three inquiries: (1) whether the agency's action is consistent with the applicable law; (2) whether there is substantial credible evidence in the record to support the factual findings upon which the agency acted; and (3) whether, in applying the law to the facts, "the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Furthermore, when reviewing an agency's factual findings, "an appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). The agency's findings of fact are binding on appeal if they are supported by substantial, credible evidence. Id. at 656-57 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
Here, Batiuk argues that Nisky's testimony was insufficient to establish that he violated the Department's rules and regulations regarding the handling of evidence. He maintains that the Department should have used a special rejection form, which would have allowed him to correct any error regarding the handling of evidence, rather than filing a disciplinary charge against him. However, as the Department notes, the availability of such a form does not excuse Batiuk's errors in the handling of evidence, which were established by the testimony presented at the hearing.
Batiuk also contends that the Department failed to present sufficient evidence to establish that he placed the blood evidence into the Department's freezer. However, Nisky testified that Batiuk actually placed the blood evidence in the freezer. Furthermore, Neste's Internal Affairs report dated June 9, 2011, provided additional support for the ALJ's finding that Batiuk placed this evidence in the freezer.
Batiuk further argues that no witness identified the specific rule or regulation that prohibited the storage of blood evidence in the freezer. The record does not support that argument. The Department's SOP regarding "Refrigerated Storage" provides in part that items that are perishable, such as blood, "shall be secured in a temporary holding refrigerator." Moreover, Nisky testified that the State Police Evidence Field Manual ("SPEFM") indicates that "blood needs to be refrigerated" and that placement of blood evidence in a freezer could spoil the sample. The record thus supports the ALJ's conclusion that blood evidence must be placed in a refrigerator, not a freezer.
In addition, Batiuk contends that the sign posted on the Department's freezer did not mention blood evidence but "merely referred to 'urine and DNA evidence.'" However, based on the evidence presented, the ALJ properly found that the Department's rules and regulations, the Department's SOP and the SPEFM considered together indicate that blood evidence must be refrigerated, not frozen. Moreover, as the Department points out, Batiuk's claimed ignorance or misunderstanding of the rules governing the handling of blood evidence is not a defense to the charge.
Batiuk also contends that subordinate officers who erroneously recorded or handled evidence had only received reprimands, rather than major discipline. That may be so, but there is no indication that these officers are similarly situated to Batiuk, with regard to either the positions held or their disciplinary records.
Batiuk further contends that the record does not support the ALJ's and Commission's findings regarding the charges pertaining to his sick leave. He asserts that he complied with the Department's rules and regulations when he called out sick on August 16, 2011. He further maintains that the record lacks evidence showing he "engaged in inappropriate conduct in his doctor's office in an effort to obtain a note excusing him from work due to an elective surgery."
We are convinced that these arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). However, we note that Neste's internal affairs investigation report, which was admitted into evidence, and Neste's testimony established that Batiuk failed to comply with the Department's sick leave requirements, that Batiuk underwent an elective medical procedure, and that he acted inappropriately in the doctor's office when he went there to obtain a note excusing his absence from work.
We conclude that the Commission's decision finding that the Department's charges had been sustained is supported by sufficient, credible evidence.
III.
We next consider Batiuk's contention that the penalties imposed here are disproportionate to the charges involved. Again, we disagree.
A court may only "alter a sanction imposed by an administrative agency . . . when necessary to bring the agency's action into conformity with its delegated authority." In re Polk, 90 N.J. 550, 578 (1982). "[T]he test [for] reviewing administrative sanctions is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Ibid. (internal quotation marks and citation omitted).
Batiuk argues that the penalty of demotion was excessive in light of his sixteen-year tenure as a Sergeant, the nature of the charges against him, and his limited disciplinary history.
Batiuk asserts that the Department did not present any evidence indicating that there were adverse consequences flowing from the alleged mishandling of the blood evidence. He says there was no evidence that the blood evidence was spoiled, or that charges were ever brought against the suspect from whom the blood was taken. He also asserts that the Department did not present evidence indicating that it suffered any harm as a result of the sick leave incident. In addition, he asserts that a letter of reprimand was issued for this incident, and that the demotion and suspension constitute "duplicative punishment."
We are convinced that these arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the discipline imposed here was not in any way disproportionate to the charges, particularly when considered in light of the seriousness of the conduct upon which the charges were based, Batiuk's prior disciplinary record, and his positions as Sergeant and Shift Commander.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION