Opinion
DOCKET NO. A-0598-11T3
08-18-2014
IN THE MATTER OF JON K. GRUBB, UPPER TOWNSHIP, DEPARTMENT OF PUBLIC WORKS HEALTH AND GROUNDS
Clifford G. Stewart argued the cause for appellant Jon K. Grubb. Joseph R. Zakhary argued the cause for respondent Upper Township (Capehart & Scatchard, P.A., attorneys; Joseph F. Betley, of counsel and on the brief; Mr. Zakhary, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa, and O'Connor. On appeal from the New Jersey Civil Service Commission, Agency Docket No. 2008-4707. Clifford G. Stewart argued the cause for appellant Jon K. Grubb. Joseph R. Zakhary argued the cause for respondent Upper Township (Capehart & Scatchard, P.A., attorneys; Joseph F. Betley, of counsel and on the brief; Mr. Zakhary, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Following a disciplinary hearing before the municipality's township committee, Jon K. Grubb was removed from his position as a truck driver with Upper Township for insubordination, conduct unbecoming a public employee, and the failure to perform duties, effective June 15, 2005. Grubb requested a fair hearing, and the matter was transferred to the Office of Administrative Law to be heard as a contested case pursuant N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 14F-1 to -13.
After a sixteen day hearing, the Administrative Law Judge (ALJ) sustained the charges of conduct unbecoming and insubordination, as well as Grubb's removal from his employment with Upper Township. Grubb appeals from the Civil Service Commission's final agency decision, which accepted and adopted the ALJ's findings and conclusions. We affirm.
In Point I of his brief, Grubb contends the Civil Service Commission's decision must be reversed because it was arbitrary, capricious and unreasonable. See Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). Grubb does not, however, provide a factual or legal basis to support this claim. In fact, the entirety of Point I is as follows:
In Department of Children and Families, Div. of Youth and Fam. Serv., 207 N.J. 294, 301 (2011), the Supreme Court reaffirmed the standard of review applied to a final decision of a State administrative agency. An administrative agency's decision is entitled to deference unless where, as here, it is arbitrary, capricious, or unreasonable, or that it lacks support in the record. Id. at 301.As Grubb did not give any reasons why the decision was deficient in the manner asserted, we cannot properly consider this claim on appeal. See Heyert v. Taddese, 431 N.J. Super. 388, 437 (App. Div. 2013). Addressed below are Grubb's remaining points.
Grubb next contends that the ALJ erred when he denied his motion to have Joseph F. Betley, Esq., Upper Township's attorney, disqualified under RPC 3.7(a). The genesis of the motion was that, back in 2005, Betley conducted an investigation on behalf of Upper Township into whether Grubb had engaged in the conduct that ultimately led to his removal. During the investigation, Betley interviewed Grubb.
On the second day of the hearing before the ALJ, Betley told the court he intended to introduce evidence of what Grubb told him during the interview. Grubb then sought to have Betley disqualified from representing Upper Township on the grounds Betley might become a necessary witness, given Betley had knowledge of what Grubb said during the interview. Betley clarified that he intended to call Patricia Garbutt, a personnel officer of Upper Township who was present during the interview, to testify about what Grubb said. Betley further pointed out that Grubb's union representative was also present during the interview and available as a witness.
RPC 3.7(a) states:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
After the parties briefed the issue, the ALJ denied the motion to disqualify Betley, determining Grubb had not made the requisite showing that there was a likelihood Betley would become a necessary witness, see J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006), given there were, in addition to Betley and Grubb, two witnesses to the interview who could testify about what Grubb said.
A court's ruling on a motion to disqualify an attorney is reviewed for abuse of discretion. Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590, 609 (App. Div. 1990), aff'd, 124 N.J. 520 (1991). The ALJ did not abuse his discretion when he denied the motion, given the availability of the other witnesses, not to mention that there was no evidence Betley would have provided any testimony favorable to Grubb's case.
Grubb also contends he was denied a fair hearing because the ALJ failed to order the release of the notes Betley took during the interview. The record reflects the ALJ did order that the notes be turned over to Grubb. Grubb's attorney even acknowledged receiving the notes on the record.
We have considered the remaining arguments and find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION