IN THE MATTER OF JOHN WOLTMANN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5705-08T3

IN THE MATTER OF

JOHN WOLTMANN.

____________________

April 29, 2011

Submitted October 25, 2010 - Decided

Before Judges C.L. Miniman and LeWinn.

On appeal from the New Jersey Civil Service Commission, Docket No. 2008-914.

Scarinci Hollenbeck, attorneys for appellant/ cross-respondent North Hudson Regional Fire and Rescue (Adam S. Abramson, of counsel and on the brief).

C. Elston & Associates, LLC, attorneys for respondent/cross-appellant John Woltmann (Catherine M. Elston, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

North Hudson Regional Fire and Rescue (North Hudson) appeals from the June 26, 2009 final decision of the Civil Service Commission (Commission), dismissing a charge of neglect of duty against its employee, John Woltmann, and modifying the sanctions imposed by an Administrative Law Judge (ALJ). Woltmann cross-appeals from the Commission's decision to uphold charges of violating North Hudson's leave policy and conduct unbecoming an officer. We affirm the appeal and cross-appeal.

Woltmann, a twenty-five-year employee of North Hudson, was on medical leave for a work-related shoulder injury between October 2005 and January 2006. On May 1, 2006, he received a preliminary notice of disciplinary action, which set forth the following specifications:

Between October 31, 2005 through January 30, 2006, the time you were on medical leave, you were restricted from driving. On a number of occasions, including January 7 and 20, 2006, you were observed driving, in violation of physician's orders. Additionally, you failed to notify [North Hudson] that you were leaving your residence.

As a result, North Hudson charged Woltmann with violating the following sections of its Department Leave Policy:

4.1(b) Employees of [North Hudson], while on medical leave or injury leave, are responsible to follow recuperative procedures outlined by the physician(s) under whose care medical leave or injury leave was secured.

4.1(d) Whenever an employee is out on medical leave, extended medical leave or injury leave, he shall remain in his residence on his duty day.1 . . . If it is necessary for an employee on medical leave or injury leave to leave his residence, that employee shall notify the appropriate Duty Chief during normal business hours. . . .

4.1(f) Employees attempting to misrepresent themselves or found guilty of misrepresenting themselves as ill or injured shall be subject to all disciplinary actions deemed appropriate by [North Hudson].

4.1(g) Abuse and misuse of medical leave and injury leave is a violation of [North Hudson]'s rules and regulations and orders . . . and shall be understood to be a chargeable offense.2

These charges also constituted violations of the following provisions of the New Jersey Administrative Code: N.J.A.C. 4A:2-2.3(a)(6), conduct unbecoming a public employee; 4A:2-2.3(a)(7) neglect of duty; and 4A:2-2.3(a)(11), other sufficient cause.

Following a hearing, North Hudson issued a final notice of disciplinary action, finding that all charges had been sustained and imposing discipline of suspension for fifteen days (twenty-four-hour tours)3 between September 15 and November 15, 2007. Woltmann appealed and the matter was transferred to the Office of Administrative Law as a contested case.

The ALJ held a hearing on April 10 and 14, 2008. North Hudson's Battalion Chief, John G. Halpin, Jr., Fire Chief Brian McEldowney, and Woltmann testified.

Halpin was responsible for overseeing implementation of North Hudson's medical/injury leave policy during the period of Woltmann's leave. He testified that when an employee goes on medical leave, an entity known as QualCare assists North Hudson in scheduling doctor appointments and treatment. Halpin identified various forms that are generated when an employee goes on medical/injury leave. One of those forms, a Medical Certification Fitness Report (Fitness Report), is generated by the treating physician to whom the employee is referred by QualCare; in Woltmann's case that was Dr. Hutter, an orthopedist. Judy Richie, the liaison between QualCare and North Hudson, sends the form to Halpin, who described the purpose of the form as

keep[ing] track of the member, what his limitations are and what they're not, whether [he] can bring the member back to modified duty and also to give the member the proper medical attention . . . and if any question[] arises between [Halpin], [QualCare] and the individual that is being treated, . . . we're all on the same page.

Halpin stated that he reviewed this document "[e]very time . . . Woltmann would visit the doctors."

Halpin testified that he received Dr. Hutter's updated Fitness Reports from Richie on October 31, November 8, November 21, December 14, December 28, 2005, and January 11, 2006. According to the leave policy, Woltmann was responsible to call in every Monday following an updated report to discuss it with Halpin. On each occasion, Halpin stated, he read Woltmann the contents of Dr. Hutter's report, which included a prohibition against driving. Woltmann never objected or protested this restriction. Halpin stated that if Woltmann had objected, Halpin would have discussed the matter with Richie who, in turn, would call Dr. Hutter and "if there were any miscommunication . . . it would be clarified and reported back to [him]."

Halpin stated that it was also Woltmann's responsibility to call in to report when he went to a doctor's appointment or to therapy. At no time did Woltmann call Halpin to report that he was leaving his residence for any other purpose.

The January 25, 2006 Fitness Report lifted the driving restrictions and cleared Woltmann to return to "modified" duty. Woltmann's leave ended on February 2, 2006.

On cross-examination, Halpin stated that, during the two-year period he was in charge of supervising members' medical/injury leaves, he would make a note in the "Community Logbook" each time a member called in to report he was leaving his residence. He could not, however, recall if he did so consistently; he did not produce the book at the hearing and "d[id]n't know what [he] had put in there."

Chief McEldowney testified that he recommended disciplinary action against Woltmann because

upon investigation [he] learned . . . that . . . Woltmann had been leaving his house contrary to doctor's orders. He had been driving his vehicle contrary to doctor's orders. And if he was not following the doctor's orders he was responsible to inform the doctor and . . . to inform [North Hudson] that he was not following the orders and he failed to do so.

McEldowney stated that the two dates on which Woltmann was charged with driving in violation of Dr. Hutter's recommendations, January 7 and 20, 2005, were "non-duty days, which means they were not days that he would normally be at work if he was on the line." McEldowney testified that the 2001 amendment to Section 4.1(d) of the Department Leave Policy, whereby employees on medical leave were required to remain in their residences on their duty days, did not change the duty to call in whenever an employee left the residence, whether on a duty day or not. He stated that he "reads" section 4.1(d) the way he "sees it" and "think[s] the whole Department does and that's why [employees are] calling to notify . . . that they're leaving on their non-duty day." McEldowney acknowledged that he did not speak to Woltmann or any other union member about their interpretation of the amendment.

On February 16, 2006, an "Oral Reprimand" was issued against Woltmann for leaving his residence without notifying North Hudson. On May 6, 2006, Woltmann received a "Warning" because he "was responsible to pick up a Medical Certification of Fitness Form from headquarters in order to have it filled out by his treating physician, and he failed to do so." McEldowney acknowledged that this was the first time Woltmann faced disciplinary charges "in all his [twenty-five] years as a firefighter."

McEldowney stated that he did not discuss Woltmann's medical condition or treatment with Dr. Hutter. He also acknowledged that Woltmann would not have received copies of the Fitness Reports periodically sent by Richie to Halpin.

Woltmann testified that he injured his shoulder in the line of duty on October 17, 2005. He first received medical attention at Palisades General Hospital, where x-rays were taken and he was told to see an orthopedic surgeon. He first saw Dr. Hutter on October 31, 2005.

Dr. Hutter performed surgery on Woltmann's shoulder on November 17, 2005. Woltmann did not drive then because he "was in a solid cast [and] . . . had stitches in the arm." On November 30, Dr. Hutter removed the cast and replaced it with a plastic brace; Woltmann stated he was not able to drive while wearing that brace.

On December 14, 2005, Dr. Hutter removed the brace because "he wanted to get movement into [Woltmann's] shoulder." Sometime around December 17, Woltmann started rehabilitation therapy. On December 26, Dr. Hutter told him "[h]e was pleased with . . . [his] progress" and to keep up with the therapy. By January 11, 2006, Woltmann was no longer wearing the sling and his "mobility was increasing." Woltmann's next, and final, visit with Dr. Hutter was on February 7, 2006; he returned to modified duty on February 25.

Woltmann testified that at no time during any of his visits to Dr. Hutter did the doctor tell him he could not drive, or that he was confined to his residence. He received some documents from Dr. Hutter, none of which contained any restrictions on driving.

Woltmann stated that, while out on leave, he called Halpin every Monday following a doctor's appointment, up to January 20, 2006. Woltmann denied that Halpin read him the contents of the various Fitness Reports; rather, he asserted that he had general conversations with Halpin about how he was doing and when his doctor appointments were scheduled. Halpin never told him he could not drive or leave his residence.

Woltmann acknowledged that he left his residence on January 7, 2006, a non-duty day, and went out to eat at a restaurant. On January 20, also a non-duty day, Woltmann drove to go shopping and to therapy; he also went to a restaurant. He stated that his understanding of the medical leave policy was that he did not have to call in if he left his residence on a non-duty day. He read the first sentence of section 4.1(d) as consistent with his understanding of the policy.

The ALJ reviewed the evidence and: (1) found that Woltmann's testimony "that he was not advised, verbally or in writing, by Dr. Hutter that he could not drive on January 7 and January 20, 2006" was "inconsistent with the credible testimony of . . . Halpin"; (2) rejected Woltmann's testimony "that he was not informed of the restrictions in his medical reports"; and (3) determined that Woltmann was on notice that he had the "obligation to pick up his reports and maintain communications with [North Hudson]." The ALJ concluded that Woltmann "knew or should have known the contents of his Fitness Reports[,] . . . [and] that [he] knew or should have known that on October 31, 2005, Dr. Hutter conducted a medical examination of his fitness for duty and restricted [him] from driving any vehicle until January 25, 2006."

Therefore, the ALJ found that Woltmann's conduct "violated the physician's orders and [North Hudson's] policy. Here, [Woltmann] believed he was capable to drive, but failed to inform [North Hudson]. His absence from work, and the use of sick-leave time when he was capable of modified duty constitutes an abuse of sick time." The ALJ further found that Woltmann's actions "constituted conduct unbecoming a public employee[,]" and that his "failure to notify [North Hudson] that he was leaving his residence, contrary to . . . policy, constitute[d] neglect of duty." Noting that Woltmann's "position as captain subjects him to a higher standard of conduct and responsibility than is required of other public employees[,]" the ALJ upheld the fifteen-day (twenty-four-hour tours) suspension imposed by North Hudson, notwithstanding Woltmann's "unblemished disciplinary record during his more than twenty-five year career . . . ."

Both parties filed exceptions with the Commission, which issued its decision on June 26, 2009. The Commission dismissed the neglect of duty charge because it

d[id] not agree with the ALJ's reasoning that [Woltmann] was required to notify [North Hudson] whenever he left his residence. The . . . leave policy was specifically modified to provide that an employee on leave was only required to remain in his residence on duty days. Thus, to read the notification provision as requiring the employee to notify the Duty Chief regardless of whether he leaves his residence on a duty or off-duty day would render the amendment meaningless. In this regard, the Commission recommends that [North Hudson] revise the policy to clarify the notification provision.

The Commission upheld the remaining charges, finding Woltmann's arguments "unpersuasive."

The Commission reviewed the penalty de novo. It noted that Woltmann had "no prior disciplinary history since his employment with [North Hudson]" and that the neglect of duty charge had been dismissed. Because of Woltmann's "misuse of leave time[,]" however, the Commission determined the appropriate penalty to be "a five-day suspension ([twenty-four]-hour tours) (equivalent to a [fifteen]-day suspension at [eight]-hour tours)."

On appeal, North Hudson contends that, in dismissing the neglect of duty charge, the Commission erroneously interpreted section 4.1(d) and "exceeded its powers[.]" It contends the amendment to that section "was specifically limited to home confinement for duty days but did not amend the notification requirement." North Hudson asserts that the Commission's decision to the contrary "could only have been drawn from illogical inferences, unfounded by credible evidence of the record . . . ."

At the outset, we note that our scope of review of agency actions is limited. A strong presumption of reasonableness attaches to a decision of the Commission. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). If we find such a decision to be supported by the evidence, we must affirm even if we question the wisdom of that decision or would reach a different result. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001).

The evidence concerning the interpretation of section 4.1(d) was somewhat conflicting. McEldowney testified that his understanding of the amendment to section 4.1(d) was that employees on medical leave were still required to call in if they left their residences on a non-duty day; he acknowledged, however, that he never spoke to Woltmann or any other union member about their interpretation of the amendment. Woltmann testified that he understood the amendment to mean that he did not have to call in if he left his residence on a non-duty day. Halpin, who oversaw implementation of the medical leave policy during the time Woltmann was on leave, produced no evidence that employees called in on non-duty days.

Based on this record, we cannot conclude that the Commission's interpretation of section 4.1(d) was arbitrary, capricious or unreasonable. In re Carter, 191 N.J. 474, 482 (2007); Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). Indeed, the Commission "recommend[ed] that [North Hudson] revise the policy to clarify the notification provision." As this section is currently written, we discern no basis to conclude that Woltmann was clearly on notice of a requirement to call in if he left his residence on a non-duty day.

In light of the Commission's dismissal of the neglect of duty charge, and considering its power of de novo review of a penalty, In re Herrmann, 192 N.J. 19, 28-29 (2007), we find no cause to reinstate the penalty imposed by the ALJ. Considering Woltmann's twenty-five years of service unblemished by any prior disciplinary matters, the modified sanction is not "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 29 (citations omitted).

Finally, North Hudson contends that Woltmann included improper hearsay in his exceptions to the Commission, in the form of testimony from an unrelated disciplinary proceeding, Winters v. North Hudson Regional Fire & Rescue, CSV 3786-07, and that the Commission "failed to state in its decision that the testimony of Winters [sic] was not reviewed or used in its interpretation of the . . . [l]eave [p]olicy . . . ." We consider this issue to be "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E). Suffice it to say, the Commission discussed Winters only with reference to Woltmann's pre-hearing motion for summary disposition, which the ALJ denied; Woltmann has not appealed that denial. Moreover, the Commission's discussion and analysis of the merits of the case are based exclusively on its review of the evidence and application of the pertinent regulatory and case law.

In his cross-appeal, Woltmann contends the record does not support the Commission's upholding of the remaining charges; alternatively, he contends that the sanction imposed is disproportionate to the charges and contrary to the theory of progressive discipline. We are satisfied that the Commission's decision regarding the remaining charges is "supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). The Commission concluded that

the credible evidence in the record supports the ALJ's conclusion that [North Hudson] met its burden of proof. In this regard, the ALJ found that Halpin's testimony that he discussed the contents of the fitness reports with [Woltmann] to be credible. [Woltmann] has not persuasively shown why the Commission should not credit th[is] . . . finding . . . .

The Commission's deference to the credibility determinations of the ALJ was proper. S.D. v. Div. of Med. Assistance, 349 N.J. Super. 480, 483-84 (App. Div. 2002).

As for the penalty, we approach Woltmann's request to reduce the sanction with the same deference that led us to reject North Hudson's position that the ALJ's recommendation should be restored. Through its power of de novo review, the Commission is the ultimate arbiter of the appropriate penalty in disciplinary matters. In re Herrmann, supra, 192 N.J. at 28-29.

The appeal and cross-appeal are affirmed.

1 Prior to February 1, 2001, the first sentence of section 4.1(d) read: "Whenever an employee is out on medical leave, extended medical leave or injury leave, he shall remain in his residence at all times." (Emphasis added.)

2

These sections of the Leave Policy corresponded to Sections 17.9, 17.10, 17.11 and 17.12 of North Hudson's Rules & Regulations.

3 This is equivalent to a forty-five-day suspension of eight-hour tours.