IN THE MATTER OF WALTER ZAPOLUCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1125-10T2

IN THE MATTER OF

WALTER ZAPOLUCH.

___________________________________

February 16, 2012

Submitted November 10, 2011 - Decided

Before Judges Waugh and St. John.

On appeal from the New Jersey Civil Service Commission, Docket No. 2010-1034.

Darryl M. Saunders, attorney for appellant Walter Zapoluch.

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the brief).

Donato J. Battista, Hudson County Counsel, attorney for respondent County of Hudson (Daniel W. Sexton, Assistant County Counsel, of counsel and on the brief).

PER CURIAM

Appellant Walter Zapoluch appeals from an order of respondent New Jersey Civil Service Commission (Commission) upholding disciplinary action taken against him by his employer, respondent Office of the Hudson County Sheriff (Sheriff's Office). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

In December 2008, Zapoluch had been a sheriff's officer for twenty-three years and held the rank of sergeant. At approximately 11:00 p.m. on December 14, 2008, Sheriff's Officer Terrance Murphy initiated the motor vehicle stop of a van on Route 7 in Jersey City. The operator of the van was Adeito Williams.1 As Murphy stopped Williams, he called for back-up because of the dangerous location of the traffic stop. Two additional units in marked patrol cars arrived on scene, blocked traffic, and provided a safe zone for the motor vehicle stop.

Murphy subsequently telephoned the Sheriff's Communications Bureau. He asked Sheriff's Officer William Matos if he could speak to Zapoluch, who was a supervisor. Murphy informed Zapoluch that Williams was on the side of the road and refusing to leave the site of the stop. Murphy also told Zapoluch that Williams had asked to speak to a supervisor and said that he would not leave until he did.

Zapoluch asked Murphy whether he had given Williams a summons, and Murphy replied that he had issued two summonses. Zapoluch then asked Murphy how he could get to his location. Murphy gave Zapoluch directions. When Murphy again explained that Williams refused to move his vehicle until a supervisor came to the scene, Zapoluch replied: "As far as you are concerned, come on in and tell [Williams] to sit there, a supervisor is on the way."

Murphy responded that Williams was in handcuffs because he had been disorderly and screamed at Murphy. Zapoluch asked: "Did you lock him up?" Murphy responded by asking whether it was "within [his] rights to lock him up." Zapoluch replied:

No. What are you going to charge him with? Can't charge him with nothing. What are you going to charge him with, that he didn't want to move the car right away? Are you going to lock him up for that? You can't do that. You can't lock the guy up because he didn't want to move the car right away.

Murphy replied, "alright." He then released Williams.

Later that night, Williams's girlfriend, Angelina Mohabil, called the Sheriff's Office and spoke to Matos. She asked to speak to a supervisor. At Zapoluch's direction, Matos told her that there was no supervisor available. Matos also gave Mohabil incorrect information on how to file an Internal Affairs complaint. Both statements were made within earshot of Zapoluch. When Mohabil called back, Matos answered the phone, but identified himself as "Officer Buchanan." Mohabil said she was being harassed by four officers and she needed a supervisor. No supervisor went to the site of the traffic stop.

B.

An investigation by the Sheriff's Office of Zapoluch's conduct on December 14 resulted from the civilian complaint made by Williams on December 15, 2008. On June 23, 2009, the Sheriff's Office issued a preliminary notice of disciplinary action against Zapoluch, charging him with violations of the Hudson County Sheriff's Office Rules and Regulations concerning neglect of duty, supervision, and departmental reports. He was also charged under N.J.A.C. 4A:2-2.3(a), which provides that "[a]n employee may be subject to discipline for: 1. Incompetency, inefficiency or failure to perform duties; . . . 6. Conduct unbecoming a public employee; 7. Neglect of duty; . . . and 11. Other sufficient cause."

The specifications of the charges were as follows:

a) Refusing to speak to Ms. Mohabil when she telephoned Sheriff's Communications, three (3) times, asking for a supervisor;

b) Inappropriately instructing Officer Matos to apprise Ms. Mohabil that a supervisor was unavailable, when in fact he was available;

c) Failing to respond to the scene in order to assess the situation and make an informed decision as to what course of action Officer Murphy should have taken;

d) Erroneously apprising Officer Murphy not to arrest Mr. Williams, when in fact, Mr. Williams could have been arrested for obstructing the administration of law or other governmental function;

e) Entering inaccurate, misleading, false information in the activity report he submitted to the Internal Affairs Unit.

A disciplinary hearing took place on July 22, 2009. Following the hearing, the Sheriff's Office filed a final notice of disciplinary action suspending Zapoluch for a period of forty-five days.

Zapoluch filed an appeal to the Commission on October 14, 2009. The matter was transmitted to the Office of Administrative Law (OAL) for hearing as a contested case. An administrative law judge (ALJ) held hearings on December 18, 2009, and April 27, 2010.

On July 7, 2010, the ALJ issued an initial decision upholding the forty-five-day suspension. The ALJ made the following specific findings of fact with respect to Zapoluch's conduct:

1. Sgt. Zapoluch refused to speak to Ms. Mohabil when she telephoned the Sheriff's Office on three occasions asking to speak to a supervisor.

2. Sgt. Zapoluch inappropriately instructed Officer Matos to apprise Ms. Mohabil that a supervisor was unavailable when in fact, he was available.

3. Sgt. Zapoluch failed to respond to the scene in order to [assess] the situation and make an informed decision as to what cause of action Officer Murphy should have taken.

4. Sgt. Zapoluch erroneously apprised Officer Murphy not to arrest Mr. Williams when in fact Mr. Williams should have been arrested for obstructing the administration of law or other governmental function.

5. Sgt. Zapoluch entered inaccurate, misleading, false information in the activity report submitted to the Internal Affairs Unit.

In September 2010, the Commission issued its final decision upon de novo review. After considering the exceptions filed by the parties, the Commission adopted the ALJ's initial decision, except that it increased the penalty to a sixty-day suspension. This appeal followed.

II.

On appeal, Zapoluch argues that the charges against him were "without merit" and that the charges were not timely filed under N.J.S.A. 40A:14-147. We note that the applicable statute is actually N.J.S.A. 40A:14-106a, which contains essentially the same requirement but specifically applies to county law enforcement officers. Both the Sheriff's Office and the Commission argue that there is no basis in fact or law to overturn the Commission's decision.

The scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reason ableness. City of Newark v. Natural Res. Council, 82 N.J 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appel lant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super 276, 285 (App. Div. 1986), aff'd, 107 N.J 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).

The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003). This deference is particularly appropriate when the agency has adopted the findings of the ALJ because the ALJ and not the agency has the opportunity to hear "live testimony" and "judge the witnesses' credibility." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "That deferential standard applies to the review of disciplinary sanctions as well." Id. at 28 (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975)). "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)) (internal quotation marks and alteration omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29; see also In re Stallworth, 208 N.J. 182, 194-95 (2011).

Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J.500, 513 (1992) (citing Clowes, supra, 109 N.J.at 587).

Our review of the record convinces us that the Commission's decision was not arbitrary, unreasonable, or capricious. The ALJ's findings of fact, which were adopted by the Commission, were well supported in the record and based upon his opportunity to assess the credibility of the witnesses.2 The ALJ went through each of the specifications and determined that they were supported by the credible evidence presented by the Sheriff's Office.

Zapoluch contends that the ALJ and the Commission reached the wrong conclusions from the evidence, but he does not provide any basis for us to conclude that the decisions reached are not factually supported in the record and the standards of conduct applicable to Zapoluch as a sheriff's officer and supervisor were not breached. Our role on appeal, as outlined above, is not to determine the case anew, but merely to determine whether "(1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Virtua-West, supra, 194 N.J. at 422. Zapoluch has not demonstrated that any of those factors are applicable.

The Commission has authority under N.J.S.A. 11A:2-19 to modify the penalty imposed by an appointing authority, subject only to the limitation that "removal shall not be substituted for a lesser penalty." The Commission stated its reasons for increasing Zapoluch's suspension from forty-five to sixty days as follows:

In the instant matter, the appellant's disciplinary history evidences minor disciplinary actions, all related to neglect of duty and failure to properly supervise. Additionally, the appellant's actions in this matter were clearly inappropriate for a supervisor. Among the charges filed against him, the appellant failed to follow department rules in refusing to speak to a caller; he instructed subordinates to lie; his instructions to a subordinate could have created a dangerous situation; and he submitted an inaccurate and misleading report. Even when a supervisory law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant a severe penalty or removal where it is likely to undermine the public trust. In the instant matter, despite the absence of any major disciplinary history, given his prior minor disciplines and the serious nature of the current offenses, a severe penalty is warranted. In this regard, the Commission notes that a law enforcement officer is held to a higher standard than a civilian public employee. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990). The Commission is particularly mindful of this standard when disciplinary action is taken against a supervisor in a law enforcement agency. Accordingly, an increase to 60 working days is reasonable and will serve as a warning to the appellant that any future infraction could result in a more severe penalty, including removal.

[(Footnote omitted.)]

We find nothing arbitrary, capricious, or unreasonable in the Commission's decision to increase the suspension by fifteen days. The Commission adequately explained its reasons, in the context of the principle of progressive discipline, for increasing the penalty despite the fact that this was Zapoluch's first instance of major discipline. See Stallworth, supra, 208 N.J. at 196-97.

Finally, the Commission was correct in adopting the ALJ's determination that Zapoluch's untimeliness argument was without merit. First, the investigation that ultimately resulted in the disciplinary action against Zapoluch was initiated by a citizen complaint. The charges against Zapoluch were sufficiently related to the citizen complaint to render N.J.S.A. 40A:14-106a inapplicable. The statute specifically states that its forty-five-day time limit "shall not apply to a filing of a complaint by a private individual." Second, the forty-five-day period, if applicable, only begins to run from "the date on which the [official] filing the complaint obtained sufficient information to file the matter upon which the complaint is based." The record supports the ALJ's determination that the investigation was "done in a reasonably prompt fashion" and that "there was no delay between the conclusion of the investigation . . . and the decision to file the charges by the [official] who has that responsibility." Finally, we note that N.J.S.A. 40A:14-106a applies only to charges based upon the appointing authority's internal rules and regulations. Zapoluch was charged with both internal violations and violations under N.J.A.C. 4A:2-2.3(a), which are statewide regulations adopted pursuant to the Commission's authority under N.J.S.A. 11A:2-20. Consequently, even if the charges under the internal rules and regulations had been untimely, the charges under N.J.A.C. 4A:2-2.3(a), which were essentially the same, would not have been barred.

In summary, we are convinced that the Commission's findings are supported by sufficient credible evidence in the record and that its decision to modify the penalty was not arbitrary, capricious, or unreasonable.

Affirmed.

1 Williams was eventually charged with speeding, towing a trailer with no license plate, and having a flat tire.

2 Zapoluch refused to testify at the OAL hearing when called as a witness by the Sheriff's Office. However, the ALJ declined to draw an adverse inference from that refusal. Instead, he based his decision on the testimony of the other witnesses offered by the Sheriff's Office.