IN THE MATTER OF JOHN BATIUK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF JOHN BATIUK,

TOWNSHIP OF WOODBRIDGE POLICE

DEPARTMENT.

_______________________________________

February 24, 2015

Submitted January 13, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from the New Jersey Civil Service Commission, Docket Nos. 2013-1323 and 2013-1322.

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 appeals from a final determination of the Civil Service Commission ("Commission"), which found that his removal from employment as a police officer in the Township of Woodbridge (the "Township") was justified. We affirm.

Batiuk was an officer in the Township's Police Department (the "Department") for approximately forty-one years. He had the position of Sergeant for sixteen years until 2011, when he was demoted.1 On October 25, 2012, the Department served Batiuk with a Preliminary Notice of Disciplinary Action ("PNDA"), charging him with violating the Department's rules and regulations, and its Standard Operating Procedures ("SOP"), and engaging in conduct for which discipline may be imposed under N.J.A.C. 4A:2-2.3(a)(4) and (11).2

The PNDA stated that Batiuk: failed to report for duty on four dates without providing a note from a doctor explaining his absences; failed to return calls regarding his unauthorized absences; violated direct orders by failing to return calls regarding his unauthorized absences; and failed to keep a required appointment for and comply with a required fitness-for-duty examination. The proposed disciplinary action was removal. Batiuk requested a departmental hearing, which was scheduled for November 5, 2012.

On October 29, 2012, the Department served another PNDA upon Batiuk, charging him with violating the Department's rules and regulations and its SOP, and engaging in conduct for which discipline could be imposed under N.J.A.C. 4A:2-2.3(a)(4) and (11). The PNDA stated that Batiuk failed to report for duty on October 19, 20, 21, 22 and 27, 2012, without providing a doctor's note excusing his absences, and that he had thus been absent from work without cause or leave of absence for five consecutive days. The proposed disciplinary action was removal.

According to the Department, Batiuk failed to appear at the appointed time for his November 5, 2012 hearing. It is unclear from the record whether he appeared at all. Nevertheless, the Department determined that the charges in both PNDAs were sustained, and Batiuk was informed that he was removed from his position effective that day.

Batiuk sought review of the Department's actions by the Commission, which referred the matter to the Office of Administrative Law ("OAL") for a hearing before an Administrative Law Judge ("ALJ"). The ALJ conducted the hearing on April 12, 2013. Batiuk testified on his own behalf. Sergeant Eric Nelson ("Nelson"), Detective Sergeant Vincent Totka ("Totka"), Detective Lieutenant Damian Neste ("Neste"), and Police Director Robert Hubner ("Hubner") testified for the Department. Thereafter, the ALJ issued an initial decision.

The ALJ found that Batiuk was absent from work on October 17, 2012, the day he had been ordered to appear for a fitness-for-duty examination, with comprehensive psychological analysis. According to the ALJ, the absence was unauthorized in violation of the Department's rules and regulations because Batiuk provided no documentation from a physician excusing the absence. The ALJ also determined that the Department had not presented sufficient evidence to establish that Batiuk had deceived the Department's doctor as to his true condition.

In addition, the ALJ found that Batiuk violated the Department's SOP by failing to attend the psychological fitness-for-duty examination without producing a doctor's note stating that he was medically unable to take the exam, and by refusing to sign in and take the examination. The ALJ stated that Batiuk's actions cast the Department in a negative light with the medical professionals who were to conduct the examination.

The ALJ also found that Batiuk violated the SOP by failing to attend the required fitness-for-duty exam, when he knew that he did not have any accrued sick time available and did not provide a doctor's note with a medical explanation for his failure to participate in the exam. The ALJ determined that Batiuk's actions constituted neglect of duty under the SOP.

The ALJ further found that Batiuk had violated the SOP by (1) being absent on October 17, 2012, without authorization; (2) refusing to comply with the order requiring that he attend the fitness-for-duty exam; (3) failing to return calls to Nelson regarding his absences; and (4) failing to return Totka's calls regarding his absences. The ALJ wrote that these actions or omissions constituted insubordination under the SOP.

Moreover, the ALJ determined that Batiuk violated the SOP by failing to make himself available during a sick-leave investigation, and by taking unauthorized and improper absences on six dates. Though the ALJ found that the Department did not prove that Batiuk's absenteeism was either excessive or chronic, the ALJ determined that Batiuk's failure to communicate with the Department concerning his absences, and his failure to provide medical documentation in support of his claimed illness were cause for discipline under N.J.A.C. 4A:2-2.3(a)(11).

The ALJ then addressed the question of the penalty to be imposed. The ALJ noted that Batiuk previously had four progressive major suspensions for charges of neglect of duty, failure to obey laws and other departmental charges. The ALJ also noted that Batiuk was demoted in 2011. The ALJ concluded that, upon consideration of the factual basis for the charges at issue, Batiuk's suitability for continued employment as a police officer, the standard to which police officers are held, and his disciplinary history, removal was "merited."

Thereafter, Batiuk filed exceptions to the ALJ's initial decision. The Commission issued its final decision on July 22, 2013, adopting and accepting the ALJ's findings of facts and conclusion. The Commission determined that the Department's action in removing Batiuk was justified. This appeal followed.

On appeal, Batiuk argues that: (1) the Commission's decision is arbitrary, capricious or unreasonable and contrary to law; (2) he was denied his right to due process because he was not afforded a departmental hearing; and (3) the penalty imposed was disproportionate to the charges and was inconsistent with principles of progressive discipline.

We have carefully considered these arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following.

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) (citation omitted). Our review of an agency's decision is limited to whether: (1) the decision is consistent with the applicable law; (2) there is substantial credible evidence in the record to support the agency's factual findings; and (3) 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)).

We are satisfied that there is sufficient credible evidence in the record to support the agency's factual findings. We reject Batiuk's argument that the order requiring him to submit to a fitness-for-duty exam was improper. Moreover, the record does not support Batiuk's contention that his absence on October 17, 2012 was not unauthorized because he had available sick time, or that he asked permission to use any available non-sick leave time.

The record also lends no support to Batiuk's contention that his absences on October 17, 19, 21, 22, and 27 were all authorized by "the two notes of Dr. [Benjamin] Fand." The first note, which Batiuk may have had on October 18, merely mentioned that Batiuk had an office visit with Dr. Fand on October 17, 2012, and did not state that he was too ill to appear for the fitness-for-duty exam. Dr. Fand did sign a letter dated October 24, 2012, indicating that Batiuk should be excused from work from October 17 to October 27, but there is no evidence that Batiuk ever provided this note to the Department when the absences were taken.

In addition, there was sufficient evidence to support the ALJ's and the Commission's finding that his failure to appear for the exam on October 17 and his refusal to participate in the exam on October 18 constituted neglect of duty under the Department's SOP. Moreover, there was sufficient evidence to support the finding that Batiuk failed to cooperate with the Department's sick-leave investigation.

There also is no merit to Batiuk's contention that he was denied due process because he was not afforded a departmental hearing on the charges. Even if Batiuk had been erroneously denied a departmental hearing, that error was cured because Batiuk had a de novo hearing at the OAL on the charges. See Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994), certif. denied, 142 N.J. 446 (1995).

Batiuk further contends that the penalty of removal was disproportionate to the charges, and inconsistent with principles of progressive discipline. We disagree. "[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." In re Polk, 90 N.J. 550, 578 (1982) (internal quotation marks and citation omitted).

The penalty imposed here was not disproportionate to the charges, particularly when viewed in light of Batiuk's position as police officer, the standard of conduct expected of police officers, his prior disciplinary record and the seriousness of these charges. Batiuk's contention that the Department failed to adhere to principles of progressive discipline is entirely without merit.

The record indicates that Batiuk has had several prior major disciplines for, among other things, unauthorized absences, sick-leave abuse and neglect of duty. The previously-imposed disciplines include suspensions, a letter of reprimand, and a demotion. The record supports the Commission's determination that, based on the charges at issue here, Batiuk's removal was justified.

Affirmed.

1 The Commission later found that Batiuk's demotion was justified, a decision we affirm in In re John Batiuk, Township of Woodbridge, Docket No. A-2332-12, an opinion also filed this date.

2 N.J.A.C. 4A:2-2.3(a), which enumerates the general causes for major discipline, was amended in 2012. N.J.A.C. 4A:2-2.3(a)(11) previously listed "[o]ther sufficient cause" as an appropriate basis for major discipline. "Other sufficient cause" is now located at N.J.A.C. 4A:2-2.3(a)(12). See 43 N.J.R. 2691(a); 44 N.J.R. 576(a); N.J.A.C. 4A:2-2.3(a)(11) to (12).