IN THE MATTER OF ZYGMUNT KRAWCZYK JUVENILE JUSTICE COMMISSION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04141-13T3

IN THE MATTER OF ZYGMUNT KRAWCZYK,

JUVENILE JUSTICE COMMISSION.

________________________________________

December 16, 2016

 
 

 

Argued September 20, 2016 Decided

Before Judges Fisher, Ostrer, and Leone.

On appeal from the New Jersey Civil Service Commission, Docket No. 2014-256.

Christopher A. Gray argued the cause for appellant Zygmunt Krawczyk (Sciarra & Catrambone, L.L.C., attorneys; Charles J. Sciarra, of counsel; Mr. Gray on the briefs).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent Juvenile Justice Commission (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant Zygmunt Krawczyk appeals the April 25, 2014 final administrative action by the Civil Service Commission (CSC) upholding his 120-day suspension. We affirm.

I.

Appellant is a Senior Corrections Officer employed by the Juvenile Justice Commission (JJC). In January 2009, appellant was accused of domestic violence, and his then-wife obtained a temporary restraining order against him. This required appellant to surrender his ability to carry a weapon in his position at the JJC.

On January 4, 2010, appellant was charged with driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. He pled guilty to the charge on July 27, 2010. As a result, he served a three months' license suspension and was required to install an interlock device on his vehicle. Appellant failed to report the DWI to the JJC and was suspended for five days when it was discovered. Appellant received a letter stating he was scheduled for a mandatory fitness-for-duty evaluation on August 3, 2011 to determine his eligibility to carry a weapon in his position with the JJC. Following this evaluation, Dr. Robert Kanen issued a Confidential Psychological Fitness for Duty Evaluation on August 11, 2011. Dr. Kanen "recommend[ed] that [appellant] be referred for outpatient alcohol counseling of approximately three months before his weapon is returned to him."

The chief of the JJC Office of Investigations sent appellant an August 19, 2011 "Interoffice Communication" entitled "Firearm Privileges Memorandum" (Memorandum), which stated

On August 15, 2011 the Office of Investigations received the results from your psychological evaluation on August 3, 2011 with Dr. Robert Kanen, Psy.D.. Dr. Kanen states in his report that he recommends that you be referred for outpatient alcohol counseling for approximately three months before you can re-apply to have your weapons returned.

In order to assist you with this, once you have completed therapy, you are asked to provide this office with a letter from your therapist stating you have successfully completed your sessions so that you can be sent for a fitness for duty evaluation. Afterward, we will forward this information to [the] DAG[.]

If you have any questions regarding the matter, please feel free to contact me or [the] Sr. Investigator[.]

It is undisputed that appellant did not attend the outpatient alcohol therapy. The chief of the JJC Office of Investigations sent appellant a March 15, 2012 Interoffice Communication entitled "Firearm Privileges Memorandum/Second Request." It stated

On August 19, 2011 the Office of Investigations sent you an interoffice memorandum (see attached) which explained to you the findings of your psychological evaluation on August 3, 2011 with Dr. Kanen.

Dr. Kanen stated in his report that he recommends that you be referred for outpatient alcohol counseling for approximately three months before you can re-apply to have your weapons returned.

The Office of Investigations informed you that once you have completed therapy, you were to provide this office with a letter from your therapist stating you have successfully completed your sessions so that you can be sent for a fitness for duty evaluation. As of this date, we have not received any such documentation from you, please inform this office of your status.

On March 16, 2012, JJC Captain Russell Chen and Captain Robert Mitten told appellant he failed to complete the required three-month alcohol counseling and provide documentation. On April 5, 2012, the JJC issued a Preliminary Notice of Disciplinary Action (NDA) charging appellant with insubordination and inability to perform duties, N.J.A.C. 4A:2-2.3(a)(2), (3). It stated that appellant had been directed to undergo counseling, had not done so, and, as a result, was not qualified to carry a firearm. Because that was part of the job description of a Senior Corrections Officer, the preliminary NDA asserted appellant was not qualified and his "removal from services is required." After a hearing at which appellant claimed he did not receive the August 19, 2011 memorandum, appellant's immediate suspension was upheld. On July 10, 2012, the JJC issued a final NDA sustaining the charges and appellant's removal.

Appellant sought review in the Office of Administrative Law. A hearing was held before an Administrative Law Judge (ALJ). On March 14, 2013, the ALJ determined that appellant did receive the memorandum, that the memorandum mandated action, and that appellant's failure to act was insubordinate. However, the ALJ noted the Memorandum was not expressly phrased as an order, did not have a compliance date, and was part of "a series of actions that had year-long gaps." Moreover, the ALJ noted appellant had since completed the counseling and passed a fitness-for-duty evaluation. Therefore, the ALJ ruled that the penalty should be reduced to a 120-day suspension.

On April 17, 2013, the CSC issued its decision accepting the ALJ's findings of fact and affirming her decision. On April 25, 2014, the CSC awarded appellant $14,771.02 in back pay and $1552.90 in reimbursed health premiums to reflect the change in penalty. Appellant then appealed.

II.

"Appellate courts have 'a limited role' in the review of [CSC] decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "An appellate court affords a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014) (citation omitted). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (citation omitted). "The burden of proving unlawful, arbitrary, or capricious action is on the appellant." In re Foglio, 207 N.J. 38, 47 (2011) (citing N.J.A.C. 4A:2-1.4(c)); see also N.J.A.C. 4A:7-3.2(m)(4). We must hew to our standard of review.

III.

Appellant argues he did not receive the August 19, 2011 Memorandum until March 2012. However, the ALJ found that appellant "did receive the Interoffice Communication directing him to attend three months of counseling." The ALJ credited the testimony of Captains Chell and Mitten, corroborated by a March 19, 2012 e-mail from Chell. Their testimony and e-mail showed that on March 16, 2012, when they reminded appellant that he had been told in August 2011 that he was "required to attend three months of alcohol counseling[,] . . . Officer Krawczyk replied that he did not attend the course because he did not have the money to pay for it due to other financial considerations at the time."

Captain Mitten testified that appellant never said he did not receive the Memorandum and that appellant never gave any indication that there were any other reasons, besides financial troubles, that stopped him from complying with the Memorandum. Captain Chell testified he was "absolutely" sure appellant was aware of the Memorandum.

"[I]t is not for us . . . to disturb that credibility determination, made [by the ALJ] after due consideration of the witnesses' testimony and demeanor during the hearing" and adopted by the CSC. H.K. v. State, 184 N.J. 367, 384 (2005). The ALJ's finding that appellant received the Memorandum was based on substantial credible evidence and was not arbitrary, capricious, or unreasonable.

Appellant also argues the Memorandum did not provide specific direction to him, nor was it posed as an order. In fact, the Memorandum made clear what the JJC expected appellant to do. The Memorandum conveyed that appellant's psychological evaluator recommended appellant undergo outpatient alcohol counseling for three months. The Memorandum then stated "[i]n order to assist you with this, once you have completed therapy," indicating appellant should complete the recommended therapy. Further, it stated "you are asked to provide this office with a letter from your therapist stating you have successfully completed your session so that you can be sent for a fitness for duty evaluation." Thus, appellant was explicitly asked to provide documentation of successful completion, necessarily implying a requirement to complete counseling.

The ALJ also noted that the Memorandum did not include a compliance date. However, the Memorandum made clear that completing counseling and supplying the documentation was a step for appellant to become fit for duty and obtain a right to carry a weapon, matters of immediate importance. Moreover, about seven months passed without appellant making any effort to begin therapy.

Thus, the language of the Memorandum was clear enough to justify the ALJ's factual finding that the Memorandum contained an order, and that appellant's failure to act for seven months was sufficient to show he was insubordinate. We will not disturb the finding of insubordination.

Finally, appellant argues the 120-day suspension was an egregious penalty. He bases that argument on his claim that he did not receive the Memorandum, the vagueness in the Memorandum, and his lack of prior history. His argument is unavailing, as the ALJ found that appellant did receive the Memorandum and that it was clear enough to require appellant to complete therapy and provide documentation. Moreover, the ALJ took the vagueness of the Memorandum into account in reducing the penalty from termination to a 120-day suspension.

Furthermore, appellant did have a prior history of discipline. As the ALJ noted, appellant's "prior history across a fifteen-year period consists of a five-day suspension for failing to report the [DWI] promptly and a thirty-day suspension for falling asleep on duty." Thus, we cannot say that the 120-day suspension falls outside the scope of progressive discipline.

New Jersey's "'concept of progressive discipline has been utilized in two ways': (1) to 'ratchet-up' or 'support imposition of a more severe penalty for a public employee who engages in habitual misconduct'; and (2) 'to mitigate the penalty' for an employee who has a record largely unblemished by significant disciplinary infractions." Stallworth, supra, 208 N.J. at 196 (citation omitted). Here, appellant's "prior disciplinary record was 'inherently relevant' to determining an appropriate penalty for a subsequent offense." In re Carter, 191 N.J. 474, 483 (2007).

The ALJ and CSC found that a 120-day suspension was appropriate. "[T]he significance or impact of the prior disciplinary record[ is] a subject particularly within the expertise of the [CSC]." Stallworth, supra, 208 N.J. at 200. Courts "accord substantial deference to" the CSC's choice of sanction. Herrmann, supra, 192 N.J. at 34-35. We cannot say that "the 'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Stallworth, supra, 208 N.J. at 195 (quoting Carter, supra, 191 N.J. at 484).

Affirmed.