IN THE MATTER OF WOJCIECH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3141-04T23141-04T2

IN THE MATTER OF WOJCIECH

CZAJKOWSKI

_____________________________

 

Submitted September 27, 2005 - Decided

Before Judges Collester and S.L. Reisner.

On appeal from a Final Administrative

Decision of the Merit System Board, CSV

Docket No. 3270-04, 4900-03.

Cuccio and Cuccio, attorneys for appellant

(Emil S. Cuccio, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent Department of Transportation (Patrick

DeAlmeida, Assistant Attorney General, of counsel; Nonee Lee Wagner, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Wojciech Czajkowski, a construction and maintenance technician with the Department of Transportation (DOT), appeals the final administrative decision of the Merit System Board (Board) imposing a three month suspension and a fine of $1,685 based on findings that Czajkowski left his assigned work area without permission, used his DOT issued vehicle for unauthorized personal business, made false statements to investigating authorities and intentionally falsified records.

The findings related to incidents on July 31, 2002, which culminated in a motor vehicle accident while Czajkowski was driving his State vehicle. The day before, he received an assignment to inspect the work of a contractor repairing highway guardrails on State Highway 94 in Hamburg, New Jersey and to remain there until the end of the work day. However, Czajkowski left that worksite at about 10:30 or 11:00 a.m. and drove his State vehicle (1996 Jeep Cherokee) about forty miles northeast to Ramsey, New Jersey where he purchased two pairs of pants and candy. He then traveled to Linden, New Jersey, about thirty-eight miles southeast, to eat lunch, buy gas and purchase pierogies and cheese spread from a delicatessen.

About 4 p.m. Czajkowski was traveling west on Route 24 near Summit when he crossed the center median and struck a pick-up truck, causing it to roll over and eject a passenger. Before being transported to Morristown Memorial Hospital, Czajkowski told the investigating state trooper a Ford pick-up truck was tailgating him. He said "I wanted to move right, I don't know if he hit me and pushed me. The next thing I know, I was on the center median." However, it was determined that the Jeep Cherokee traveled at least 360 feet through the median before the brakes were applied. As a result Czajkowski was given a motor vehicle citation for reckless driving.

After Czajkowski had been transported to the hospital, Aram Mardekian, Executive Director of Regional Operations of Region North of the DOT, reported to the scene of the accident. He inspected the Jeep Cherokee, found no indication that the vehicle had been bumped or pushed but noted that the vehicle was totaled because of extensive front-end damage. Found inside the vehicle were newly purchased slacks, food and receipts for that day from stores outside Czajkowski's assigned area.

The next day Czajkowski filled out an accident report and repeated his story that a Ford pick-up truck pushed him from behind, causing him to lose control and roll through the median to the other lane. On September 10, 2002, DOT Chief of Internal Investigations Robert Long interviewed Czajkowski. At first Czajkowski fabricated his reasons for leaving the job site for his purchase of personal items some distance away. After being confronted by Investigator Long with the receipts and other evidence, Czajkowski admitted that he had not told the truth. Subsequently, he entered a guilty plea to an amended charge of unsafe operation of a vehicle in the Summit Municipal Court.

A preliminary notice of disciplinary action was issued by the DOT on December 13, 2002 for removal from employment based on leaving an assigned work area, unauthorized use of a DOT vehicle and falsification by giving untruthful statements to investigating authorities. Following a departmental hearing on January 27, 2003, the hearing officer issued a report sustaining the disciplinary charges and ordering a three month suspension.

While these disciplinary charges were pending, the DOT Accident Review Board reviewed the circumstances of the accident and found that the accident was preventable. As a result a second preliminary notice of disciplinary action was filed for a three-month suspension and a fine of $1,685 representing the value of the Jeep Cherokee. The disciplinary charges for damage to State property were upheld by the hearing officer, who ordered a reduction in penalty from three months to one month and the fine.

Czajkowski appealed both disciplinary actions. An Administrative Law judge (ALJ) conducted a hearing and concluded that Czajkowski neglected his duties, used his DOT vehicle improperly, negligently damaged State property, and gave false statements to investigating officers. In recommending appropriate disciplinary measures, the ALJ considered the facts that Czajkowski had been a DOT employee for over twenty-one years without prior disciplinary action and that the DOT guidelines for a first offense of neglect of duty by leaving an assigned work area without permission and unauthorized use of a DOT vehicle, was a twelve day suspension and that the suggested penalty for a first offense of falsification ranged from official reprimand to removal. The ALJ recommended a three month suspension imposed on the initial charges and an additional month suspension for negligent damage to the State vehicle with the fine equal to its value or $1,685.

Both Czajkowski and the DOT filed exceptions to the ALJ decision. On December 3, 2004, the Board issued its final decision, which adopted the ALJ's findings of fact and conclusions of law. However, it reduced the disciplinary penalty to three months suspension. The Board gave the following explanation:

In the instant matter, the Board acknowledges that the appellant has an unblemished employment record and a careful review of the penalties imposed must be conducted. However, the Board finds that the infractions of the first FNDA are of such severity that they warrant major discipline. The appellant is placed in a position of trust. He works independently and often is outside the purview of his supervisor. Therefore, leaving his assigned work area without permission, using his department issued vehicle for personal business, and making false statements relating to his activities, contradict this trust. Such offenses warrant a significant penalty of a three month suspension. The Board is not persuaded by appellant's exceptions that this suspension should be reduced because the ALJ did not find that he knowingly falsified his time record. Repeatedly making false statements to Long is sufficient to sustain the charge of falsification and, considering all the charges which were sustained, the penalty imposed as to the first FNDA was proper and should not be reduced.

Czajkowski appeals from the final administrative decision of the Board on the sole issue of the length of his suspension. He argues that the DOT's progressive disciplinary policy required imposition of a lesser penalty. We affirm the determination of the Merit System Board.

The DOT procedure for employment discipline promotes a policy of progressive discipline, but it further states that any breach may result in removal regardless of the existence or absence of prior disciplinary actions when the totality of circumstances necessitates such action. In addition to the employee's conduct record and the length of service, policy underscores that the seriousness and circumstances of the breach must be weighed.

Our scope of review of a final administrative decision limits us to consideration of whether it was arbitrary, capricious or unreasonable or lacks support in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). While progressive discipline must be considered in evaluation of the proper punishment for breach of policy or discipline, West New York v. Bock, 38 N.J. 500, 528 (1962), a first infraction of a serious nature permits a departure from that policy. Henry, supra, 81 N.J. at 580. Here the Board properly gave weight to the absence of any prior disciplinary infractions but determined that the falsifications of Czajkowski were of such magnitude as to justify a harsher treatment. We hold that the discipline imposed was not arbitrary, capricious or unreasonable, and the record supports the need for a departure from progressive discipline. Czajkowski gave false statements to a DOT investigator and to a state trooper. He maintained his false story until confronted with objective facts, which forced him to admit to the infractions. His actions constituted a breach of public trust justifying the disciplinary penalty imposed.

 
Affirmed.

(continued)

(continued)

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A-3141-04T2

October 28, 2005