IN THE MATTER OF ERIK RUCZYNSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4649-05T24649-05T2

IN THE MATTER OF

ERIK RUCZYNSKI.

_______________________________________

 

Submitted December 6, 2006 - Decided December 29, 2006

Before Judges Yannotti and Messano.

On appeal from the Department of Law & Public Safety, Division of New Jersey State Police.

Dochney & Ebberup, attorneys for appellant Erik Ruczynski (Robert A. Ebberup, on the brief).

Stuart Rabner, Attorney General, attorney for respondent New Jersey Division of State Police (Linda Vele Alexander, Deputy Attorney General, on the brief).

PER CURIAM

On March 10, 2006, the Superintendent of State Police (Superintendent) suspended State Trooper Erik Ruczynski (Ruczynski) without pay. Ruczynski was afforded a hearing on the suspension pursuant to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Ruczynski appeals from a determination dated March 27, 2006, in which the hearing officer found that the Superintendent had the authority to impose the suspension and it was justified in order to maintain the effective direction of services to the public. For the reasons that follow, we affirm.

On February 7, 2006, the State Police announced that it was conducting an investigation called "Operation Slap Shot," which allegedly involved a multi-million dollar sports bookmaking enterprise. The investigation resulted in the arrest of State Trooper James J. Harney (Harney), an eight-year veteran with the force, who was an alleged partner in the "bookmaking ring." At the hearing in this matter, Deputy Attorney General Phillip Dowdell (Dowdell) stated that Ruczynski had been captured on a wiretap discussing gambling with Harney. Lietutenant Brad Koshland (Koshland) asserted that the criminal investigation was continuing and the matter would be presented to a grand jury. Koshland also said that the persons handling the investigation were the only persons with knowledge as to what was said during the conversations intercepted on the wiretaps. The hearing officer found that Ruczynski's suspension was "warranted and justified." This appeal followed.

The scope of our review in an appeal from a determination of an administrative agency is well-established. "In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J 8, 27 (1994). We can intervene only "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. We must determine whether: 1) the agency decision contravenes the State or Federal Constitution; 2) the agency's action violates express or implied legislative policies; 3) the record contains substantial evidence to support the findings upon which the agency's decision is based; and 4) 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., 89 N.J. 556, 562 (1963)). Applying these principles of appellate review, we are satisfied that the hearing officer's decision must be affirmed.

The Superintendent has authority under N.J.S.A. 53:1-10 to make rules and regulations for the discipline and control of the State Police, subject to the Governor's approval. Implicit in the authority conferred upon the Superintendent by N.J.S.A. 53:1-10 is "the long recognized power to suspend a subordinate pending investigation of possible charges against him." Kelty v. State, Dep't of Law and Public Safety, 321 N.J. Super. 84, 94 (App. Div. 1999) (citing In re Toth, 175 N.J. Super. 254, 261 (App. Div. 1980)). We are convinced that the Superintendent properly exercised his disciplinary authority under N.J.S.A. 53:1-10 in ordering Ruczynski's suspension.

Ruczynski argues that the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34 (the Wiretap Act), precludes use of the intercepted communications by the Superintendent in this disciplinary matter. We disagree. The Wiretap Act provides in pertinent part that:

Any investigative or law enforcement officer or other person who, by any means authorized by this act, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose or use such contents or evidence to investigative or law enforcement officers of this or another state, any of its political subdivisions, or of the United States to the extent that such disclosure or use is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

[N.J.S.A. 2A:156A-17a.]

We are satisfied that the investigators who heard Ruczynski discussing gambling with Harney on the wiretap were permitted by N.J.S.A. 2A:156A-17a to disclose that information to the Superintendent because he is undoubtedly a "law enforcement officer" in this State and disclosure of the information was appropriate for the "proper performance" by the Superintendant of his disciplinary responsibilities under N.J.S.A. 53:1-10. We are further convinced that it was permissible in the circumstances for Koshland to disclose that information to the hearing officer because the hearing officer was acting for and on behalf of the Superintendent in conducting the Loudermill hearing.

In arguing that the disclosure of information from the wiretaps was not authorized by N.J.S.A. 2A:156A-17, Ruczynski relies upon In re Spinelli, 212 N.J. Super. 526 (Law Div. 1986). In that case, the chief of police of a municipality sought a court order to compel the county prosecutor to disclose tape recordings of wiretapped conversations for use by the police chief in support of disciplinary charges against an officer. Id. at 528-29.

The Law Division held that in a disciplinary matter, the police chief is not acting as a "law enforcement officer" under N.J.S.A. 2A:156A-17a. Rather, the chief of police is "merely a municipal department head." Id. at 532. The Law Division further found that such use of the wiretapped conversations would not be for the "proper performance" of the police chief's official duties because the Wiretap Act did not permit use of the intercepted conversations in a non-criminal matter. Id. at 532-38.

Ruczynski's reliance upon Spinelli is misplaced. In that case, the chief of police sought disclosure of conversations that had been wiretapped as part of an investigation undertaken by the county prosecutor. The chief of police was not acting in his capacity as an investigative officer. By contrast, in this case, the conversations were intercepted in an investigation by the State Police. The Superintendent is the head of the agency conducting the investigation.

Moreover, the suspension of a trooper pending further investigation, based on information developed in a State Police investigation, was clearly in furtherance of the "proper performance" of the Superintendent's statutory duties under N.J.S.A. 53:1-10. To conclude otherwise would require the Superintendent to turn a blind eye to information gathered in an investigation by his own agency which suggests that a trooper may have been involved in criminal activity. In our view, such an interpretation of N.J.S.A 2A:156A-17a would be patently unreasonable.

Ruczynski also argues that there was insufficient competent evidence to support his suspension. Relying upon Weston v. State, 60 N.J. 36, 52 (1972), Ruczynski argues that the order of suspension cannot rest on hearsay alone, without some residuum of competent evidence. We are convinced, however, that the suspension at issue here had sufficient factual support. Dowdell advised the hearing officer that in the intercepted conversation Ruczynski was heard discussing gambling with Harney, a trooper who had been arrested due to his alleged involvement with an illegal "bookmaking ring." Obviously, further information could not be disclosed because the conversation had been intercepted as part of an ongoing criminal investigation. Nevertheless, the evidence was sufficient to warrant Ruczynski's suspension pending further investigation.

Affirmed.

 

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A-4649-05T2

December 29, 2006