IN THE MATTER OF ZANE BATTEN, DEPARTMENT OF ENVIRONMENTAL PROTECTION, WINSLOW TOWNSHIP (NEW JERSEY CIVIL SEVICE COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2252-16T2
IN THE MATTER OF ZANE BATTEN,
DEPARTMENT OF ENVIRONMENTAL
PROTECTON, WINSLOW TOWNSHIP
__________________________________
Argued June 26, 2018 – Decided October 12, 2018
Before Judges Simonelli and Koblitz.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2015-3161.
Frank M. Crivelli argued the cause for appellant Zane
Batten (Crivelli & Barbati, LLC, attorneys; Frank M.
Crivelli, on the brief).
Jennifer L. Moriarty, Deputy Attorney General, argued
the cause for respondent Department of Environmental
Protection (Gurbir S. Grewal, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Jennifer L. Moriarty, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Civil Service Commission (Pamela N.
Ullman, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
Appellant Zane Batten is a Conservation Officer (CO) employed by the
New Jersey Department of Environmental Protection (DEP), Division of Fish
and Wildlife (Division), Bureau of Law Enforcement (Bureau). He appeals from
the December 22, 2016 final decision of the Civil Service Commission
(Commission), which adopted the initial decision of an administrative law judge
(ALJ), finding him culpable of conduct unbecoming a public employee and other
sufficient cause and imposing a seventy-day suspension without pay. We affirm.
I.
The Bureau is responsible for the enforcement of laws pertaining to fish
and wildlife resources and any issues relating to the pollution of the waterways.
There are four different regions in the State and each region has COs. COs are
sworn law enforcement officers who enforce State and Federal laws enacted to
protect and manage fish and wildlife resources. COs do not investigate
suspected marijuana cultivation, but sometimes become involved with narcotics
enforcement where marijuana growth is suspected within a State Wildlife
Management Area.
The Bureau's chain of command is as follows:
1. a CO III reports to a CO II (Lieutenant);
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2. a CO II reports to a CO I (Captain);
3. a CO I reports to the Supervising CO (the Deputy
Chief);
4. the Deputy Chief reports to the Chief; and
5. the Chief reports to the Assistant Director and the
Director of the Division.
The Bureau's Standard Operating Procedure (SOP) requires that:
[a]ll persons in the Bureau . . . shall follow the chain-
of-command as established by the organizational chart
in all formal or official vertical communications and
correspondence that involves activities, statements,
questions or any other communications related to their
official capacity or duties in the Bureau . . . unless
otherwise directed.
During the relevant time period, Batten was assigned as a covert CO II
investigator in the Bureau's Special Investigations Unit (SIU). 1 His chain of
command was as follows:
Captain Sean Cianciulli (Batten's immediate
supervisor);
Deputy Chief Matthew Brown (commander of the SIU
who was responsible for overseeing ongoing operations
within the SIU and approving any proposed
investigations); and
1
The Bureau formed the SIU to covertly investigate the illegal capture and sale
of wildlife and assist uniformed officers in apprehending offenders.
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Acting Chief Mark Chicketano (responsible for giving
final approval to any investigation Brown approved).
The SOP requires investigators to obtain the approval of the Deputy Chief
and Chief to initiate an investigation. The SOP also requires investigators to
"periodically inform their supervisor as to the current status of an active cases"
and "inform the supervisor any time major activity occurs" and maintain certain
documentation of ongoing investigations.
Covert COs are given latitude to make decisions during an ongoing,
approved investigation because frequent contact with their chain of command
would risk exposing them as law enforcement. Although covert COs may have
little face-to-face contact with their supervisor after initiation of an approved
undercover investigation, they are still required by the SOP to obtain pre-
approval from their chain of command to conduct an investigation. Since Brown
and Chicketano were in Batten's chain of command, he had to obtain their
approval before initiating an investigation. He also had to periodically inform
his supervisor as to the current status of any active case.
In November 2013, Batten allegedly received a tip that someone was
growing marijuana in a shed on property adjacent to the State property he
patrolled. At that time, he was not assigned to a narcotics investigation or a
narcotics task force. He ascertained the person allegedly growing the marijuana
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was J.G.,2 with whom he had several encounters over an eighteen-year period
and who he believed was an active gang member whose friends were murderers
and drug dealers.
Batten referred the matter to the Cumberland County Prosecutor's Office
(CCPO) for investigation and handling. The CCPO advised Batten there were
no active ongoing investigations of marijuana cultivation. Batten then decided
to initiate his own investigation. Without obtaining the approval of or notifying
Brown or Chicketano, on November 9, 2013, Batten initiated an investigation of
J.G. in an attempt to obtain probable cause to search the shed for marijuana.
Batten claimed that in the past, he only talked to his supervisors about an open
investigation once he established probable cause and it was not unusual to
initiate an investigation without notifying anyone. This was contrary to the
SOP.
As part of his plan, Batten placed a phony advertisement on Craigslist in
J.G.'s name inviting members of the public to come to J.G.'s property for free
scrap metal and listing J.G.'s phone number and the property's address (the
phony ad). Batten believed that if people came to the property unannounced,
2
We use initials to protect J.G.'s privacy.
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J.G. would become nervous and move the marijuana and Batten would then have
probable cause for a search if he observed J.G. moving the marijuana.
The day after he placed the phony ad, Batten hid behind the shed to see if
he could smell marijuana or observe J.G. move it. He hid there for eight to ten
hours, but observed no suspicious activity. He removed the phony ad, did not
pursue the matter further, and did not maintain documentation of the
investigation. As a result of the phony ad, J.G. received phone calls and
approximately ten to twelve people came to the property looking for scrap metal.
A few days after Batten placed the phony ad, J.G. struck him with a bucket
while Batten was investigating a trespass complaint on property he patrolled.
Batten signed an arrest warrant for J.G., and J.G. was arrested and charged with
assault. The charge was ultimately dismissed. While investigating Batten's
assault allegations, J.G.'s attorney discovered that Batten had placed the phony
ad.
J.G. filed an internal affairs (IA) complaint against Batten with the CCPO,
alleging harassment. Cianciulli accompanied Batten to an interview with the
CCPO, during which Batten admitted that he placed the phony ad and why he
did so. The CCPO referred the matter to the Bureau to be handled by the DEP.
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Brown and Chicketano went to the DEP's Division of Human Resources
(HR), Office of Labor Relations (OLR) regarding J.G.'s complaint. Among its
rsponsibilities, the OLR is authorized to review the Bureau's requests for
discipline and determine the appropriate charges and penalty. According to
Chicketano, it was typical for the OLR to be involved from the inception of an
IA investigation.
The Bureau's SOP requires investigators of IA complaints to "interview
the complainant, all witnesses and the subject officer as well as review relevant
reports and records, and obtain other relevant information and materials,"
complete a report summarizing the matter, and provide recommended
dispositions, including exonerated, sustained, not sustained or unfounded. The
investigation report is then sent to the Chief, who reviews the documentation,
directs whatever action is deemed appropriate, and notifies the officer of the
disposition.
If the complaint is sustained and it is determined that formal charges
should be brought, the matter is directed to the OLR for further action. The
OLR must prepare a formal notice of charges and hearing. DEP's Policy and
Procedures (the Policy) requires that all employees "cooperate with OLR and
provide information requested." Under the Policy, the OLR is responsible for
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reviewing pertinent documents provided by program supervisors and may
conduct additional investigations and issue appropriate disciplinary action, both
charges and penalty, as warranted.
An investigator interviewed J.G. and summarized the interview in a
report. After the interview, Rina Heading from the OLR contacted Batten and
his union representatives about scheduling Batten's interview. She advised them
that the investigation could lead to discipline and it was Batten's responsibi lity
to contact his union representatives if he wanted union representation at the
interview.
Batten met with Heading, Chicketano and Brown without a union
representative. He admitted he posted the phony ad and conducted surveillance
of J.G.'s property. Heading requested that Batten submit a written statement.
The DEP claims he refused to provide a written statement. Batten and
Chicketano raised a concern about whether a written statement would be subject
to disclosure under the Open Public Records Act (OPRA). Batten testified
before the ALJ that he was concerned for his safety if J.G. filed an OPRA request
and discovered he had posted the phony ad because J.G. and his associates were
involved in violent crimes. While he was allegedly concerned for his own
safety, he testified he was not concerned about the individuals who might have
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shown up at the property in response to the phony ad. Batten also maintained
that the investigation was "ongoing" because of "the knowledge [he had] about
the marijuana that subsequently can be . . . investigated the next year." However,
there was no approved ongoing investigation.
The OLR advised Batten's union of the meeting with Batten and advised
that the OLR had to meet with Batten again to obtain a written statement. Batten
attended a second meeting with three union representatives and refused to
provide a written statement.
Brown sent a confidential memorandum to Chicketano summarizing the
IA investigation. Brown determined the allegations against Batten regarding
the phony ad were substantiated and recommended the IA complaint be
sustained. As required by the SOP, the IA complaint was directed to the OLR
for further action.
The matter was brought to the attention of HR Director Robin Liebeskind,
who advised DEP management and provided documentation, including J.G.'s IA
complaint and Brown's confidential memorandum. Liebeskind and DEP
management considered the severity of the offense and potential danger to the
public caused by Batten's actions and Batten's employment record, and
determined a seventy working day suspension was an appropriate penalty.
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The DEP served Batten with a preliminary notice of disciplinary action,
charging him with conduct unbecoming a public employee, N.J.A.C. 4A:2-
2.2(a)(6), for initiating an investigation without notice to or approval from his
chain in command in violation of the SOP, and for potentially endangering the
public. The DEP also charged Batten with other sufficient cause, N.J.A.C. 4A:2-
2.3(a)(12), for refusing to provide a written statement in violation of the Policy.
The DEP sought to suspend Batten for seventy working days.
The charges and penalty were sustained following a departmental hearing.
The DEP then served Batten with a final notice of disciplinary action and
suspended him for seventy working days without pay. Batten appealed to the
Commission, which transferred the matter to the Office of Administrative Law
for a hearing as a contested case.
Brown, Liebeskind, and OLR Administrator Jason Strapp testified for the
DEP. Strapp testified the OLR is "the only [d]epartment within the DEP that
has the ability to discipline[.]"
Batten and Chicketano testified on Batten's behalf. Chicketano agreed the
SOP provides that the OLR is responsible for bringing formal disciplinary
charges and conducting a hearing. He testified he asked the OLR to verify that
a written statement by Batten would not be subject to OPRA and explained that
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if the OLR determined the statement would be subject to OPRA, it would be
Batten's decision whether to give a written statement or not. He testified that
Strapp reassured him no further action would be taken until such determination
was made. Ultimately, he never learned whether the statement would be subject
to OPRA.
Chicketano also testified that during an IA investigation, he normally
made recommendations to the OLR regarding discipline; however, he made no
recommendation to the OLR as to what penalty Batten should receive. He
recommended to Brown and Cianciulli that Batten receive a formal letter of
reprimand, but no suspension. Notably, Chicketano testified he would not have
approved Batten's investigation of J.G. or his plan to place the phony ad enticing
individuals to go to J.G.'s property in light of J.G.'s alleged criminal affiliations
that could endanger the public.
In her initial decision, the ALJ found Batten was not credible. The ALJ
rejected Batten's testimony that he was given wide discretion to do what he
wanted and needed no authorization to initiate and conduct investigations. The
ALJ found that Batten's "failure to report the investigation, even after the fact,
[was] further evidence that he knew such conduct was not permitted." The ALJ
further found that Batten had "ongoing issues with [J.G.], which may have been
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why he failed to obtain the necessary authorization to investigate and conduct
surveillance on [J.G.]" The ALJ also rejected Batten's testimony about why he
feared submitting a written statement. The ALJ found Batten knew that J.G. had
discovered Batten placed the phony ad, and Batten had arrested J.G. in the past
and filed assault charges against him.
The ALJ concluded that the DEP proved by a preponderance of the
evidence that: (1) Batten violated the SOP requiring him to obtain authorization
to conduct an investigation, constituting conduct unbecoming a public
employee; and (2) Batten violated the Policy by refusing to give a written
statement to the OLR. In affirming the seventy working day suspension, the
ALJ found that despite having no prior disciplinary record, "initiating an
investigation such as this without any authorization [was] egregious enough to
merit a severe penalty" and Batten's "failure to provide a written report after
conceding to the conduct [was] a clear violation of the [Policy], as well as
insubordination."
In his exceptions filed with the Commission, Batten argued that the ALJ:
(1) improperly questioned and cross-examined witnesses; (2) failed to address
Chicketano's testimony, which corroborated Batten's testimony that he did not
refuse to provide a written statement; and (3) failed to consider that the OLR
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exceeded its disciplinary role because Chicketano had already disciplined and
verbally counseled Batten. Batten also argued his suspension was not consistent
with progressive discipline.
The Commission rejected Batten's exceptions and accepted and adopted
the ALJ's initial decision in its entirety, including her credibility determinations.
Regarding Batten's claim that the ALJ improperly questioned and cross-
examined witnesses, the Commission concluded:
the ALJ amply supported her determination that
[Batten] was not credible. . . . Additionally, there is no
substantive evidence to show that the ALJ's actions of
questioning [Batten] and the witnesses prevented [the
ALJ] from acting as a neutral and independent fact
finder during the hearing, or that such behavior
somehow adversely affected the case. Indeed, N.J.A.C.
1:1-14.6(o) permits an ALJ to require any party at any
time to clarify confusion or gaps in the proofs and an
ALJ may question any witness to further develop the
record. [Batten] has not set forth anything in his appeal
which convinces the Commission that the ALJ's
questioning of the witnesses was unreasonable or her
credibility determinations were unreasonable or not
based on the evidence in the record.
In accepting and adopting the penalty, the Commission stated it was
not swayed by [Batten's] attempts to minimize the
situation by claiming that he was trained in various
investigatory techniques and that his job expectations
allowed him to independently conduct investigations.
[Batten] is an experienced [CO] and he should have
known that he was required to obtain authorization
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before conducting an investigation. Without obtaining
permission to conduct an investigation, [Batten's]
actions were highly inappropriate, especially since he
had previous dealings with the alleged suspect. The
fact that [Batten] had prior involvement with the
alleged suspect, was afraid the evidence would be
moved, and his alleged reliance on Chicketano's
instructions, does not mitigate the egregious nature of
his actions. . . . In fact, since he admittedly has nearly
[twenty] years of experience in performing such duties,
[Batten] should have known that he was not supposed
to have engaged in such inappropriate behavior.
The Commission considered Batten's personnel record and lengthy
employment as a CO without any prior major discipline, and concluded:
[Batten's] offenses of inappropriately conducting an
investigation without authorization, failing to notify his
supervisors of the investigation, placing a fake
advertisement on Craigslist, and failing to submit a
report of the incident, is sufficiently egregious to
warrant a [seventy] working day suspension.
Accordingly, the Commission concludes that the
penalty imposed by the [DEP] is neither unduly harsh
nor disproportionate to the offense and there is
sufficient basis to uphold [Batten's] [seventy working
day suspension.
The Commission also rejected Batten's contention that he could not
receive this penalty because Chicketano had disciplined him. The Commission
concluded, "[i]n order to be considered actual discipline, a penalty of at least a
formal written reprimand is required, as that is the lowest form of formal
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discipline contemplated under Civil Service law and rules. See N.J.A.C. 4A:2 -
2.2 and N.J.A.C. 4A:2-3.1."
On appeal, Batten reiterates the arguments made to the ALJ and
Commission. He also adds that the Commission erred in accepting and adopting
the ALJ's initial decision.
Our scope of review of an administrative agency's final determination is
limited. In re Stallworth, 208 N.J. 182, 194 (2011). "[A] 'strong presumption
of reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J.
Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205
(App. Div. 1993)). "In order to reverse an agency's judgment, [we] 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, 208 N.J. at 194 (second alteration in original) (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980)). As our Supreme Court has
instructed:
In determining whether agency action is arbitrary,
capricious, or unreasonable, [we] must examine:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
A-2252-16T2
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the legislative policies 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. (quoting In re Carter, 191 N.J. 474, 482-83
(2007)).]
We "may not substitute [our] own judgment for the agency's, even though
[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at
483). "This is particularly true when the issue under review is directed to the
agency's special 'expertise and superior knowledge of a particular field.'" Id. at
195 (quoting In re Hermann, 192 N.J. 19, 28 (2007)). "Nevertheless, 'we are not
bound by the agency's legal opinions.'" A.B. v. Div. of Med. Assistance &
Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v.
State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)). The burden
of proving that an agency action is arbitrary, capricious, or unreasonable is on
the challenger. Bueno v. Bd. of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011)
(citing McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.
2002)).
We have considered Batten's arguments in light of the record and
applicable legal principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons the Commission expressed in its final agency
A-2252-16T2
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decision. We are satisfied there is sufficient credible evidence in the record as
a whole supporting the Commission's decision, R. 2:11-3(e)(1)(D), and the
decision is not arbitrary, capricious, or unreasonable.
Affirmed.
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