                            NOT FOR PUBLICATION WITHOUT THE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);


                                                                         A-2252-16T2
                                       2
            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.
                                                                        A-2252-16T2
                                       3
            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

                                                                          A-2252-16T2
                                         4
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.
                                                                         A-2252-16T2
                                           5
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.




                                                                         A-2252-16T2
                                       6
      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


                                                                         A-2252-16T2
                                       7
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


                                                                           A-2252-16T2
                                        8
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.


                                                                          A-2252-16T2
                                        9
      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


                                                                           A-2252-16T2
                                       10
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


                                                                             A-2252-16T2
                                        11
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


                                                                        A-2252-16T2
                                         12
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

                                                                             A-2252-16T2
                                        13
            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



                                                                          A-2252-16T2
                                       14
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
                                        15
            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
                                       16
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.




                                                                         A-2252-16T2
                                       17
