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In re Batiuk


September 28, 2007


On appeal from a Final Decision of the Merit System Board, 2006-2768 and 2006-4156.

Per curiam.


Argued September 17, 2007

Before Judges Lintner and Graves.

Petitioner, Chad Batiuk, appeals from a final decision of the Merit System Board (Board) denying his appeal of Woodbridge Township's (appointing authority) decision to remove his name from the police officer eligibility list, based upon lack of residency. We affirm.

On May 29, 2002, the Board determined that petitioner, as of February 25, 2000, the closing date for a police officer examination, had established that he lived at 60 East Cliff Road in Colonia, thus qualifying for restoration of his name to the appointing authority's eligibility list for police officer. At the time, the facts established that petitioner was not untruthful or deceptive regarding his residency at the East Cliff Road location (Woodbridge Township).

On December 7, 2004, petitioner appealed the appointing authority's rejection of his candidacy as a police officer based upon a psychological unfitness to perform evaluation. In its December 7 decision, the Board ordered an independent psychological evaluation by Doctor Roger Raftery. Raftery rendered his psychological evaluation and report on February 13, 2005. On May 23, 2005, after reviewing the appointing authority's exceptions and petitioner's cross-exceptions respecting Raftery's report, the Board found that the appointing authority had not met its burden of proof that petitioner was psychologically unfit to perform effectively as a police officer, and ordered his name be restored to the eligibility list, subject to "any disqualification issue ascertained through an updated background check conducted after a conditional offer of appointment."

Following the Board's May 23 decision, the appointing authority required petitioner to fill out an updated application. Petitioner's application listed the 60 East Cliff Road address as his domicile since 1999, but also noted that he was temporarily staying at his aunt's house at 24 Dunlop Drive, Sewaren, pending completion of extensive renovations to the East Cliff Road residence. An investigation carried out in large part by Sergeant Richard George*fn1 of the appointing authority's internal affairs department revealed that the East Cliff Road residence, which is owned by petitioner's father, was uninhabitable and had been so for many years. The investigation also consisted of multiple visits to the Sewaren address in June and July 2005. George reported that because he was unable to locate petitioner's vehicle at the Sewaren address, he went to petitioner's parents' home at 103 Edgar Street in Carteret, where he observed, on eleven occasions in a one-month period, petitioner's vehicle parked on the street.

George also interviewed three neighbors at the Sewaren address who indicated that they did not know anyone fitting petitioner's description living at 24 Dunlop Drive. Finally, George compiled a list of addresses used by petitioner since 1999 and as of June 21, 2005, indicating that he had listed his address at 60 East Cliff Road, the Dunlop Drive address, and his parents' address at 103 Edgar Street in Carteret. The appointing authority removed petitioner's name from the eligibility list, basing its decision on the information compiled by George and its determination that petitioner did not meet the residency requirement.

Petitioner appealed to the Board, contending that (1) the information provided by the appointing authority was false, (2) the Board's 2002 decision concerning his residency was dispositive of the issue, (3) he met the residency requirement as a matter of law because he intended to make the 60 East Cliff Road address his permanent home, i.e., his "domicile," notwithstanding its uninhabitable status, because domicile is the operative legal word.

On February 23, 2006, the Board issued its decision rejecting petitioner's contentions, finding petitioner's "convoluted residency saga to be less than plausible" and that he used the East Cliff Road address to deceive the appointing authority. The Board vacated its May 29, 2002, determination, finding that "the overwhelming preponderance of evidence indicates that he did not continually reside in Woodbridge Township" and he "provided no evidence that he resided with his aunt" in Sewaren, and "in all likelihood, he resides . . . at 103 Edgar Street, Carteret." On June 27, 2006, the Board rejected petitioner's request that it reconsider its decision. In his request, petitioner submitted an affidavit claiming again that his legal domicile since 1999 was at 60 East Cliff Road and he was "temporarily staying" at 24 Dunlop Drive.

On appeal, defendant reprises the same arguments that he asserted before the Board. Initially, we note that N.J.A.C. 4A:4-2.11 provides in pertinent part:

(b) Where residence requirements have been established, residence means a single legal residence. The following standards shall be used in determining legal residence:

1. Whether the locations in question are owned or rented;

2. Whether time actually spent in the claimed residence exceeds that of other locations;

3. Whether the relationship among those persons living in the claimed residence is closer than those with whom the individual lives elsewhere. If an individual claims a parent's residence because of separation from his or her spouse or domestic partner (see section 4 of P.L. 2003, c.246), a court order or other evidence of separation may be requested;

4. Whether, if the residence requirement of the anticipated or actual appointment was eliminated, the individual would be likely to remain in the claimed residence;

5. Whether the residence recorded on a driver's license, motor vehicle registration, or voter registration card and other documents is the same as the claimed legal residence. Post office box numbers shall not be acceptable; and

6. Whether the school district attended by child(ren) living with the individual is the same as the claimed residence.

(c) Unless otherwise specified, residency requirements shall be met by the announced closing date for the examination.

1. When an appointing authority requires residency as of the date of appointment, residency must be continuously maintained from the closing date up to and including the date of appointment. See N.J.A.C. 4A:4-4.7(a)7.

(d) The Department of Personnel will review residence requirements for examination candidates. It is the responsibility of the appointing authority to review and enforce residence requirements relating to appointment and continued employment.

Petitioner's continued reliance on appeal that his legal domicile is in Woodbridge, at what was conceded at oral argument to be an uninhabitable home, is disingenuous. Individuals can only reside in an inhabitable home regardless of their future intent to make a particular location a permanent home. N.J.A.C. 4A:4-2.11(b)2 makes it clear that residency means the residence, i.e., home where an applicant's "time actually spent . . . exceeds that of other locations," regardless of one's future intent.

Equally without merit is petitioner's contention that the Board's 2002 decision is res judicata on the issue of residency. To qualify, an applicant's residency "must be continuously maintained from the closing date [of the examination] up to and including the date of appointment." N.J.A.C. 4A:4-2.11(c)1. Thus, it matters not what petitioner's residency was in 2002.

It is only his current residency that is relevant. The Board's May 23, 2005, decision correctly made eligibility contingent on an updated investigation, which would naturally include continued residency within the township.

Lastly, we address petitioner's argument, raised for the first time on appeal, that the matter should be remanded to the Office of Administrative Law (OAL) for a full hearing as a contested case. "Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include when "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). Although petitioner's contention does not fall within one of the exceptions, we nevertheless address it substantively.

Petitioner argues that, because the case was decided on a written record, the Board had no opportunity to evaluate the credibility of witnesses. However, under N.J.A.C. 4A:4-2.11(f), the burden of proving an individual's residency is on the applicant who is required to utilize the procedures contained in N.J.A.C. 4A:4-6.6. N.J.A.C. 4A:4-6.6(d) provides that appeals to the Board, such as the one under consideration here, shall be "on the written record or such other proceeding as the Board deems appropriate."

A contested administrative case is commenced in the state agency with appropriate subject matter jurisdiction. N.J.A.C. 1:1-3.1. After an agency proceeding has begun, the agency head must "determine whether the matter is a contested case."

N.J.A.C. 1:1-4.1(a). The OAL "acquire[s] jurisdiction over a matter only after it has been determined to be a contested case by an agency head." N.J.A.C. 1:1-3.2(a). A case is contested if it is a proceeding . . . in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing. [N.J.S.A. 52:14B-2(b).]

However, not every factual dispute need be referred to the OAL as a contested case. "'The right to a full trial-type hearing in administrative proceedings is generally limited to the situation where adjudicatory facts -- that is, facts pertaining to a particular party -- are in issue.'" High Horizons Dev. Co. v. State of N.J., Dep't of Transp., 120 N.J. 40, 49 (1990) (quoting Friedman, Judicial Review Under the Superfund Amendments, 14 Colum. J. Envtl. L. 187, 201 (1989)). "[I]t is the presence of disputed adjudicative facts, not the vital interests at stake, that requires the protection of formal trial procedure." Id. at 53. "The mere existence of disputed facts is not conclusive. An agency must grant a plenary hearing only if material disputed adjudicative facts exist." Frank v. Ivy Club, 120 N.J. 73, 98 (1990), cert. denied, 498 U.S. 1073, 111 S.Ct. 799, 112 L.Ed. 2d 860 (1991). "[B]ald allegations or naked conclusions . . . are insufficient to require an agency head to transmit the matter to OAL as a contested case." J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 525 (App. Div. 2000).

Although petitioner has always maintained that he "stays temporarily" at his aunt's house in the Township, conspicuously absent from petitioner's submission to the Board is an expressed denial that he spends a significant time living at his parents' house in Carteret, which would render him ineligible under N.J.A.C. 4A:4-2.11(b). Moreover, petitioner's use of the word "stay" to describe his status as a temporary occupant at his aunt's house does not convey the idea that he makes that location his current residential home. In our view, petitioner's failure to present a material disputed adjudicative fact renders his belated demand for a hearing before the OAL nugatory. Simply stated, had he made the same request to the Board, it would have been rejected. We are satisfied from our review of the entire record that there is sufficient credible evidence to support the Board's conclusions. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).


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