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In re Batiuk

September 28, 2007

IN THE MATTER OF CHAD BATIUK, POLICE OFFICER (S9999D), WOODBRIDGE TOWNSHIP.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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