On appeal from a Final Agency Decision of the New Jersey Transit Police Department, No. NJT-7369-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and LeWinn.
Joseph Colamedici, a police officer with the New Jersey Transit Police Department (NJTPD), appeals from the final agency decision that 1) concluded he violated departmental rules and regulations; and 2) imposed a three-day suspension without pay. We affirm.
The record developed at the departmental hearing below disclosed that on March 14, 2006, Colamedici was served with a memo from his commanding lieutenant, Laura Hester, indicating that he had violated the departmental absenteeism policy by calling out sick on February 1 and 2, bringing his total sick day requests to "four or more . . . within 6 months." The memo further stated:
As prescribed in General Order No. 3.11, I am discussing your absenteeism with you, and also advising you in writing that future absences will be subject to disciplinary action. In addition, a note from a licensed physician must accompany all future sick days. [Emphasis added.]
Colamedici and Hester executed copies of the memo evidencing his receipt on March 16. On April 5 and 12, Colamedici failed to appear for work after calling in to his commanding officer. On May 9, two disciplinary charges were served upon him, each charging him with "insubordination," specifically for failing to provide a physician's note for either absence.*fn1
In his testimony before the departmental hearing officer, Colamedici explained that his absence from work on April 5 was due to his son's medical condition, and he was absent from work on April 12 because his wife was having surgery. He furnished two doctor's notes, which he admittedly obtained after he was served with the disciplinary charge.*fn2
Colamedici claimed that despite the March 14 written order, he believed that he was not required to furnish any physician's notes unless specifically asked to do so. The basis for this belief was past practice of the NJTPD, and a specific discussion he had with Hester after the absences. He claimed that the lieutenant told him that for "[a]ny future illnesses after April 12 . . . [he] would be required to give a doctor's note." Supporting this position, Colamedici produce a written memo from Hester dated April 28. It was essentially a verbatim copy of the earlier March 14 memo, once again advising Colamedici that he had violated the absenteeism policy, that Hester was once again "discussing [his] absenteeism with [him], and . . . that . . . future absences may be subject to disciplinary action." In addition, the memo required Colamedici "to submit satisfactory evidence, a note from a licensed physician as to future illness." This memo was delivered to Colamedici on May 4, and both he and Hester signed copies on that date.
On cross-examination, Colamedici did not deny that he signed the March 14 memo, but claimed he "probably" did not read it and was unaware that it required him to furnish a physician's note for any future absences.
Both sides submitted written summations that are not part of the appellate record. However, in a comprehensive written "Recommended Decision," Deputy Chief of Police Joseph D. Kelly III, the hearing officer, extensively reviewed the testimony and documentary exhibits, and summarized Colamedici's closing arguments. Essentially, Colamedici claimed that the disciplinary charges resulted from a misunderstanding of the March 14 memo, that he did not believe it required him to furnish a physician's note for future absences unless he was specifically asked for one, and that he therefore did not intentionally disobey an order and was not insubordinate as a result. Kelly found that Colamedici was issued a "lawful order in writing by . . . Hester to produce doctors' notes for any sick days taken following March 14, 2006." As a result, Colamedici "knew or should have known his responsibilities as a result of this order . . . and failed to produce doctors' notes as lawfully ordered" for his absences on April 5 and 12. Kelly concluded the charge of insubordination had been "substantiated." Chief of Police Joseph C. Bober reviewed Kelly's findings and conclusions, "concur[red] in totality with" them, and imposed a three-day suspension.
As he did in the departmental hearing, Colamedici argues before us that the charges of insubordination "were based on a complete misunderstanding," and that he "did not think he was disobeying an order." Our review of final agency action, however, is quite limited. In re Carter, 191 N.J. 474, 482 (2007). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). We "'will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)).
Our review of the record convinces us that NJTPD's decision "is supported by sufficient credible evidence on the record as a ...