Opinion
DOCKET NO. A-4246-13T3
03-24-2016
IN THE MATTER OF A.D., POLICE OFFICER (S9999M), PLAINFIELD.
Fusco & Macaluso Partners, L.L.C., attorneys for appellant A.D. (Amie E. DiCola, on the brief). Ruderman, Horn & Esmerado, P.C., attorneys for respondent City of Plainfield (Littie E. Rau, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Civil Service Commission, Docket No. 2013-1213. Fusco & Macaluso Partners, L.L.C., attorneys for appellant A.D. (Amie E. DiCola, on the brief). Ruderman, Horn & Esmerado, P.C., attorneys for respondent City of Plainfield (Littie E. Rau, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
A.D. appeals from a final decision of the Civil Service Commission (Commission) ordering that her name be removed from the list of eligible candidates for the position of police officer (the eligibility list) in the City of Plainfield (Plainfield). We affirm.
We employ initials to protect A.D.'s privacy.
I.
We glean the following facts and procedural history from the record. Effective June 6, 2011, the Commission deemed that A.D. was eligible for a law enforcement position. In January and May 2012, Plainfield certified that A.D. was eligible for a potential position as a police officer.
The Plainfield Police Department referred A.D. for a pre-employment psychological examination, which was conducted on July 16, 2012, by Dr. Lewis Schlosser. Following his examination, Schlosser issued a report stating in pertinent part that A.D. "does not possess the psychological characteristics deemed necessary to perform the duties of [a police officer] and is not considered to be psychologically suited [for] that position . . . ." By notice dated October 22, 2012, the Commission advised A.D. that her name was removed from the eligibility list because she did not meet the psychological standards for the position.
In November 2012, A.D. appealed the decision to remove her name from the eligibility list, and the Commission submitted the appeal to the Medical Review Panel (Panel). N.J.A.C. 4A:6.5(g). In support of her appeal, A.D. submitted a report from Dr. Alberto M. Goldwaser, a psychiatrist she hired to perform an examination. Goldwaser disputed Schlosser's conclusions and found A.D. did not suffer from any psychiatric condition and was "fit to fulfill the duties of a [p]olice [o]fficer."
On April 26, 2013, the Panel heard A.D.'s appeal. A.D. attended the hearing with counsel, and Schlosser appeared on behalf of Plainfield. On May 3, 2013, the Panel issued its report finding that A.D. was "not mentally unfit to perform effectively the duties of the position sought" and recommending that A.D. "be restored to the candidate eligibility list."
On June 13, 2013, Plainfield filed exceptions to the Panel's report and submitted various exhibits, including a supplemental report from Schlosser rebutting Goldwaser's evaluation. In a June 18, 2013 letter, A.D.'s counsel submitted a written response to Plainfield's exceptions.
In a December 5, 2013 decision, the Commission noted discrepancies in the conclusions reached by Schlosser and Goldwaser, concerns over the accuracy of information provided by A.D. to the Panel, A.D.'s failure to disclose to the Panel information regarding two motor vehicle violations, and conflicts between A.D.'s versions of events, and determined it was necessary to refer A.D. for an independent psychological evaluation as authorized by N.J.A.C. 4A:4-6.5(g)(4). The Commission directed that the evaluation should assess "areas of concern regarding [A.D.'s] overall credibility and suitability for employment as a [p]olice [o]fficer as raised by Dr. Schlosser and the Commission." The Commission referred A.D. to Dr. Robert Kanen for the evaluation.
On January 3, 2014, Kanen interviewed A.D. and conducted a series of psychological tests. During the interview, A.D. pointed out that Kanen had previously interviewed her for a position with the Union County Department of Corrections (Union County). Upon learning this information, Kanen recalled the previous interview and reminded A.D. that he did not find her suitable for the position. Kanen reported to the Commission that he had previously interviewed A.D. for a different position, and was advised he should complete his evaluation and submit his report.
According to Kanen, A.D. had alerted her attorney to his previous interview of her, but neglected to mention this until the middle of the January 3, 2014 interview. --------
Based on his examination, Kanen concluded that A.D. did not suffer from a mental illness but had a borderline IQ and was "very immature with great potential for poor judgment." He opined that A.D. "lacks the necessary judgment, maturity, and cognitive ability to work as a [p]olice [o]fficer" and that she is "psychologically unsuitable for employment as a [p]olice [o]fficer and is not recommended." A.D.'s counsel filed exceptions to Kanen's findings and conclusions.
On April 24, 2014, the Commission rendered its final decision. The Commission noted that the Class Specification for Police Officer detailed the job duties of the position and the "knowledge, skills and abilities needed to perform the job." Police officers must have the ability to follow rules, find practical ways of dealing with a problem, effectively use services and equipment, put up with abuse from a person or group, and lead and take charge of situations. The Commission found that police officers are responsible for the lives of others, are entrusted with lethal weapons, and are in daily contact with the public.
After considering the entire record and adopting Kanen's findings and recommendation, the Commission concluded that A.D. was "psychologically unfit to perform effectively the duties of a [p]olice [o]fficer," and directed that her name be removed from the eligibility list. This appeal followed.
II.
Our role in reviewing the Commission's decision 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.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). We "may not substitute [our] own judgment for the agency's, even though [we] might have reached a different result." Stallworth, supra, 208 N.J. at 194 (quoting In Re Carter, 191 N.J. 474, 483 (2007)). "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 Herrmann, 192 N.J. 19, 28 (2007)).
"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.'" Id. at 194 (second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). To determine whether an 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 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 Carter, supra, 191 N.J. at 482-83).]The findings of fact made by an administrative agency are binding on appeal if they are supported by "sufficient credible evidence." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We are not however bound by the agency's legal conclusions, which we review de novo. A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.), certif. denied, 200 N.J. 210 (2009).
Civil service appointments must be made "according to merit and fitness." N.J. Const. art. VII, § 1, ¶ 2. The Commission has broad authority to adopt rules and regulations to implement this mandate. N.J.S.A. 11A:2-1, -6. To ensure that appointments are made on merit and fitness, the Commission has adopted regulations that permit the removal of a name from an eligible list when the candidate is not qualified for appointment. N.J.A.C. 4A:4-4.7, -6.1. A candidate's name may be removed from an eligible list if he or she is found to be psychologically unfit to perform effectively the duties of the title. N.J.A.C. 4A:4-6.1(a)(3). In order to remove a name from an eligible list, the appointing authority must prove that the candidate is psychologically unfit for the job. N.J.A.C. 4A:4-6.3(b); In re Vey, 124 N.J. 534, 540 (1991).
Applying these principles here, we are satisfied there is sufficient credible evidence in the record to support the Commission's finding that A.D. was psychologically unfit to perform the duties of a police officer. The Commission's decision to obtain an independent professional evaluation of A.D. after receiving the Panel's report and recommendation was authorized by N.J.A.C. 4A:4-6.5(g)(4) and supported by evidence that A.D. provided conflicting and incomplete information to Schlosser, Goldwaser, and the Panel regarding her work history, motor vehicle violations, and education. Based upon the evidence supporting the Commission's concerns regarding A.D.'s "overall credibility and suitability" for the position, we find nothing arbitrary, capricious, or unreasonable in its decision directing that A.D. undergo an evaluation by Kanen.
We are also convinced that Kanen's evaluation and findings provided sufficient credible evidence supporting the Commission's decision to remove A.D. from the eligibility list. Based upon the tests administered by Kanen, he found that A.D.'s "estimated full scale IQ of 78 place[d] her in the borderline range of intelligence" and that she is "functioning above 7% of the general population and below 93%." A.D. advised Kanen that she received decent grades in high school but graduated 300th out of 304 students and spent her senior year retaking classes that she had failed in previous years.
Kanen administered psychological tests and conducted a clinical and mental status examination of A.D. She tested in the ninth percentile for attention and concentration spans and in the ninth percentile in her fund of information about the world around her. Kanen acknowledged that A.D. was performing well in college, but concluded that her "cognitive deficits raise[d] serious concerns about her ability to understand the world around her and adequately respond to fast moving and complex situations while under stress." Kanen concluded that A.D. was "very immature with great potential for poor judgment" and that she "lack[ed] the necessary judgment, maturity, and cognitive ability to work as a [p]olice [o]fficer."
In its decision, the Commission accepted Kanen's findings and considered the requirements of the position as defined in the Class Specification for Police Officer. We find nothing arbitrary, capricious, or unreasonable in the Commission's analysis and determination that A.D.'s psychological traits and cognitive abilities rendered her unsuitable to perform the extensive and serious duties of a police officer. See generally, Vey, supra, 272 N.J. Super. at 205 (upholding the Commission's removal of a name from an eligible list where the Commission adopted a Panel's finding that "correlated adequately the disqualifying 'personality traits' with the job standards and functions" (quoting Vey, supra, 124 N.J. at 544)).
We find no merit in A.D.'s contention that the Commission could not properly rely upon Kanen's findings because he had previously examined A.D. in connection with an application for a different position and found her unsuitable for that position. Kanen did not recall that he had previously evaluated A.D. until she pointed it out midway through his evaluation. Kanen, however, then utilized their prior interaction as a basis to assess A.D.'s insight and maturity for the purpose of determining whether she was psychologically qualified for the position of police officer.
Kanen reminded A.D. that when she was interviewed by internal affairs officers at her home for the Union County position, she answered the door with a parrot on her shoulder and left the parrot perched on her shoulder during the entire interview. Kanen discussed the incident with A.D. during the January 3, 2014 evaluation and found that A.D. did not understand that her conduct had been immature and inappropriate, and that she attempted to rationalize her actions by stating that it was not a big parrot.
We are not persuaded that it was improper for Kanen to consider his knowledge of A.D.'s prior conduct as a source of information upon which he based in part his assessment of her psychological fitness for the position of police officer. See, e.g., N.J.R.E. 703 (expert witnesses are permitted to base their opinions upon "facts or data" that are "of a type reasonably relied upon by experts" in their field); State v. Eatman, 340 N.J. Super. 295, 301-02 (App. Div.) (finding that a psychiatric expert's opinion on defendant's mental state could properly be based on the defendant's prior history of violence), certif. denied, 170 N.J. 85 (2001); State v. Farthing, 331 N.J. Super. 58, 77-78 (App. Div.) (finding expert witness in psychiatry properly based an opinion regarding a defendant's mental state upon defendant's prior statements), certif. denied, 165 N.J. 530 (2000).
A.D. and her attorney were aware that Kanen had previously evaluated A.D. but did not object to his examination of A.D. until after his conclusions were disclosed. Moreover, Kanen's prior evaluation of A.D. was for a different position and required a different assessment of A.D.'s suitability. In addition, Kanen performed separate objective testing and the record supports his findings and conclusions. We therefore are not convinced that Kanen's previous determination that A.D. was unsuitable for a different position disqualified him from rendering an independent evaluation here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION