IN THE MATTER OF J.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6849-03T26849-03T2

IN THE MATTER OF

J.D.

_______________________________________

 
Telephonically argued November 15, 2005 - Decided

Before Judges Alley and Yannotti.

On appeal from New Jersey Department of Personnel, Merit System Board, Docket No. DOP 2002-970.

Robert J. Merryman argued the cause for appellant Township of Brick (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Merryman, of counsel and on the brief).

Sidney H. Lehmann argued the cause for respondent/cross-appellant, J.D. (Szaferman, Lakind, Blumstein, Blader & Lehmann, attorneys; Mr. Lehmann and Michael D. Brottman, on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent Merit System Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

The Township of Brick (Township) appeals from a final determination of the Merit System Board, restoring J.D. to the list of candidates eligible for appointment as a police officer. J.D. cross-appeals from the Board's denial of his application for back pay and for attorneys' fees. We reverse the Board's decision restoring J.D. to the list of eligible candidates, remand the matter for reconsideration and dismiss J.D.'s cross-appeal as moot.

In October 2000, J.D. passed the law enforcement open competitive examination for police officer and in April 2001, he was placed on the list of eligible candidates. J.D. applied for a position as police officer in the Township in 2001. He successfully completed the background investigation. He was interviewed by the Township police department and offered employment, conditioned upon the successful completion of a psychological evaluation.

Irving B. Guller, Ph.D., a licensed psychologist, performed the evaluation. In his report dated July 30, 2001, Guller stated that he met with J.D. and administered eleven tests. Guller detailed the test results. He stated that J.D.'s score on the Shipley Institute of Living Scale showed that he is of average intelligence. The Public Safety Writing Sample assessed his practical judgment and ability to write English. Guller said that J.D.'s writing ability was average and his judgment was good. J.D. scored "fair but inclined to firmness" on the Police Opinion Survey, which measures the subject's attitudes toward law enforcement.

On the Candidate and Officer Personnel Survey (COPS), J.D. scored relatively high in the "lie" category, which Guller stated showed a desire to present a favorable image. J.D. scored below average in motivation and "quite low" in self discipline. Guller wrote that J.D.'s scores in these categories could suggest a resentment against supervisors. J.D.'s score in impulsivity was in the normal range. The test did not reveal any special problem with alcohol and Guller found little evidence of gender bias. Because of his elevated "lie" score, Guller noted a concern about J.D.'s honesty and integrity. Guller concluded that J.D. had a poor probability of succeeding as a police officer.

Guller also commented on the results of the Edwards Personal Preference Schedule, which is a survey of job relevant attitudes and traits. J.D. showed a greater than average willingness to accept responsibility. Guller said that J.D. would be slow to integrate into a new team and may tend to remain aloof from colleagues. In addition, J.D. scored high in introspection. According to Guller, J.D. showed an ability to tolerate routine or tedious work and a "practical, and not particularly benevolent, attitude towards getting jobs done."

Guller also summarized the relevant findings from his interview with J.D.. Guller wrote that J.D.'s father died when he was sixteen years old. His father was an alcoholic who was verbally abusive to his mother. When J.D. was nine, his parents separated but he remained close with his father. Guller stated that J.D. began to develop a variety of psychological symptoms. He was sent to a psychiatrist when he was fifteen years of age. J.D. was suffering from "stomach problems, an inability to leave the house, depression, moodiness and panic attacks." Initially, he did not want to go for treatment. J.D. said that he told his mother he could not leave the house because he did not want to go for treatment. Guller said that J.D. did not leave the house for an extended period of time.

J.D. saw his first therapist for several months. He then began to see Dr. Richard DeWorsop, a psychiatrist. J.D. told Guller that, at the time, he was very upset about his father, who was an alcoholic and would not stop drinking. It appears that, a few months after he began to treat with DeWorsop, J.D.'s father was killed in an automobile accident. J.D. became depressed and Dr. DeWorsop's diagnosed J.D. as suffering from "major depression." He prescribed Prozac and Xanax. It appears that J.D. also showed evidence of an obsessive compulsive personality disorder. J.D. was tutored at home during his entire sophomore year in high school because he claimed he could not go out. J.D. continued to treat with DeWorsop until January 1998.

Guller administered the Rorschach psycho-diagnostic exam. According to Guller, J.D.'s responses revealed anxiety, preoccupation and obsessive-compulsive characteristics. J.D. also showed poor underlying self-image. Guller said that J.D. is "basically a good person" and he believed "that he may be reasonably given consideration at a later date." However, Guller found that the emotional problems that J.D. manifested, along with the residuals found in his behavior and the test results, provided "sufficient grounds to recommend against him at the present time." Guller said he might be considered for appointment "in a couple of years providing that his social adjustment has continued to be good."

The Township informed J.D. that it had requested the Department of Personnel to remove his name from the list of eligible candidates because he "failed the psychological examination." The Township provided J.D. with a copy of Guller's report. On August 30, 2001, J.D. filed an appeal with the Board.

In support of his appeal, J.D. presented a report dated December 26, 2001 from James J. Ferretti, M.D., P.A. Ferretti interviewed J.D. and reviewed Guller's report, including the raw data. Ferretti also received letters of reference from a professor at Ocean County College, where J.D. was a student, as well as a former employer. Ferretti criticized Guller's findings. He disputed Guller's statement that J.D. was poorly motivated. Ferretti noted that Guller's finding was inconsistent with the references he had received. In addition, Ferretti said that Guller was engaging in speculation when he mentioned that J.D. possibly exhibited immaturity. Ferretti asserted that the speculation was not warranted. Ferretti additionally commented that Guller had speculated about J.D.'s possible resentment towards authority and difficulty in making decisions.

In his report, Ferretti also discussed his interview with J.D. Ferretti wrote that J.D. did not present any evidence of psychosomatic disorder. J.D. reported no history of panic attacks or agoraphobia. "The patient," he said, "is free of evidence of psychotic decompensation." There was no evidence consistent with a diagnosis of schizophrenia, manic depressive disorder or cognitive disorder. There were no symptoms of paranoia. J.D. was neatly dressed and appropriately groomed when he met Ferretti. He did not present with any gross physical irregularity. J.D. denied any history of suicidal ideation.

Ferretti added that J.D. had denied any psychiatric symptomatology of note. He denied sleep disturbances. He denied panic attacks, anxiety, psychosomatic disorder and he seemed to Ferretti to be devoid of any symptoms of obsessive compulsive disorder. J.D. said that he had never been hospitalized. He denied a history of hypertension, coronary artery disease or any chronic physical disorder.

Ferretti's diagnosis included findings that J.D. did not suffer from any significant psychopathology. He commented as follows:

It would appear to me that Dr. Guller, other than the speculations he has permitted himself, has relied on the COPS examination in offering his conclusion that the patient is suffering an obsessive-compulsive disorder. [J.D.] exhibits none of the symptoms traditionally associated with obsessive-compulsive personality disorder.

He has maintained a good credit history indicating responsibility and maturity. He has maintained a good occupational record and has pursued higher education in criminal justice, which is his chosen field. It is my categorical recommendation that [J.D.] be [placed again] on the list for eligible candidates for the position of Urban Police Officer since he exhibits no psychopathology or symptomatology which would indicate that he would function at less than an optimal level in this field.

I also note that [J.D.] was questioned regarding examples of police activity [and] he was able to respond with practicality and good judgment. He exhibits no stereotyping ideation nor does he present any evidence of ethnic or racial bias.

Guller responded to Ferretti's report in a memo dated May 28, 2002. He stated that Ferretti had ignored the fact that J.D. had received psychological treatment for several months before his father's death and wrongly implied that J.D. only sought treatment after his father died. Guller stated that his clinical interview with J.D. provided the "critical" information that led to his recommendation. Moreover, Guller wrote that Ferretti's statement that J.D. did not have any history of panic attacks or agoraphobia was in direct contradiction to the information obtained from J.D.. Guller stated that "presumably" Ferretti had not reviewed DeWorsop's treatment records.

Counsel for the Township wrote to the Board on July 3, 2002 and provided the Board with a copy of DeWorsop's records. He noted in his letter that DeWorsop's records were not the basis for the finding that J.D. was not fit for the position of police officer. He added that the records were pertinent to the extent that Ferretti "chose to completely ignore references to the diagnosis of Dr. DeWorsop and, in fact, set forth contradictory conclusions about [J.D.'s] medical background."

The Medical Review Panel (Panel) considered the matter and provided a report to the Board on October 18, 2002. The Panel reviewed Guller's report, Ferretti's report and Guller's rebuttal. The Panel concluded:

The evaluators on behalf of the hiring authority recommended that the candidate's name not be restored to the eligible list, while the evaluator on his behalf limited his conclusion to ruling out mental illness. The negative recommendation found support in indications of gender bias, likelihood of aggressive behavior, questionable judgment, and psychological fragility. The test results and procedures and the behavioral record, when viewed in light of the Job Specification for Correction Officer Recruit, indicate that the applicant is mentally unfit to perform effectively the duties of the position sought, and therefore, the action of the hiring authority should be upheld.

The Board issued a decision on October 21, 2003. The Board reviewed the reports and the Panel's recommendation. The Board noted that, although the Panel referred to the job duties of a "Correction Officer Recruit," this was most likely a typographical error since references to "Police Officer" appear throughout the Panel's report. The Board found that questions remained unanswered concerning J.D.'s ability to perform effectively the duties of a police officer. The Board determined that J.D. should be given an independent psychological evaluation. The Board stated:

In particular, the Board notes that Dr. Guller concluded that [J.D.] was not suitable "at this time," implying that he may be suitable at some time in the future, and the Board has questions about whether a bout with depression at age 15, the result of the death of his father in an alcohol related automobile accident, precludes him from successfully performing the duties of a Police Officer at the present time.

The Board ordered that J.D. be administered a psycholgical evaluation and assessed cost of the exam ($530) against the Township.

The examination was performed by psychologist Roger T. Raftery, Ph.D. Raftery stated in a report dated February 19, 2004 that Guller had performed his evaluation "using standardized tests and tests that have not been validated." Raftery wrote that Guller did not utilize any objective personality tests while disqualifying J.D. primarily because of emotional reasons and a past history of having psychiatric treatment. Ferretti, on the other hand, had not administered any psychological tests. Raftery said that his evaluation was based upon his clinical interview with J.D., the MMPI-2 (Law Enforcement Report), the GAMA (General Ability Measure for Adults), and a review of certain documents, specifically Guller's July 10, 2001 report, Guller's raw data, Ferretti's report and a letter from J.D.'s attorney dated April 30, 2002, with attachments.

Raftery set forth his findings. J.D. had produced a score on the GAMA which showed high average range of intelligence. J.D. approached the MMPI-2 in a "somewhat defensive manner." His profile was valid and one usually associated with "good mental health" but Raftery noted that persons who produce similar profiles are "described as intolerant, insensitive, crude action oriented with a narrow interest range, i.e. hypermasculine."

Raftery further stated that J.D. showed no "obvious signs of psychopathology." But the history was "remarkable." J.D. explained that his father had been an alcoholic. His parents separated when he was eleven years old. At age fifteen, his father became physically ill with alcoholism. He passed away several months latter from a coronary. Raftery noted that J.D. had been referred to DeWorsop and placed on Paxil. But Raftery stated that there were no records of his treatment. Presumably, he wrote, the records had been shredded. Raftery concluded that he

did not find any compelling reasons to psychologically disqualify this candidate. The objective test results are clean while his history of having been treated psychiatrically at age fifteen does not . . . preclude him from employment in law enforcement.

Raftery added that he did not see any signs of excessive anxiety or of psychological fragility. He recommended restoring J.D.'s eligibility for the position of police officer.

Guller responded in a letter dated March 30, 2004. He stated that the results on the GAMA test administered by Raftery were consistent with the results of the test he had administered. Guller stated that the MMPI-2 test was commonly used but had a "relatively poor record" of predicting the ability to perform. Guller said that he had reviewed the results of the MMPI-2 and those results did not reflect the fact that J.D. previously had been diagnosed with obsessive compulsive disorder, as well as a history of panic attacks and major depression. Guller asserted that Raftery did not mention these diagnoses. Guller also wrote that Raftery implied that Guller had recommended against J.D.'s appointment because of his unfortunate family history. He asserted that this was not true. Guller said that his recommendation was based on J.D.'s emotional fragility and the fact that, in his opinion, J.D. was vulnerable to the stresses of police work.

Guller also disputed Raftery's assertion that he had administered a combination of standardized tests and tests that were not validated. He stated that all of these tests, other than the Rorschach, had been "repeatedly researched for their predictive validity and reliability...." Guller additionally disputed Raftery's statement that there were no records of J.D.'s psychiatric treatment. Guller had the records and they had been provided to the Board.

The Board issued its final decision on June 29, 2004. The Board concluded that the Township had not met its burden of showing that J.D. was psychologically unfit to perform effectively the duties of police officer. The Board accepted and adopted the findings and conclusions in Raftery's report. The Board stated that J.D.'s treatment when he was an adolescent "appears to have been successful." J.D. has successfully held a position with the municipal utilities authority and there was no evidence of anti-social behavior or adverse interactions with either the juvenile or adult criminal justice systems. The Board noted that Guller had stated that J.D. might be a suitable candidate in "a couple of years." The Board stated, "A couple of years has passed and Dr. Raftery concluded that [J.D.] should be restored to the eligible list." The Board therefore found no compelling reason to deny J.D. the opportunity to serve the Township as a police officer.

The Board ordered that, upon his successful completion of a working test period, J.D. should be granted a retroactive date of appointment to the date he would have been appointed if he had not been removed from the eligibility list. However, that date was for salary step placement only. The Board denied any other relief, such as back pay or counsel fees.

On November 9, 2004, the Board filed a decision denying the Township's motion for a stay pending appeal and ordered J.D.'s immediate appointment. The Board imposed monetary penalties in the event that the Township failed to make a good faith effort to comply with the Board's directive. By order filed November 19, 2004, we stayed the Board's order requiring J.D.'s immediate appointment and the imposition of monetary sanctions.

On this appeal, the Township argues: 1) the Board improperly rejected the conclusions of its own Medical Review Panel of independent experts without any factual or legal basis; 2) the Board erred in ordering an independent psychological examination and ordering the Township to pay for the evaluation; and 3) the Board erred in reversing the Township's decision and that of the Panel based solely on Raftery's report which was based on inaccurate and flawed information. In his cross-appeal, J.D. argues that the Board erred in refusing to award J.D. back pay and attorneys' fees.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996). The judiciary can intervene only in "rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy." Ibid. We must affirm a decision of an administrative agency unless the determination is arbitrary, capricious, unsupported by substantial credible evidence in the record, or contrary to express or implied legislative policies. In re Juvenile Detention Officer, 364 N.J. Super. 608, 614 (App. Div. 2003).

There is a presumption that the agency's actions are reasonable and the party challenging the decision has the burden of proving otherwise. DiMattia v. New Jersey Merit System Bd., 325 N.J. Super. 368, 375 (App. Div. 1999). If substantial credible evidence supports an agency's finding of fact, we may not substitute our judgment for that of the agency even if we might have reached a different conclusion. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). Moreover, we "must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

We recognize that these well-established principles of appellate review ordinarily require that we defer to the Board in matters involving an assessment of candidates for positions in the civil service. However, we are convinced that the Board's determination should be reversed and the matter remanded to the Board for reconsideration. It is clear from the Board's final determination that it relied exclusively on Raftery's report in concluding that the Township failed to carry its burden of showing that J.D. was not psychologically fit to serve as a police officer. However, Raftery's report is fundamentally flawed and the Board's reliance on that report as the sole basis for its decision was not warranted.

Indeed, the record makes clear that one of the principal reasons for the Township's decision to remove J.D. from the eligibility list was his prior history of psychological problems. Guller noted in his reports that J.D. began to experience these problems when he was fifteen years old. He started treatment with a psychiatrist and then began treating with DeWorsop in December 1996. Treatment continued until January 1998. DeWorsop diagnosed J.D. with major depression, panic disorder, and obsessive compulsive disorder. Guller's opinion that J.D. was not psychologically fit to serve as a police officer was based in part upon "residuals" in his behaviors as shown by the results of the psychological testing. Clearly, this was the basis upon which the Panel found J.D. mentally unfit to serve.

Raftery's report contains significant factual errors that bear directly upon J.D.'s past treatment. For example, Raftery stated that J.D. was treated at age fifteen but the record shows that J.D. began treating at age fifteen and treatment continued from December 1996 to January 1998. Raftery seems to suggest that J.D.'s treatment was related solely to the death of his father. However, J.D.'s treatment began several months before his father died. Raftery does not mention that DeWorsop diagnosed J.D. with major depression, panic disorder and obsessive compulsive personality. In addition, Raftery asserts that there were no records of J.D.'s treatment. He suggests that the records were shredded and yet the record plainly reflects that DeWorsop's records were available. We are convinced that in this matter a thorough and complete independent evaluation could not have been made without consideration of the treatment records.

Raftery's report raises other concerns. In reaching his opinion that J.D. is mentally fit to serve as a police officer, Raftery relied upon his interview with J.D., as well as the results of an intelligence test and the MMPI-2. The results of the MMPI-2 tests do not reflect DeWorsop's diagnoses. Moreover, Raftery notes that J.D. approached the test in a "defensive manner." Raftery does not, however, explain whether J.D.'s manner would affect the results. Furthermore, Raftery comments that Guller did not use any objective personality tests and used tests that have not been validated. However, Guller insists that his tests have, in fact, been validated. We note in this regard that Guller appears to have employed a wider range of tests and the results of those tests were sufficient to persuade the members of the Panel to find that J.D. was not fit to serve as a police officer.

We are convinced that Raftery should be given an opportunity to clarify and better explain his findings. He should consider DeWorsop's treatment records. He should ensure that he has obtained from J.D. a complete history of his prior psychiatric problems and treatment. Raftery should specifically address Guller's findings that J.D. continues to exhibit residual behaviors that relate back to his prior psychiatric problems. Moreover, Raftery should detail the basis for his statement that Guller's tests were not objective or not validated. Raftery also should address Guller's comment that the results of Raftery's MMPI-2 test may be indicative of a person with a form of emotional difficulty.

The Township also argues on this appeal that the Board erred in ordering it to bear the cost of J.D.'s independent evaluation. We disagree. The Board may assess costs against a party "when the inadequacy of a professional report necessitates an independent professional evaluation...." N.J.A.C. 4A:4-6.5(g)(5). When the Board made its decision to order the evaluation, it was faced with reports from Guller and Ferretti, which reached different conclusions. In the circumstances, the Board reasonably found that Guller's report did not provide an adequate basis for its decision. In our view, the Board did not abuse its discretion in ordering the Township to bear the cost of the independent evaluation.

In light of our decision to reverse the Board's decision and remand the matter for reconsideration, the issues raised by J.D. in his cross-appeal are moot. The cross-appeal will therefore be dismissed.

We accordingly reverse the Board's decision reinstating J.D. to the list of eligible candidates and we remand the matter to the Board for reconsideration. The Board is directed to refer the matter again to Dr. Raftery so that he may clarify and amplify his findings. The Township would, of course, be permitted to respond to the supplemental report.

 
Reversed and remanded on the appeal; cross-appeal dismissed.

(continued)

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A-6849-03T2

December 6, 2005