IN THE MATTER OF NATHANIEL JOHNSON, III, CORRECTION OFFICER RECRUIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2517-04T12517-04T1

IN THE MATTER OF NATHANIEL

JOHNSON, III, CORRECTION OFFICER

RECRUIT (S9999D), DEPARTMENT OF

CORRECTIONS.

_______________________________________

 

Argued January 17, 2006 - Decided January 30, 2006

Before Judges Parker and Yannotti.

On appeal from a Final Agency Decision of the Merit System Board.

Stephen Schnitzer argued the cause for Nathaniel Johnson, III.

George N. Cohen, Deputy Attorney General, argued the cause for the Merit System Board (Peter C. Harvey, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).

PER CURIAM

Nathaniel Johnson, III (Johnson) appeals from a final determination of the Merit System Board (Board) dated December 7, 2004, which affirmed the rejection by the Department of Corrections (Department) of Johnson's application for a position as correction officer recruit and the removal of his name from the list of persons eligible for that position on the basis of psychological unfitness. We affirm.

We briefly summarize the relevant facts. By letter dated June 24, 2002, the Department informed Johnson that his name was being removed from the open competitive list for correction officer recruit because he was found to be psychologically unsuitable for the position. The Department had previously referred Johnson to Elissa Miller, a licensed psychologist, for an evaluation. In a report dated May 30, 2002, Miller concluded that Johnson was psychologically unfit for the position. She summarized her reasons for recommending against Johnson's employment:

[Johnson] currently suffers from a major mental illness, bipolar disorder. He is currently taking mood stabilizing medication. Individuals who suffer from bipolar disorder sometimes have difficulty coping with stressful situations. They also are at increased risk for impulsivity. In addition to suffering from his major mental illness, [Johnson] also has a criminal history. He was arrested recently for soliciting a prostitute. This calls his judgment into question, as well as his impulsive characteristics. When asked to describe this event, he denied and minimized the event. He stated that he was not involved in it and he should not have been arrested. Finally, [Johnson's] socialization skills are of concern. He tends to remain uninvolved with other people and acknowledged a lack of trust of others in his environment. This raises questions about his ability to interact not only with his co-workers, but to have the requisite social skills to deal with issues that may occur with inmates and administration in a prison setting.

Johnson disputed these findings and submitted a report dated June 30, 2003, by his treating psychiatrist, Robert Moreines, M.D., P.A., who opined that Johnson was fit to serve as a correction officer and his mental illness history was not incapacitating. Moreines wrote that Johnson's career had not been "negatively impacted" by his medication. Moreines stated that he was not aware of Johnson's criminal history but he said that "some episodic adventures" appeared to him to be "disorderly in nature" and "experimentation with marijuana or a flirtatious event with prostitutes" is "not inconsistent" with youthful development. Moreines further stated that he was not concerned about Johnson's socialization skills which appeared "to be at least equivalent to those of the mass society if not better enhanced."

Johnson also submitted a report by Ronald G. Silikovitz, Ph.D., who conducted a psychological evaluation of Johnson. Silikovitz stated that Miller's report was faulty and unreliable. Silikovitz noted that Miller only held a temporary permit to practice in New Jersey and, according to Silikovitz, she was not allowed to undertake any type of psychological examination in New Jersey without the supervision of a licensed psychologist. Furthermore, Silikovitz stated that Miller relied too heavily on the results of certain tests, contradicted herself in her report and failed to conduct an interview with Johnson to validate certain test results.

Silikovitz concluded that Johnson is "eminently qualified" for the position of correction officer. He noted that Johnson has a stable work history, stable relationships with his girlfriend and his son, and a positive relationship with his parents. According to Silikovitz, Johnson is "an upstanding citizen" and a "man of integrity and honesty." He stated that Johnson had experienced a single incident of a drug-induced "organic delusional syndrome" and/or a drug-induced "organic affective syndrome." Silikovitz asserted that Johnson's history of mental illness is "fully treatable" with medication and there were no side effects from the medication that impaired his ability to function.

The Board referred the matter to the Medical Review Panel pursuant to N.J.A.C. 4A:4-6.5(g). The panel issued a report dated March 22, 2004 recommending that an independent evaluation be performed. By decision dated June 29, 2004, the Board accepted the recommendation and ordered an independent psychological evaluation by Roger Raftery, Ph. D. who thereafter conducted the evaluation and submitted a report dated September 24, 2004.

In his report, Raftery noted that, when he was 19 years old, Johnson had been hospitalized briefly at Morristown Memorial Hospital and placed on Haldol, Depakote and Cogentin. Johnson continued to see a psychiatrist. Raftery stated:

Haldol is an antipsychotic medication and Cogentin is typically given to counteract its side affects. Depakote is a mood stabilizer. [Johnson] continues to take Depakote 1500 milligrams and Lithobid, a brand name for Litium Carbonate, 1200 mg. He denied any side affects. This combination of Litium coupled with an anticonvulsant is designed to achieve maximum control of moods particularly when a patient is prone to mania.

Raftery additionally stated:

[Johnson's] criminal history consists of an arrest in May 2000 in the City of Newark for allegedly soliciting an undercover officer for sex. He provides a different version than the official one. He denied that he intended to solicit sex but rather indicated that he simply pulled over to the curb to talk to the female detective. As a result of this charge, which occurred during a sting operation in Newark to crack down on prostitution, he pled to a Disorderly Persons and was fined $400. Despite his innocence, he pled guilty and explained it on the basis of having received this advice from his cousin who is a Newark Police Detective.

Raftery also commented on the results of his testing. He stated that Johnson's performance on a nonverbal intelligence test suggested that Johnson's intelligence is below average. The results of other tests showed a high risk for job-related problems, as well as problems with anger management and integrity. There was a moderate risk of a "proclivity" to substance abuse. Raftery added:

When compared to other public safety applicants[,] he is reporting a significant number of paranoid symptoms coupled with symptoms suggestive of an underlying anxiety disorder. His profile also suggests that he might have been subjected to a traumatic event. [Johnson] also acknowledges items that suggest the belief that he is being unduly persecuted. His profile also suggests the possibility of some symptoms congruent with a borderline personality. His interpersonal style would be described as that of cold control with his need to dominate others exceeding his interpersonal capacity for warmth.

Raftery also wrote that Johnson's psychiatric history should not be a per se disqualification from employment. He asserted:

The diagnosis of a single episode of unipolar depression, for example, treated effectively and in full remission would not in my opinion preclude someone from working. However this is not the case with [Johnson]. He continues to be maintained on lithium coupled with an anticonvulsant.

Raftery concluded that Johnson was not psychologically fit for employment as a correction officer.

Johnson filed exceptions to Raftery's report and requested an evidentiary hearing. In its final determination, the Board noted that, pursuant to N.J.A.C. 4A:2-1.1(d), hearings are only granted when there is a material and controlling dispute of fact that can only be resolved through a hearing. The Board found that a hearing was not required because Johnson had not presented any material issues of disputed fact.

The Board also reviewed the job specifications and requirements for the position of correction officer recruit. The Board found that "the psychological traits which were identified and supported by test procedures and the behavioral record relate adversely to the applicant's ability to effectively perform the duties of the title." The Board accepted and adopted Raftery's finding that Johnson was not psychologically fit to perform those duties effectively. This appeal followed.

Johnson argues that the Board erred in denying his request for an evidentiary hearing. Johnson further contends that the Board did not give him an opportunity to refute Raftery's "faulty re-evaluation." Johnson additionally argues that, in its final decision, the Board erred in making findings of fact without affording him an opportunity to be heard at an evidentiary hearing.

"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) (citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). The judiciary can intervene only in "rare circumstances in which 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). Furthermore, we must "defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992).

 
We have carefully considered Johnson's assertions on appeal and thoroughly reviewed the record. We are convinced that Johnson's arguments are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated in the Board's final decision dated December 7, 2004.

Affirmed.

(continued)

(continued)

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A-2517-04T1

January 30, 2006