IN THE MATTER OF WILFREDO MEDINA CITY OF NEWARK POLICE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3605-08T13605-08T1

IN THE MATTER OF WILFREDO MEDINA,

CITY OF NEWARK POLICE DEPARTMENT.

_________________________________

 

Argued May 4, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from a Final Administrative

Decision of the New Jersey Civil

Service Commission, No. 2007-4756.

Robert J. Cascone argued the cause for appellant

Wilfredo Medina (Fusco & Macaluso, attorneys;

Paulette L. Pitt, on the brief).

Steven F. Olivo, Assistant Corporation

Counsel, argued the cause for respondent

City of Newark (Julien X. Neals, Corporation

Counsel, attorney; Mr. Olivo, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Wilfredo Medina appeals from a Final Administrative Decision of the Civil Service Commission (the "Commission") finding him psychologically unfit for duty as a member of the Newark Police Department (the "Department") and upholding the decision of that department that he should be removed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The Department decided to remove Medina after he was charged with breaking into the apartment of the mother of his child. He said he did so because he disapproved of her current boyfriend. Medina appealed, and the matter was referred to the Office of Administrative Law as a contested matter. At the trial before an administrative law judge, each side presented expert testimony. The City presented Amie Wolf-Mehlman, Ph.D, who had conducted several evaluations of Medina during the course of his employment.

Dr. Wolf noted that Medina tended to externalize blame, that is, to deny any responsibility for problems that had developed. On the psychological tests that were performed, he had elevated scores for overcontrolled hostility and defensiveness. She explained that an elevated score for over-controlled hostility "indicate[s] the presence of repressed anger or frustration or hostility and because it is so repressed based on the elevation, there's the potential for him to behave either with a verbal impulsivity or with some form of impulsivity."

She noted that Medina had accumulated an extensive disciplinary history since he joined the department in 1993 and had previously been suspended from duty for insubordination. He also had been the subject of several domestic violence complaints. On one occasion, a child managed to obtain Medina's service revolver and shoot himself in the foot because it was not properly secured. She noted that there was an ongoing pattern of problems, going back at least to 1998. It was Dr. Wolf's opinion that in light of this long pattern, and the opportunities that had been given to Medina, including participation in therapy with no improvement, that he was psychologically unfit to remain as a police officer and should be removed. She testified that in light of this history, she had concluded that he "presented the potential for being a danger to himself or others on the job based on the fact that he has personality characteristics that make him prone to behaving impulsively and with poor judgment[,] and judgment and impulsivity are critical to performing well as a police officer."

While Medina himself did not testify, he did present his own expert witness, Edward J. Dougherty, Ed.D., who evaluated Medina in February 2007. Dr. Dougherty said that he found Medina to be defensive, but considered that normal in light of the circumstances and the potential consequences he faced. Dr. Dougherty testified that he found no evidence of a serious personality disorder and nothing that would preclude Medina from serving as a police officer. Dr. Dougherty admitted that he did not review Medina's disciplinary history as part of his evaluation or prior to completing his report.

The administrative law judge issued findings of fact and conclusions of law in which he rejected Dr. Wolf's opinion and accepted Dr. Dougherty's. He ruled that the charges against Medina should be dismissed and Medina be reinstated as a police officer. The City filed exceptions, and the Civil Service Commission issued its final determination rejecting the decision of the administrative law judge and finding Medina's removal justified. This appeal followed.

On appeal, Medina raises the following contentions for our consideration:

POINT I THE DECISION OF THE CIVIL SERVICE COMMISSION IS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD AND, THEREFORE, SHOULD BE REVERSED.

POINT II THE DETERMINATION TO TERMINATE OFFICER MEDINA SHOULD BE REVERSED.

We note first the limited scope of our review in a matter such as this. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). A final decision of an administrative body such as the Civil Service Commission should not be disturbed on appeal unless it was "arbitrary, capricious or unreasonable." Ibid. An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quotations omitted). Four factors should guide our analysis:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) 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.

[Karins, supra, 152 N.J. at 540 (quoting George Harms Constr. Co. v. New Jersey Tpk. Auth., 137 N.J. 8, 27 (1994)).]

We have carefully reviewed this record in light of those principles, and we find nothing which would justify our intervention in this matter.

We concur with the Commission that the decision of the administrative law judge gave too short shrift to Dr. Wolf's opinions. It is important to note that the administrative law judge did not rest his decision on such credibility factors as the demeanor of the two witnesses and the manner in which they testified. He attempted, rather, to deal with the substantive validity of their respective opinions. Dr. Wolf had great familiarity with Medina's employment history over the years; Dr. Dougherty did not. Dr. Wolf did not express the opinion, attributed to her by Dr. Dougherty and repeated by the administrative law judge, that an elevated scale for over-controlled hostility on the MMPI-2 (Minnesota Multiphasic Personality Inventory-2) was an indicator for potential violence. Her opinion was that an individual with such an elevated scale was at risk for sudden, impulsive actions, and she noted that such a characteristic was not desirable in a police officer.

The Commission in its opinion set forth detailed reasons for its rejection of the opinion of the administrative law judge and its conclusion that the Department correctly decided to remove Medina. Those reasons are fully supported by the record. R. 2:11-3(e)(1)(D).

Further, we reject Medina's argument that he should have received the benefit of progressive discipline, rather than removal. Progressive discipline is appropriate in the case of employee misconduct. West New York v. Bock, 38 N.J. 500, 523-24 (1962); In re Herrmann, 192 N.J. 19, 30-31 (2007). Medina's removal is not premised on misconduct but on the finding that he is psychologically unfit to serve as a police officer.

Affirmed.

 

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A-3605-08T1

July 23, 2010