IN THE MATTER OF R.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2416-09T3

IN THE MATTER OF R.S.,1

POLICE OFFICER (S9999H)

MONTVILLE TOWNSHIP.

______________________________

March 23, 2012

Argued March 30, 2011 - Decided

Before Judges Fuentes, Nugent and Newman.

On appeal from the Civil Service Commission,

Docket No. 2009-2975.

Fredric Knapp argued the cause for appellant

Township of Montville (Knapp, Trimboli &

Prusinowski, L.L.C., attorneys; Mr. Knapp, of

counsel and on the brief; Alex Klein, on the

brief).

Darryl M. Saunders argued the cause for respondent

R.S. (Fusco & Macaluso, attorneys; Robert J. Cascone,

on the brief).

Paula T. Dow, Attorney General, attorney for

respondent Civil Service Commission (Pamela N.

Ullman, Deputy Attorney General, on the statement

in lieu of brief).

PER CURIAM

The Township of Montville appeals from the final decision of the Civil Service Commission (Commission) reversing the Township's determination finding R.S. psychologically unfit to perform effectively the duties of the position of municipal police officer. After independently considering the record before it, the Commission accepted the report and recommendations of the Medical Review Panel, N.J.A.C. 4A:4-6.5(g), which found insufficient evidence to support the Township's determination of unfitness.

On appeal to this court, the Township argues the Commission acted arbitrarily and capriciously by directing the Township to appoint R.S. to the position of police officer despite evidence showing he is psychologically unfit to serve in this position. Alternatively, the Township urges us to remand this matter to the Office of Administrative Law for the purpose of conducting a plenary hearing before an Administrative Law Judge where the psychiatrists involved in testing R.S. could be subject to cross-examination. Given our well-settled standard of review, we reject these arguments and affirm.

I

In 2008, the Montville Chief of Police referred R.S. to the Institute of Forensic Psychology for the purpose of conducting a psychological examination to determine his fitness to become a member of the Township's Police Department. On November 24, 2008, psychologist Guillermo Gallegos, Ph.D. examined R.S. over a period of five and a half hours "to determine the presence, if any, of emotional or intellectual characteristics that would detrimentally affect the subject's performance in the role of police officer."

Based on this examination, Dr. Gallegos authored a report dated December 10, 2008. According to the report, at the time he applied for the position of police officer in Montville, R.S. was twenty-four years old and married. He graduated from high school with a grade point average (GPA) of 3.9 (presumably based on a zero to 4.0 scale), and participated in school-sponsored athletic activities. He thereafter enrolled at Seton Hall University where he received a Bachelor's Degree in Criminal Justice, graduating with a 3.0 GPA. His employment history consisted of a number of part-time jobs, including: working as a security guard; doing roofing work at his father's company; and bookkeeping. He has never been terminated from any job and has not had any problems with coworkers.

R.S. has no criminal history and has never been charged with or accused of committing an act of domestic violence. His driver's license has never been suspended; he reports only one moving violation. R.S. has not served in the military nor has he been involved in doing volunteer work. He applied to the position of police officer because he likes helping people and wanted "to keep [his] town safe."

Dr. Gallegos reported that R.S. "earned an IQ equivalent of 115 . . . indicative of high average intellectual functioning." By contrast, Dr. Gallegos noted that only "average intelligence is needed for public safety work," and that "[p]olice candidates average about 103." Dr. Gallegos also found that R.S. tested average in writing ability and that his "judgment was fair."

With respect to his psychological fitness, Dr. Gallegos indicated that R.S. "considers himself to be a 'well rounded person.'" When asked to name an aspect of his personality that he would like to improve, R.S. responded that "[n]othing stands out." Dr. Gallegos noted that R.S. had been "psychologically evaluated by the Port Authority and was 'not certified.'"2 R.S. has not been diagnosed with a mental health disorder or received treatment for an emotional or mental health related issue. He consumes alcohol only in moderation (about twice a month) and has never used illicit drugs. His credit history and financial status are also in order.

Based on this evidence, Dr. Gallegos found that R.S. was not psychologically fit for the position of police officer. He gave the following explanation in support of this conclusion:

This candidate appears to be unreliable. On the COPS Test,3 a weighted biographical questionnaire designed to make predictions about performance of law enforcement personnel, out of a possible 18 lies he ascribed to 17 of them. He implied in these responses that there has never been a time in his life when he has lied; that he never lets anything get him angry; and that he has never taken anything that did not belong to him, regardless of its value; etc. What this means is that this candidate is willing to distort the truth as long as it serves his purposes. Furthermore, even though intelligence testing indicates that he is very bright, [R.S.] showed questionable judgment in his response to a written hypothetical police situation. [R.S.] is not recommended for appointment.

The first page of the COPS test relied on by Dr. Gallegos to support his opinion contains the following disclaimer, written in capital letters: "COMMENTS SHOULD BE INTERPRETED AS PROBABILITIES ONLY, UNLESS CONFIRMED BY COLLATERAL INFORMATION. EMPLOYMENT DECISIONS SHOULD NOT BE MADE ON THE BASIS OF TEST RESULTS ALONE." The test is based on two scores; namely "[t]he Lie score, reflecting a desire to present a favorable image, and the Inconsistency score, reflecting unreliability of response."

The average Lie score for a candidate for a public safety position is less than eight. R.S.'s score was seventeen. Dr. Gallegos noted that because "[a] score of this level occurs in less than one half of one percent of the norm population," this rendered the test results unreliable. He thus concluded that "no prediction for ultimate performance can be made on the basis of these 'COPS' results."

The Township relied on Dr. Gallegos's findings and recommendations to reject R.S.'s application. R.S. appealed the Township's decision to the Commission. In support of his appeal, R.S. submitted a psychological evaluation prepared by Dr. David Gomberg, a forensic psychologist. Dr. Gomberg interviewed R.S for one and one half hours, reviewed Dr. Gallegos's report, and interviewed R.S.'s supervisor. He also administered to R.S. the Minnesota Multiphasic Personality Inventory 2 test (MMPI-2), a nationally recognized test accepted by the Merit System Board.4

Dr. Gomberg disputed Dr. Gallegos's findings. Based on the results of the MMPI-2, Dr. Gomberg found that R.S. "made a conscious effort to present himself in an overly favorable manner on the test." According to Dr. Gomberg, "this type of respon[se] is not unusual for job applicants . . . ."

Dr. Gomberg also took issue with Dr. Gallegos's finding that R.S. "was unable to adequately answer the role playing scenarios on his test." Dr. Gomberg noted that R.S. "answered this examiner's two role play items very well with no hesitation and no need to think about his answers." This indicated to Dr. Gomberg that R.S. "was keenly aware of what his job would entail, how to respond appropriately to difficult situations, and was more assertive than was indicated on the prior psychological evaluation." Dr. Gomberg thus concluded that, although R.S. may be "overly idealistic and perhaps even rigidly so," there were no indications that he would not be able to perform the duties of a police officer or any other public safety position.

Based on these conflicting psychological evaluations, the Commission referred the matter to the Medical Review Panel.5 The Panel convened to hear this case was comprised of psychologist Angelica Diaz-Martinez, Psy.D., and physician Dr. Evan Feibusch, M.D. After reviewing the two psychological evaluations and considering the statements made by R.S. and the Township's Chief of Police, the Panel concluded that "the applicant is mentally fit to perform effectively the duties of the position sought, and therefore, the action of the hiring authority should not be upheld." In reaching this conclusion, the Panel specifically addressed the conflicting psychological assessments of R.S.'s propensity to lie or exaggerate.

The evaluators on behalf of the applicant and the hiring authority reached differing conclusions and recommendations. The [Panel] did not find evidence in [R.S.'s] behavioral history that was reflective of underlying psychological problems. Although the applicant noted that he was not afraid of anything, one of the items that triggered the invalidity of the IFP testing, his behavioral history does not reflect excessive risk taking, impulsivity, or aggression that might be associated with truly having a lack of anxiety in typical anxiety provoking situations. The [Panel] was of the opinion that it was more likely that this reflected a lack of psychological sophistication than outright lying or a pathological absence of fear. Valid results on the EPPS, also administered by the IFP, would seem to argue against "willingness to distort the truth as long as it suits his purposes" as opined by Dr. Gallegos. The [Panel] wondered why [R.S.] would willingly distort the truth on one psychological test, but not the other. In any event, the [P]anel was of the opinion that the conclusions that could be drawn from the invalidated test were limited.

The Panel thus recommended that R.S. "be reinstated to the candidate eligibility list." No exceptions were filed by the parties.

After conducting its own independent evaluation of the evidence, the Commission accepted and adopted the findings and conclusions contained in the Panel's Report and Recommendation. The Commission found "the appointing authority ha[d] not met its burden of proof that [R.S.] is psychologically unfit to perform effectively the duties of a Police Officer," and ordered that his name be restored to the eligibility list.

The Commission specifically addressed the Township's burden of proof.

Absent any disqualification issue ascertained through an updated background check conducted after a conditional offer of appointment, the appellant's appointment is otherwise mandated. A federal law, the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12112(d)(3), expressly requires that a job offer be made before any individual is required to submit to a medical or psychological examination. That offer having been made, it is clear that, absent the erroneous disqualification, the aggrieved individual would have been employed in the position.

[(Citations omitted).]

II

Our review of an administrative agency's determination is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). "In administrative law, the overarching informative principle guiding appellate review requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Application of Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).

Guided by this standard, we do not ordinarily disturb an administrative agency's determinations or findings "unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid. As the party challenging the Commission's decision, the Township has the burden to show that the decision was arbitrary, capricious or unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Given the conflicting psychological opinions, the Commission properly referred the matter to the Medical Review Panel. The Panel members have the expertise and experience to review the evidence presented and thereafter recommend a course of action to the Commission based on their assessment of this evidence. The Panel's report describes in detail its reasoning and is supported by the record. The Commission's decision to adopt and accept the Panel's findings and recommendations is also amply supported by the record.

We discern no valid grounds to set aside the Commission's decision. The Township's request that we remand this matter to the OAL for a plenary hearing has no basis in law. The procedures established by the Legislature when it created the Commission are presumptively valid. In re Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552, 564 (App. Div.), certif. denied, 208 N.J. 597 (2011). The regulations promulgated by the Commission establishing the Medical Review Panel are likewise vested with this presumption of validity, especially because the Panel is constituted to provide expertise in the field of public safety employment. Ibid. The Township has not overcome this presumption.

A

1 We use initials to protect the petitioner's privacy.

2 During oral argument in this appeal, we noted that the record before us did not include a copy of this alleged Port Authority evaluation. Counsel for appellant misconstrued this observation as an invitation on our part to supplement the record. By letter dated March 31, 2011, we made clear to counsel that the record in this case was closed and that this appeal would be decided "on the record submitted in accordance with the rules of appellate practice."

3 COPS refers to the "Candidate and Officer Personnel Survey."

4 In re Vey, 135 N.J. 306, 309 (1994); N.J.A.C. 4A:4-6(f)(5).

5 The Medical Review Panel is "[a] panel of professionals in psychology which, upon the request of the Civil Service Commission, reviews appeals of individuals who have been disqualified from employment as a law enforcement officer or a firefighter for psychological reasons." Dictionary of CSC Terms, N.J. Civ. Service Commission, http://www.state.nj.us/csc/about/
about/terminology/definitions.html (last visited March 12, 2012).