IN THE MATTER OF JEFFREY M. TERRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5620-05T35620-05T3

IN THE MATTER OF

JEFFREY M. TERRY,

Appellant.

________________________________________________________________

 

Submitted August 14, 2007 - Decided August 22, 2007

Before Judges Sabatino and Baxter.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-2949.

Cresci & Black, attorneys for appellant (Peter J. Cresci, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea R. Grundfest, Deputy Attorney General, on statement in lieu of brief).

DeCotiis, Fitzpatrick, Cole & Wisler, attorneys for respondent, Town of Morristown (Susan E. Volkert, on the brief).

PER CURIAM

Jeffrey M. Terry appeals from a May 25, 2006 decision of the Merit System Board (Board) concluding that he is psychologically unfit and therefore ineligible to effectively perform the duties of a police officer in the Town of Morristown. In particular, he argues that in reaching that conclusion, the Board erred in two respects: (1) by relying upon the expert opinion of a psychologist whose report was tainted by his acceptance of the conclusions of an unlicensed psychologist, and (2) by declining to adopt the opinion of Terry's own psychological examiner, Bart Rossi, Ph. D., who found Terry psychologically fit. We disagree with Terry's arguments, and affirm.

I.

Terry applied for the position of police officer with the Morristown Police Department, and on December 17, 2004, was notified that he was eligible for employment, conditioned upon "successful completion of physical and psychological evaluations." The chief of police directed Terry to undergo a psychological evaluation at the Institute for Forensic Psychology (Institute). The Institute rendered a report on January 10, 2005, concluding that Terry "does not possess the psychological characteristics deemed necessary to perform the duties of the position sought and is not considered to be psychologically suited to [such] position."

Thereafter, Terry filed a complaint with the Department of Law and Public Safety, Division of Consumer Affairs (Division), which licenses psychologists, alleging that Mathew Guller, Ph. D. had performed a psychological examination upon him even though Dr. Guller lacked a plenary license. The Division conducted an investigation, and notified the Board that Dr. Guller did not have a plenary license at the time he examined Terry.

Once the Board learned of Dr. Guller's lack of licensure, it directed Terry to participate in an independent evaluation by a licensed psychologist, Robert Kanen, Psy. D. On January 7, 2006, Dr. Kanen conducted a clinical interview of Terry, administered eight psychological tests, and reviewed all of the applicable documents, including Dr. Guller's report of January 10, 2005. Based upon the clinical interview, the eight psychological tests he administered and his review of the pertinent documents, Dr. Kanen issued a report on January 7, 2006 concluding that Terry was "psychologically unsuitable to perform the duties of a police officer."

In reaching his conclusion, Dr. Kanen in part relied upon a June 30, 2004 memorandum to Morristown Police Chief Peter Demnitz from Lt. Mark Meehan, in which Meehan recommended that Terry not be hired. Meehan reported that Terry had been fired from two prior jobs and had admitted to being "too physical" with people in the past. Meehan also described a written reprimand issued to Terry while he served as a police dispatcher after Terry intentionally disobeyed the directions of the watch commander not to contact the airport tower during an emergency. Meehan also noted that "Terry admits to being head strong and physical in the past" and admits "he has made comments to arresting officers about 'tuning people up' but explained that he was [just] trying to fit in." Meehan's June 30, 2004 memo concluded with the remark that "Terry has the propensity to be abusive and a bully."

Dr. Kanen's January 7, 2006 report also analyzed Terry's responses to the Rorschach Inkblot test. Dr. Kanen opined that those responses were "consistent with individuals" who "have great difficulty regulating their emotions." Consequently, their resulting behavior "may be grossly inappropriate for what the situation warrants." Dr. Kanen commented that "when faced with an emotionally charged, unstructured situation, [Terry] is prone to become very self-centered, do what he wants to do, and to have difficulty regulating his emotions."

Dr. Kanen explained his findings in his report:

This examiner concurs with the findings of the Institute for Forensic Psychology that Mr. Terry lacks credibility regarding many issues in his background. This evaluator takes very seriously the concerns expressed by members of the Morristown Police Department regarding Mr. Terry's capacity to follow orders, statement[s] about tuning people up, statements about speaking skills being rough in the past, and past work-performance problems.

He admits he wants the job partly because of the excitement. However, testing and social history suggest that when faced with an intense, emotionally charged situation, he may have difficulty effectively modulating his emotions and the resulting response may be grossly inappropriate for what the situation warrants. Mr. Terry summed it up himself by reporting that in the heat of an emergency, his response was a "gut reaction." Although he knew he was disobeying an order, he did what he wanted to do. This is consistent with the finding that he is a self-centered individual who overrates his merits and capacities and attributes his difficulties to the actions of others or to events outside of his control rather than his own shortcomings.

The findings of this evaluation raise concerns that Mr. Terry would have difficulty effectively interacting with the community during emotionally charged, stressful and complex situations.

Mr. Jeffrey Terry is considered psychologically unsuitable to perform the duties of a police officer.

In contrast to Dr. Kanen's opinion, the psychological evaluation conducted by Dr. Rossi at Terry's request resulted in a finding that Terry had a "personality profile that is within normal limits." Dr. Rossi opined that Terry's "profile is not indicative of any major psychological problems or issues." Ultimately, Dr. Rossi concluded that "Mr. Terry appears to be a good candidate for a position as police officer. He is recommended for the position and should be a fine addition to any local police department."

After the Medical Appeal Panel of the Board received Dr. Kanen's January 7, 2006 report, it afforded Terry the opportunity to file written exceptions. Terry did so. He argued that Dr. Rossi's report should be adopted, and contended that because Dr. Kanen had simply parroted the findings of the unlicensed Dr. Guller, Dr. Kanen's conclusions should be disregarded.

On May 25, 2006, the Board issued the decision from which Terry appeals. In that decision, the Board evaluated all three of the psychological evaluations that had been conducted. When it rejected Terry's claim that Dr. Kanen had merely "regurgitated" Dr. Guller's report and that Dr. Kanen's report was not credible, the Board noted that Dr. Kanen made very specific findings, which included the results of his own "comprehensive psychological evaluation" and eight independent tests. The Board agreed with Dr. Kanen's observation that Terry had been terminated from at least one previously-held position and had quit five or more jobs within the last ten years, and was once suspended from a hospital job due to an argument with a co-worker. The Board concluded that Dr. Kanen's findings of Terry's unfitness were the result of Dr. Kanen's own thorough analysis and did not merely parrot Dr. Guller's findings. The Board also concluded that Dr. Kanen's opinion properly focused on the specific character and behavioral traits necessary to perform the duties of a police officer.

The Board also provided reasons for rejecting Dr. Rossi's findings. In particular, the Board noted that "Dr. Rossi failed to address the issue of aggression, which the [medical review] panel emphasized was of 'monumental concern' when evaluating a candidate's psychological suitability for employment as a police officer."

In concluding that Terry was not psychologically fit, the Board first reviewed the qualifications necessary for police work:

Police Officers are responsible for their lives, the lives of other officers and the public. In addition, they are entrusted with lethal weapons and are in daily contact with the public. They use and maintain expensive equipment and vehicle(s) and must be able to drive safely as they often transport suspects, witnesses and other officers. A Police Officer performs searches of suspects and crime scenes and is responsible for recording all details associated with such searches. A Police Officer must be capable of responding effectively to a suicidal or homicidal situation or an abusive crowd.

The Board then considered those duties in light of Dr. Kanen's opinion, and concluded that "Terry is psychologically unfit to perform effectively as a police officer."

II.

We analyze Terry's contentions in light of our standard of review. An appellate court plays a limited role in reviewing the final decision of an administrative agency. In re Zahl, 186 N.J. 341, 353 (2006). We afford substantial deference to the actions of administrative agencies such as the Board. Ibid. Such "[d]eference is appropriate because of the 'expertise and superior knowledge' of agencies in their specialized fields." Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). An appellate court will not upset the ultimate determination of an agency unless such decision was arbitrary, capricious or unreasonable. In re Taylor, 158 N.J. 644, 657 (1999).

Broad authority has been delegated to the Board to adopt and enforce rules and regulations in furtherance of the purposes of the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. The Board is entitled to remove the name of a potential candidate from a list of candidates otherwise eligible for appointment if the candidate is "psychologically unfit to perform effectively the duties of the title." N.J.A.C. 4A:4-6.1(a)(3). The administrative agency is permitted to use psychological and personality testing to predict or evaluate job performance and may remove a potential employee if specific reasons are shown based upon that testing. N.J.A.C. 4A:4-6.5.

Our careful review of the record in light of the applicable standard of review demonstrates that the Board's decision of May 25, 2006 is amply supported by the record. The Board thoroughly analyzed Dr. Kanen's report in light of Terry's claims that Dr. Kanen's report constituted merely an impermissible "regurgitation" of Dr. Guller's findings, and it provided detailed and persuasive reasons for finding Dr. Kanen's expert opinion nonetheless worthy of acceptance. The record supports the Board's finding that Dr. Kanen administered eight different psychological exams to Terry, conducted a clinical interview and reviewed all of the documentary evidence. The Board's acceptance of Dr. Kanen's conclusions and its rejection of Dr. Rossi's find substantial support in the record.

In its May 25, 2006 decision, the Board observed "this is not a matter of just any position. The position is that of a police officer." As the Court reasoned in In re Vey, 135 N.J. 306 (1994), "[s]ociety reposes in police officers responsibilities that are simultaneously weighty, sensitive, and fraught with dangerous consequences to themselves, other police officers, and the public." Id. at 308. "Police officers are authorized to carry firearms . . . and to use deadly force in justifiable circumstances. . . . Not everyone can do that kind of work. . . . [P]olice work is not just another job and . . . some people should not serve as police officers." Ibid.

The Board's conclusion that Terry lacked psychological fitness to so serve is not arbitrary, capricious or unreasonable and is based upon substantial credible evidence in the record.

 
Affirmed.

(continued)

(continued)

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A-5620-05T3

August 22, 2007