IN THE MATTER OF RYAN TULKO, SHERIFF'S OFFICER (S9999D), OCEAN COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6481-04T56481-04T5

IN THE MATTER OF RYAN TULKO,

SHERIFF'S OFFICER (S9999D),

OCEAN COUNTY

______________________________

 

Argued: April 17, 2007 - Decided May 18, 2007

Before Judges Axelrad and R.B. Coleman.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2004-1423.

William P. Flahive argued the cause for appellant Ryan Tulko.

Mary Jane Lidaka argued the cause for respondent Ocean County Sheriff's Department (Berry, Sahradnik, Kotzas, Riordan & Benson, attorneys; Ms. Lidaka, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the brief).

PER CURIAM

Ryan Tulko appeals from a final agency decision of the New Jersey Merit System Board ("Board") issued on June 28, 2005, upholding a request by the Ocean County Sheriff's Department ("Sheriff's Department") to remove his name from an eligibility appointment list on the grounds that he was not psychologically fit to perform the duties of the position. We affirm.

Tulko was a police officer serving in a provisional capacity in Lavalette since 2001. He graduated from the Ocean County Police Academy in May 2002. In April 2003, he applied for permanent appointment with the Sheriff's Department. Tulko was chosen for a candidate interview, which he attended on June l7, 2003. On June l9, 2003, Tulko received a conditional offer of employment, which noted that a permanent appointment would be contingent on successfully completing, with successful results, a background investigation, stress test, psychological evaluation, medical examination, and police academy basic training.

As part of its background investigation of Tulko, the Sheriff's Department obtained information from the Berkeley Township Police Department, which consisted of a printout of incidents Tulko was alleged to have been involved in as a witness, victim and/or suspect from l991 to l995, when he was seventeen years of age or younger; nine "incident reports" from those listed; and information regarding a summons issued in l997 for underage drinking that was dismissed. According to the juvenile incident reports, none resulted in any charges. The only incident reflecting an "arrest" was on May 27, 1995, when Tulko was seventeen, and he and two other juveniles were brought to headquarters for shooting bottles in the woods with their fathers' guns. No complaints were signed and the boys were released to their parents. On his application to the Sheriff's Department, Tulko disclosed the underage drinking summons in response to a question as to whether he had ever been "arrested, issued a summons for any crime or for violation of the Motor Vehicle Laws . . . ." In response to the questions of whether he was "ever arrested for or charged with Juvenile Delinquency" or "held as a suspicious person or investigated/questioned by any law enforcement for any reason," he checked "No."

Dr. Roger Raftery conducted a psychological evaluation of Tulko, during which he administered psychological tests, interviewed him, and reviewed the Sheriff's Department's background investigation and other background information, his application, and the videotape of his department interview. Dr. Raftery's September 9, 2003, report did not find Tulko to be psychologically fit for the position. He noted two areas of concern regarding Tulko's candidacy, one being his low score on the Wonderlic personnel test, a brief test of intelligence consisting of traditional items such as vocabulary, arithmetic, and logic, which is well below the cutoff of 22 suggested for police officers. The other area was the issue of "honesty and integrity" based on inconsistent information Tulko provided in the application and interview process. Tulko denied to the psychologist that he was ever involved with the juvenile justice system, which the psychologist felt was contrary to the nine incident reports. He also concluded the behaviors alleged in the reports were quite serious and suggested a record of delinquent/antisocial behavior.

Tulko was informed he was no longer being considered for a position with the Sheriff's Department as a result of Dr. Raftery's evaluation. He appealed to the Board. Tulko submitted an April 5, 2004 psychological screening report by Dr. Donald Duffey who conducted evaluations on March 17 and 29, 2004. Dr. Duffey reviewed Dr. Raftery's report and underlying materials, interviewed Tulko, and administered tests. Dr. Duffey provided Tulko's explanation for not indicating to Dr. Raftery that he had contact with the juvenile justice system, as he maintained he had "no arrests, was never charged, had no juvenile record, and no direct contact with the police" and denied that he was at fault in some of the incidents. Dr. Duffey's testing found Tulko to be of "at least average intelligence" and capable of functioning as a law enforcement officer, and that the scores did not support Dr. Raftery's conclusion that Tulko had antisocial tendencies.

Pursuant to the Board's direction, an independent psychological evaluation was performed by Dr. Robert Kanen on February l8, 2005, and the results were reflected in a report on that date. Dr. Kanen interviewed and administered his own tests to Tulko, and identified psychological traits in Tulko's behavioral record, as well as during his evaluation, which he felt adversely impacted Tulko's ability to effectively perform as a sheriff's officer. He was concerned that Tulko listed his legal address in Lavalette because of an apparent residency requirement although he actually resided in a home he owned with his girlfriend in Bayville, and felt that "strongly suggests manipulation of the system." Dr. Kanen's report acknowledges that none of Tulko's juvenile incidents resulted in court appearances or convictions. Dr. Kanen's concern, as was Dr. Raftery's, was that Tulko was "not forthcoming on psychological testing, the Public Safety Application Form or the Behavioral History Questionnaire" as he had not disclosed any incidents or behavioral problems and "showed a reluctance to reveal himself and may have presented an unrealistically virtuous picture." For example, on the Inwald Personality Inventory, he did not admit to having trouble controlling his temper, though during the interview he admitted to having an altercation with his mother and to breaking a car window. He also answered "true" on the Inwald to "I have never had unauthorized firearms in my possession" but admitted during the interview to the target shooting incident in the woods and the fact that he could not possess a firearm under the age of eighteen. Dr. Kanen concluded that "Tulko's responses to psychological testing and interview questions raise concerns about his capacity to be straightforward about the facts of his life."

With regard to the various tests administered by Dr. Kanen, Tulko was found to be functioning in the "Much Below Average range of intelligence as estimated by the Shipley Institute of Living Scale," in the "Low Average range of intelligence as estimated by five subtests of the Wechsler Adult Intelligence Scale," his estimate I.Q. score placed him "significantly below what is required of the average law enforcement officer in terms of cognitive ability," and his reading and spelling scores were at an elementary school level. Dr. Kanen concluded that Tulko did "not have the necessary reading and writing skills to adequately perform the duties of a law enforcement officer."

Dr. Kanen's final conclusion was:

It is this examiner's opinion that, due to serious reading and writing deficits, severe defensiveness on psychological testing, inconsistency in his responses to psychological testing and the facts that he reported about his life, immaturity, and proneness to impulsivity and poor judgment, Mr. Ryan Tulko is psychologically unsuitable to perform the duties of a law enforcement officer.

Exceptions and cross-exceptions were filed by the parties.

On June 29, 2005, the Board issued its final administrative action, in which it discussed Dr. Kanen's report and the parties' exceptions. Specifically, the Board noted that Tulko offered explanations for the juvenile incidents alluded to in Dr. Kanen's report and asserted he was not responsible for all of the incidents and it was inappropriate for the Board to rely on them as a basis for disqualification. Tulko emphasized that he had no record or history of criminal or antisocial behavior. He argued he could not be disqualified for co-owning a house, but maintaining his primary residence elsewhere. He further asserted that Dr. Kanen ignored the Board's directive to evaluate his service as a provisional police officer in Lavalette, where he had an unblemished record.

The Board reviewed the job specifications and duties for sheriff's officer and "found that the psychological traits which were identified and supported by test procedures and the behavioral record relate adversely to [Tulko's] ability to effectively perform the duties of the title." After making an independent evaluation of the record, the Board adopted the findings and conclusions contained in the report and recommendation of Dr. Kanen. The Board noted that, in addition to conducting his own psychological examination of Tulko, Dr. Kanen independently reviewed the raw data presented by the parties and the recommendations and conclusions drawn by all the evaluators. He then rendered his own conclusions and recommendations, "which are based firmly on the totality of the record presented." The Board was not persuaded that Tulko's exceptions disputed Dr. Kanen's findings and recommendations. It stated:

Specifically, the Board notes that the reports of Dr. Raftery, the Medical Review Panel and Dr. Kanen all indicated that [Tulko] was less than forthcoming during the interview process. The Board is not persuaded by [Tulko's] attempts to explain his residency discrepancy with the argument that he owned two houses, and finds that this illustrates [Tulko's] willingness to be less than truthful in order to maintain his residency status on an eligibility list. With regard to the nine juvenile police reports, the Board finds that, when coupled with the test data and behavioral record, Dr. Kanen's findings of impulsivity and bad judgment are amply supported by the record. Furthermore, the Board is unconvinced by [Tulko's] attempts to dispute the recommendation and report of Dr. Kanen and notes that, of the five psychologists who evaluated [Tulko], only [Tulko's] own evaluator, Dr. Duffy, found him psychologically suitable for the subject position. The Board is mindful that the public expects candidates for positions in law enforcement to be held to a higher standard of personal accountability and any adverse interaction with the legal system can be considered when evaluating candidates for law enforcement positions. See In the Matter of Albert DeAngelo, Jr., (MSB, decided August 11, 2004). Finally, while the Board questioned the Medical Review Panel's recommendation based in part on the fact that [Tulko] was a provisional Police Officer, Dr. Kanen's report clearly and convincingly presents that [Tulko] is an unsuitable candidate for Sheriff's officer regardless of his work history.

The Board concluded that the Sheriff's Department "met its burden of proof that Ryan Tulko is psychologically unfit to perform effectively the duties of a Sheriff's Officer" and, therefore, ordered his name to be removed from its eligibility list. On August 9, 2006, the Board denied Tulko's request to settle the record. This appeal ensued. By order of October 4, 2006, we also denied a motion to supplement or settle the record.

Tulko asserts the following arguments on appeal:

POINT I

THE MERIT SYSTEM BOARD BASED ITS DECISION UPON UNRELIABLE AND UNSUBSTANTIATED ALLEGATIONS FROM THE APPELLANT'S YOUTH TO REMOVE HIS NAME FROM THE ELIGIBLE LIST IN VIOLATION OF N.J.S.A. 11A:4-11.

POINT II

THE MERIT SYSTEM BOARD ALLOWED INAPPROPRIATE MATERIAL TO BE CONSIDERED IN EVALUATION OF APPELLANT IN VIOLATION OF N.J.S.A. 11A:4-10.

POINT III

THE MERIT SYSTEM BOARD VIOLATED ADMINISTRATIVE DUE PROCESS RIGHTS OF THE APPELLANT BY ACCEPTING AS TRUE ALLEGATIONS FOR WHICH THE APPELLANT NEVER HAD THE BENEFIT OF A HEARING BEFORE A FINDER OF FACT.

POINT IV

THE MERIT SYSTEM BOARD WAS ARBITRARY AND CAPRICIOUS IN ADOPTING THE FINDINGS AND CONCLUSIONS OF A PSYCHOLOGICAL EVALUATION THAT WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.

POINT V

THE MERIT SYSTEM BOARD'S RELIANCE ON THE EVALUATOR'S FINDINGS AND CONCLUSIONS WITH REGARD TO APPLICANT'S RESIDENCY WAS INAPPROPRIATE SINCE IT DOES NOT RELATE TO HIS APPLICATION TO THE O.C.S.D. AND THERE IS NOTHING IMPROPER ABOUT HIS RESIDENCE.

As a general rule, our role in reviewing final administrative decisions is limited. A final agency decision will not be disturbed on appeal unless it is arbitrary, capricious, or unreasonable, unsupported by substantial credible evidence in the record, or contrary to express or implied legislative policies. In re Taylor, 158 N.J. 644, 656-57 (1999); In re Musick, 143 N.J. 206, 216 (1996). We may not vacate an agency's decision because of doubts as to its wisdom or because the record may support more than one result, and must uphold an agency's findings even if we would have reached a different result, so long as sufficient credible evidence exists to support the agency's conclusions. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). See also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988) (we may not substitute our judgment for that of an administrative agency even if we might have reached a different conclusion unless the agency's determination is "so plainly unwarranted that the interests of justice demand intervention and correction").

Applying these well-established standards to the facts of this case, we are not convinced by Tulko's arguments that there is a basis for overturning the Board's determination. Contrary to Tulko's assertions, the Sheriff's Department did not act to remove him from the eligibility list, and the Board did not uphold that decision, based on an erroneous assumption that he had a juvenile and criminal record. Nor was he denied eligibility because a neighbor claimed he might have thrown eggs at her house and ripped open bags of leaves on her property when he was twelve years old or, in fact, solely because of the nine juvenile incident reports contained in the record. An evidentiary hearing was unnecessary to determine if Tulko was responsible for any of the juvenile offenses listed in the Berkeley police incident reports. There was more than adequate explanation provided for the incidents, many of which were minor and some of which Tulko was only tangentially involved. More importantly, it was the fact that he did not disclose any of the incidents that created the negative assessment, not necessarily each of the incidents themselves.

Contrary to Tulko's assertion, both Dr. Kanen and the Board were well aware that Tulko had served as a provisional police officer in Lavalette since 2001, and of his unblemished record of service there. The Board was satisfied, however, that Dr. Kanen's report "clearly and convincingly" presented that Tulko was an unsuitable candidate for the position "regardless of his work history." The Sheriff's Department could have offered Tulko the position based on his work performance in Lavalette and the support of its police chief, but we cannot find it erred as a matter of law in not doing so based on the record before us and our limited standard of review. There was substantial credible evidence in the record upon which the Board could appropriately rely and an adequate record upon which to justify adopting the findings and recommendations of its independent psychologist Dr. Kanen. As the Board noted, Tulko was considered psychologically unfit for the position for a variety of reasons, based on the totality of the record, including his lack of disclosure about his contacts with law enforcement during his teenage years, however minor; his responses to psychological testing and interview questions; and his performance on a multitude of psychological, intelligence, reading, and spelling tests.

Affirmed.

 

For example, Tulko was a passenger in the car during the "high speed chase" and "bias" incidents. It is clear from the latter incident report that the racial slur was made by the driver, not Tulko.

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A-6481-04T5

May 18, 2007