IN THE MATTER OF VINCENT W SURACE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6078-05T26078-05T2

IN THE MATTER OF VINCENT W.

SURACE, POLICE OFFICER

(S9999D), BOROUGH OF FORT

LEE.

____________________________________

 

Submitted February 14, 2008 - Decided

Before Judges Payne, Sapp-Peterson and Messano.

On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-3580.

DeCotiis, Fitzpatrick, Cole & Wisler, attorneys for appellant Borough of Fort Lee (Steve Mannion, on the brief).

Edward J. Nolan, attorney for respondent Vincent W. Surace.

Anne Milgram, Attorney General, attorney for respondent Merit System Review Board (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In this appeal, the Borough of Fort Lee (Fort Lee) challenges a decision of the Merit System Board (the Board) concluding that Fort Lee did not meet the burden of proof necessary to establish that Vincent W. Surace was psychologically unfit to effectively perform the duties of a police officer. The Board ordered that Surace's name be restored to the list of eligible candidates. We affirm.

On November 2, 2004, Surace was interviewed by the Fort Lee Police Department, Background Investigation Unit (BIU), for a position as police officer and, during that interview, was offered a conditional offer of employment (COE), although his background check had not been completed. On December 21, 2004, Surace underwent a psychological examination at the Institute for Forensic Psychology. The examination was performed by Dr. Guillermo Gallegos. Dr. Gallegos prepared a report of his examination and findings dated December 30, 2004, in which he concluded that Surace was not psychologically suited for employment as a police officer. He found that Surace's "arrest history is of significant concern." He noted:

In particular, considering that one of the arrests involved the possession of drugs. Even though the charges were dismissed in the CDS [controlled dangerous substance] case, the candidate admitted to having bought the drug and to have had it on him when arrested. Furthermore, a slightly different version was given by him in March of 2004 when he was interviewed in our offices for the Bergen County Sheriff's Department. There are indications from our testing that this candidate responded to our questionnaire with a less than candid attitude.

In any event, we are cognizant that the demands of a police officer in terms of discretionary judgment and the ability to confront a number of normal situations with no immediate supervision greatly differ from the demands of a Corrections Officer. We would prefer to see Mr. Surace maintain stable employment for at least one or two years and demonstrate consistent maturity, self-discipline and responsibility before we can recommend him for another law enforcement position.

Based upon Dr. Gallegos' recommendation, Fort Lee applied to the Department of Personnel (DOP) to have Surace's name removed form the police officer eligibility list. Surace appealed the removal of his name from the list to DOP and the matter was assigned to the Medical Review Panel (Panel).

Prior to the matter being considered by the Panel, Surace underwent an independent psychiatric examination performed by Dr. Alberto M. Goldwaser. Dr. Goldwaser disagreed with the opinions reached by Dr. Gallegos and concluded that Surace was psychologically fit to serve as a police officer. In his report, he specifically commented upon Dr. Gallegos' findings:

11) Dr. Gallegos based his rejection of this applicant on his opinion that Officer Surace having had an "arrest history[,]" and that was of "significant concern" to him. Dr. Gallegos did not comment on the fact that these events took place during a very specific and no longer present developmental stage, namely (late) adolescence. After accepting responsibility in these two incidents, Officer Surace demonstrated stability, and appropriate work ethics, as demonstrated in his six years of uninterrupted employment as manager of a store, and in the almost two years of service in law enforcement.

12) The psychologist['s] second objection to his becoming a police officer related to his not having an adequately long employment history in law enforcement, now 21 months and running.

13) Dr. Gallegos['] third objection to his becoming a police officer related to his understanding that Officer Surace, nine months earlier, provided "a slightly different version" of his arrest history, happening during his late adolescence. Dr. Gallegos did not provide the actual dissimilar quotes or comment on the fact that both versions truthfully depicted an event.

14) Reviewing the records provided to me, I was able to confirm that Officer Surace provided both, Dr. Thompson and Dr. Gallegos, with the same information concerning the arrest history of his late adolescent years.

The Panel heard Surace's appeal on October 21, 2005. Surace appeared at the proceeding with his attorney and Dr. Goldwaser. No one appeared on behalf of Fort Lee. The Panel considered the reports from Drs. Gallegos and Goldwaser and questioned Surace about his ability and willingness to admit any faults. The Panel was satisfied that Surace had performed satisfactorily as a corrections officer, that a number of his responses to questions in his application were "driven by the desire to put himself in the best possible light," which the Panel concluded "is not unusual in the highly-motivated job seeker." The Panel concluded that on balance, Surace's appearance before it was "positive" and "[t]he test results and procedures and the behavioral record, when viewed in the light of the Job Specification for Police Officer, indicate 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."

Fort Lee filed exceptions to the Panel's recommendation. It initially stated that due to a "clerical oversight[,]" which it did not further explain, it never received Dr. Goldwaser's report, which relied, in part, upon an earlier psychological report prepared by Dr. Cheryl Thompson, Ph.D. It argued that the Panel, in making its recommendation, "overlooked the focus of Dr. Gallegos' Report which was Mr. Surace's present lack of candor and truthfulness," which in Fort Lee's view, "demonstrate a psychological disqualification to serve." It also distinguished service as a corrections officer in a "regimented custodial environment" from service as a police officer "in the field without close supervision." The bulk of its exceptions were directed to Surace's alleged material misstatements related to his drug usage and prior arrests. In a footnote, however, Fort Lee asked the Board to remove Surace's name from the eligible list for additional reasons, namely, false statements of material facts, N.J.A.C. 4A:4-6.1(a)(6), and deceiving or defrauding other governmental agencies in the past and present, N.J.A.C. 4A:4-6.1(a)(6).

Surace filed cross-exceptions, pointing out that (1) the Panel closely questioned Surace relative to the concerns expressed in Dr. Gallegos' report, i.e., his prior arrest history, his candor, and his job experience; (2) Dr. Goldwaser rebutted each of Dr. Gallegos' objections, and (3) the additional information it presented in its exceptions had been available to it at the time it extended its COE to Surace.

On June 8, 2006, the Board issued its final administrative action adopting the findings of the Panel and finding that Fort Lee had failed to meet its burden of proof that Surace "is psychologically unfit to perform effectively the duties of a [p]olice [o]fficer." The Board noted that "the appointing authority had the information concerning [Surace's] arrest record and expungement prior to rendering its conditional offer of employment and it could have requested [Surace's] removal at that time on the basis of an adverse arrest record." The Board found persuasive the fact that Surace was serving as an adult corrections officer and had previously served as a juvenile correction officer without incident. Acknowledging the higher standards of conduct expected of a police officer, the Board observed that any appointment of Surace would require that he "successfully serve and complete his working test period as a Police Officer, which will give the appointing authority adequate opportunity to evaluate his suitability for and performance in the subject title."

The Board concluded that "[a]bsent any disqualification issue ascertained through an updated background check conducted after a conditional offer of appointment, [Surace's] appointment is otherwise mandated." The Board ordered that upon successful completion of his working test period, Surace "be granted a retroactive date of appointment to the date he would have been appointed if his name had not been removed from the subject eligible list." The present appeal followed.

Fort Lee asserts that the Board's decision was arbitrary, capricious, and contrary to law because the record before it demonstrated that Surace made false statements of material fact, falsified his application, and was deceptive in the selection process. Fort Lee also argues that even assuming the Board concluded that it waived any challenge to Surace's fitness for employment on the basis of character evidence because it negligently conducted the background check of Surace, the Board's order violated state law and policy, "which demands that police applicants pass a thorough and complete background check prior to appointment." As to this latter contention, it was not raised before the Board and we therefore decline to consider this point on appeal. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).

The scope of appellate review of an administrative agency decision is a limited one. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). We will not disturb a final decision from the Board unless that decision was "arbitrary, capricious or unreasonable." Ibid. Administrative action is arbitrary and capricious when the action of the administrative body is willful and unreasoning action, without consideration and in disregard of circumstances. Worthington v. Fauver, 88 N.J. 183, 204-05 (1982). However, in those decisions that may admit to at least two different opinions, "action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached." Ibid. Moreover, in our review of a decision from an administrative agency, we must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (alteration in original) (internal quotation mark omitted).

Applying these standards, we preliminarily observe that Fort Lee's exceptions to the Panel's recommendation primarily focused upon matters the Panel did not consider, namely, Surace's prior purported material misstatement of facts and falsification of his application. However, the issue before the Panel was limited to his psychological fitness to serve as a police officer. His prior arrests and purported drug use were discussed in both reports and were of particular concern to Dr. Gallegos. Dr. Goldwaser disagreed with the apparent weight Dr. Gallegos accorded to these matters, noting that the prior arrests had been years earlier, in Surace's late teens, and there was no evidence of any recent drug use. The Panel, after reviewing both reports and personally questioning Surace, also apparently rejected Dr. Gallegos' conclusions.

Further, at the time Fort Lee extended its COE, it was already aware of Surace's arrest and drug history. Additionally, at the time it sought removal of his name from the eligibility list, it also suspected that he had engaged in material misstatements in the application process, but nonetheless sought removal based solely upon the psychological recommendation that he was psychologically unfit.

Under these circumstances, the Board did not act in an arbitrary, unreasonable and capricious manner by limiting its consideration to the record that was before the Panel. Fort Lee points to no authority that permits the Board to consider matters not presented to the Panel as a basis to uphold its removal request. N.J.A.C. 1:1-15.1, governing the evidentiary decisions of administrative agencies, states in pertinent part: "[o]nly evidence which is admitted by the judge and included in the record shall be considered." Thus, limiting the basis of its decision to the evidence presented to the Panel is consistent with the process followed in administrative agency proceedings. See Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 206 (App. Div. 1999) ("To hold that the appointing authority, on appeal, is entitled to broaden the charges as determined on the local level, would be to surcharge the right to appeal with a cost which violates any decent sense of due process or fair play."); see also In re Hotel & Rest. Employees & Bartenders Int'l Union Local 54, 203 N.J. Super. 297, 343 (App. Div.), certif. denied, 102 N.J. 352 (1985), cert. denied sub nom., Gerace v. N.J. Casino Control Comm'n, 475 U.S. 1085, 106 S. Ct. 1467, 89 L. Ed. 2d 723 (1986) (holding that evidence relating to events which occurred after the date of a Casino Control Commission hearing was not relevant on appeal of the original disqualification decision); Borough of Ho-Ho-Kus v. Menduno, 91 N.J. Super. 482, 487-88 (App. Div. 1966) (holding generally in disciplinary matters, "[t]he review is restricted to the formal charges initially preferred against the police officer. There is no authority for amending the charges at the trial de novo so as to include new charges").

In summary, the Board properly declined to consider additional grounds for removal of Surace from the eligibility list submitted by the appointing authority as part of its filed exceptions to the Panel's recommendation. These grounds were never filed with DOP as a basis for removal, although the alleged facts supporting the additional grounds were known to Fort Lee prior to seeking Surace's removal from the eligibility list. While the Board limited its consideration to the evidence before the Panel, there was substantial credible evidence in the record to support the Board's determination. The Board's decision adopting the findings of the Panel was not arbitrary, capricious, or unreasonable and is affirmed in all respects.

 
Affirmed.

Although the footnote cites to N.J.A.C. 4A:4-6.1(a)(9), a reading of the statute reveals that N.J.A.C. 4A:4-6.1(a)(6) is the relevant regulation.

In the statement in lieu of brief, the Board advises that Fort Lee "has now brought a new action before [DOP] to disqualify Surace for falsification of his updated employment application, which is currently pending before the Board."

(continued)

(continued)

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A-6078-05T2

August 12, 2008