IN THE MATTER OF J.D. POLICE OFFICER CITY OF BAYONNE

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1271-20

IN THE MATTER OF J.D.1,
POLICE OFFICER (S9999U),
CITY OF BAYONNE.
_________________________

                   Argued January 31, 2022 – Decided February 23, 2022

                   Before Judges Sabatino and Mayer.

                   On appeal from the New Jersey Civil Service
                   Commission, Docket No. 2020-1999.

                   Amie E. DiCola argued the cause for appellant J.D.
                   (Fusco & Macaluso, PC, attorneys; Giovanna Giampa,
                   on the brief).

                   Debra A. Allen, Deputy Attorney General, argued the
                   cause for respondent New Jersey Civil Service
                   Commission (Andrew J. Bruck, Acting Attorney
                   General, attorney; Sookie Bae-Park, Assistant Attorney
                   General, of counsel; Debra A. Allen, on the brief).

                   Jeffrey J. Berezny argued the cause for respondent City
                   of Bayonne (Ruderman & Roth, LLC, attorneys; Jeffrey
                   J. Berezny, on the brief).



1
    To maintain confidentiality, we identify petitioner using a pseudonym.
PER CURIAM

      Petitioner J.D. (Doe) appeals from a November 27, 2020 final agency

decision by respondent Civil Service Commission (Commission).                  The

Commission denied Doe's application to reconsider or re-open his appeal,

challenging removal of his name from the eligibility list for a position with

respondent City of Bayonne (City) based on a psychological disqualification.

Doe contends the Commission's decision is arbitrary, capricious, and

unreasonable, and is not supported by the evidence. Based on the idiosyncratic

facts and circumstances of Doe's appeal, we affirm.

      The facts are undisputed. In August 2019, Doe's name was included on

the list of candidates eligible to become a City police officer. On January 3,

2020, the City's Police Department Planning and Training Unit notified Doe his

name would be removed from the list based on a psychological evaluation

prepared by the Institute of Forensic Psychology (IFP) on the City's behalf. The

IFP report deemed Doe psychologically unsuitable for a position with the City.

      Three days after being notified of his removal from the eligibility list, Doe

appealed to the Commission. In a February 7, 2020 letter, the Commission

notified Doe, "the [City] [was] required to submit a complete psychological

and/or psychiatric report which was the basis for [Doe's] disqualification . . .


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within twenty (20) days from the date of [the Commission's letter]." Pursuant

to N.J.A.C. 4A:4-6.5(e), Doe had ninety days from the date of his appeal to

submit his own psychological report, prepared by a New Jersey licensed

psychologist, explaining why he was psychologically qualified for the position. 2

However, nothing in the regulation tethered the ninety-days for submission of a

rebuttal psychological report to Doe's receipt of the IFP's report.

      Doe received the IFP report on March 17, 2020, more than twenty days

after the City was supposed to provide the document.            Doe contacted a

psychologist to prepare a rebuttal report and scheduled an appointment to be

evaluated on March 18. Due to the COVID-19 pandemic, six days prior to the

scheduled appointment, the psychologist postponed the evaluation indefinitely.

Doe then retained a different psychologist, Dr. Sarah DeMarco, who agreed to

evaluate him on March 26.

      After the March 26 evaluation meeting, Dr. DeMarco told Doe's attorney

she "needed additional documents in order to properly write a report for [Doe]."

Doe claimed the documentation was delayed due to the COVID-19 pandemic.

In an April 3, 2020 email to the Commission, Doe's attorney sought an extension



2
 The ninety-day period for Doe's submission of a rebuttal psychological report
expired on April 3, 2020.
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of time to submit a rebuttal psychological report due to the delay in obtaining

documents requested by Dr. DeMarco. The Commission agreed to a forty-five

day extension of the deadline for submission of Dr. DeMarco's report until May

21, 2020.

      On May 19, Doe requested another extension of the deadline to submit a

report because Dr. DeMarco sought certain hospital records to "properly write

her report."3   The Commission extended the deadline for Doe's rebuttal

psychological report another forty-five-days, until July 6, 2020. At this same

time, Doe also requested a 2018 psychological evaluation prepared by the IFP

related to his application for a position with the State Police. On August 3,

2020, the IFP advised it could not release the 2018 report.

      In an August 25, 2020 letter, the Commission informed Doe it closed his

appeal file. According to the Commission's letter, despite having been granted

a ninety-day extension to submit a rebuttal psychological report, Doe failed to

submit any report "refut[ing] the findings of the [City's] pre-employment

psychological examination."     In the absence of any counter psychological




3
  Doe requested his records from the hospital on March 30, 2020. However, he
did not receive the requested records until June 30, 2020
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evaluation and report, the Commission declined to take further action on Doe's

appeal.

      One and one-half months after the Commission closed the appeal, on

October 12, 2020, Doe filed a request for reconsideration. His request included

an October 6, 2020 psychological report from Dr. DeMarco.

      According to her October 6 report, Dr. DeMarco met with Doe on March

26 and October 1.     She conducted a psychological evaluation of Doe and

interviewed Doe's friends and family as part of her late submitted report. Dr.

DeMarco concluded "there is no compelling data that rises to a level of clinical

significance that would indicate [Doe] is not at least minimally psychologically

suitable for the position at this time." Dr. DeMarco opined "it is clear that [Doe]

is psychologically suitable to move forward."

      In requesting the Commission reconsider his appeal, Doe explained that

"COVID-19 create[d] an unprecedented situation in terms of getting medical

records."    Notably, Doe's two extension requests never mentioned Dr.

DeMarco's need to obtain the 2018 IFP report to complete her rebuttal

psychological report. Doe claimed his attorney made several requests to the IFP

in August 2020, to obtain its 2018 report relating to Doe's psychological




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evaluation for a position with the State Police.4 Doe also claimed only he would

suffer prejudice if the Commission declined to reconsider or re-open his appeal.

      The Commission deemed Doe's letter to be a request to relax the

requirements of N.J.A.C. 4A:4-6.5(e) for good cause and re-open his appeal. On

November 27, 2020, the Commission denied Doe's request. The Commission

explained the timeframes for submission of a psychological report to rebut a

report obtained by the appointing authority "were designed to facilitate the

opportunity for the parties to establish a contemporaneous record of an eligible's

medical or psychological condition at the time of appointment for the

Commission to consider."

      The Commission further explained the time period for filing a rebuttal

psychological report could be extended for good cause under N.J.A.C. 4A:4-

6.5(f) and Governor Murphy's Executive Orders signed during the COVID-19

pandemic. Pursuant to Paragraph 6 of the Governor's Executive Order No. 103,

the Commission "approved various emergency adoptions of temporary rule

relaxations and modifications to N.J.A.C. 4A with respect to timeframes

associated with administrative appeals." The Commission explained, "N.J.A.C.


4
  According to the record, the IFP could not release its 2018 report because the
document was the property of the referring agency.


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4A:4-6.5(e) was modified to include the good cause provision found in N.J.A.C.

4A:4-6.5(f)." According to the Commission, "[e]ffective April 9, 2020, the

regulation was modified and state[d] that '[t]he appellant may submit to the

[Commission] a report from a New Jersey licensed physician, psychologist, or

psychiatrist of his or her own choosing, which must be submitted within [ninety]

calendar days, which may be extended for good cause, of the filing of his or her

appeal to the [Commission].'"

      The Commission also explained the need to strictly enforce the

timeframes governing the psychological review process.         According to the

Commission, if "a candidate was improperly rejected for the position, the

remedy provided is a mandated appointment to the position with a retroactive

date of appointment for seniority and salary step purposes."

      In reviewing the good cause exception for relaxing the time requirements

for submission of Doe's rebuttal psychological report, the Commission found

Doe received two requested extensions – on April 3 and May 19 – because he

"provided good cause reasons for [those] initial extensions." Doe had ninety

calendar days, until July 6, 2020, to submit his report and "did not do so until

October 12, 2020 at which time he requested another extension to submit his

report for good cause."


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      The Commission stated it required good cause to grant a third extension

and consider Doe's appeal. The agency noted "under certain circumstances,

good cause could be established if an evaluation occurred prior to the due date

and, through no fault of the appellant, the report was issued late and not

forwarded to this agency."

      The Commission concluded Doe failed to establish such circumstances.

The Commission determined Doe had "sufficient opportunity to pursue his

appeal in light of the havoc that has been caused by the COVID-19 pandemic."

The Commission found Doe "failed to show good cause to further extend [the]

time period and accept Dr. DeMarco['s] report."

      The Commission also determined it would be prejudicial to the City and

any current police officers to allow Doe's appeal to proceed because "the remedy

provided to successful appellants in psychological disqualification cases is a

mandated appointment to the position with a retroactive date of appointment for

seniority and salary step purposes."    In the event a position for Doe was

unavailable, the Commission explained "the last employee hired must be

displaced."

      On appeal, Doe argues the Commission's decision was "arbitrary,

capricious, and unreasonable given constraints due to COVID-19." He seeks


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reconsideration of the Commission's decision and an opportunity to proceed

with his appeal regarding removal of his name from the eligibility list for a

position as a City police officer based on a psychological disqualification. We

disagree.

      We first address whether the Commission had the authority to re-open or

reconsider Doe's appeal. Administrative agencies have the "inherent power . . .

in the absence of legislative restriction, to reopen or to modify and to rehear

orders previously entered by it." 5 Duvin v. State, Dep't of Treasury, Pub. Emp.

Ret. Sys.,  76 N.J. 203, 207 (1978).          This power may be invoked by

administrative agencies upon a showing of "good cause." In re Van Orden,  383 N.J. Super. 410, 419 (App. Div. 2006).

      We find no flaw in the Commission's consideration of Doe's application

regardless of the nomenclature accompanying his request. Whether couched as

a motion for reconsideration or a motion to re-open an appeal, the Commission

correctly considered whether Doe established good cause for a third extension




5
   In addressing agency determinations, courts employ the words
"reconsideration" and "reopen" interchangeably. Compare Duvin v. State, Dep't
of Treasury, Pub. Emp. Ret. Sys.,  76 N.J. 203, 207 (1978) to Handlon v. Town
of Belleville,  4 N.J. 99, 106 (1950).


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of time to file his rebuttal psychological report and have the matter reviewed on

the merits.

      We next consider whether the Commission erred in denying Doe's

application to re-open or reconsider his appeal. Our scope of review of an

administrative agency's final determination is limited. Allstars Auto Grp., Inc.

v. N.J. Motor Vehicle Comm'n,  234 N.J. 150, 157 (2018). "An administrative

agency's final quasi-judicial decision will be sustained unless there is a clear

showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record." In re Herrmann,  192 N.J. 19, 27-28 (2007). The burden

of proving a decision was arbitrary, capricious, or unreasonable is on the party

challenging the agency action. Lavezzi v. State,  219 N.J. 163, 171 (2014).

      Here, Doe failed to make the required showing of good cause to proceed

with his appeal. Neither Doe nor Dr. DeMarco provided any explanation why

the rebuttal psychological report could not have been prepared before the

Commission's twice-extended deadline and the closure of Doe's appeal on

August 25, 2020.

      Dr. DeMarco evaluated Doe on March 26, 2020. Yet, Dr. DeMarco did

not prepare a written report until almost three months after the July 6 due date.

Significantly, Dr. DeMarco failed to provide a certification or affidavit


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explaining why she needed to meet with Doe a second time on October 1, 2020

or why she was unable to complete her report prior to July 6, 2020. 6

      Doe applied for and received two good cause extensions from the

Commission for submission of Dr. DeMarco's rebuttal report. He offers no

reason why he failed to request a third good cause extension until after the

Commission closed his appeal.

      Dr. DeMarco received Doe's hospital records on June 30, prior to the July

6 extended due date for her report. At a minimum, Doe could have requested

another good cause extension of the July 6 deadline. Alternatively, Dr. DeMarco

could have submitted a timely report with the information available to her and

reserved the right to supplement the report when additional information became

available.7

      Aside from finding Doe failed to present good cause for an extension of

time to submit a rebuttal psychological report, the Commission noted Doe's

request to re-open or reconsider his appeal could result in prejudice to innocent


6
   At oral argument, Doe's counsel stated Dr. DeMarco maintained a busy
schedule throughout the COVID-19 pandemic.
7
   Not only did Dr. DeMarco included such a caveat in her October 6, 2020
report, she also submitted the report without having reviewed the 2018 IFP
report to opine on Doe's psychological suitability for a position with the City.


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third parties, namely any police officer hired by the City after Doe's removal

from the eligibility list. 8 The Commission determined the City's current police

officers could be displaced and suffer resulting prejudice because "the remedy

provided to successful appellants in psychological disqualification cases is a

mandated appointment to the position with a retroactive date of appointment for

seniority and salary step purposes."

      We are satisfied the Commission appropriately weighed and considered

the potential prejudice to employees of the City's police department appointed

after Doe's removal from the eligibility list in denying Doe's application. In

fact, during oral argument, Doe's attorney agreed current employees in the City's

police department could be displaced in the event Doe's appeal was re-opened

and he was successfully declared psychologically suitable for a position.

      Having reviewed the record, applying these specific facts, we find no basis

to reverse the Commission's decision.         Doe failed to demonstrate the

Commission's determination was arbitrary, capricious, or unreasonable. The



8
   During oral argument, Doe's attorney agreed individuals hired after Doe's
removal from the eligibility list could be prejudiced if Doe succeeded on the
merits of his appeal. However, counsel asserted the prejudice suffered by Doe
outweighed the possible prejudice to any current officers in the City's police
department.


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Commission's decision that Doe failed to proffer good cause for a third extension

of the deadline to submit a rebuttal psychological report is supported by

sufficient credible evidence in the record.

      Affirmed.




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