Opinion
DOCKET NO. A-6219-12T4
03-02-2015
IN THE MATTER OF A.S., FIRE FIGHTER, CITY OF ELIZABETH
Stephen B. Hunter argued the cause for appellant A.S. (Detzky, Hunter & DeFillippo, L.L.C., attorneys; Mr. Hunter, of counsel and on the brief). Robert J. Lenahan, Jr., Special Counsel, argued the cause for respondent City of Elizabeth (William R. Holzapfel, City Attorney, attorney; Mr. Lenahan, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Civil Service Commission, Docket No. 2012-3341. Stephen B. Hunter argued the cause for appellant A.S. (Detzky, Hunter & DeFillippo, L.L.C., attorneys; Mr. Hunter, of counsel and on the brief). Robert J. Lenahan, Jr., Special Counsel, argued the cause for respondent City of Elizabeth (William R. Holzapfel, City Attorney, attorney; Mr. Lenahan, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
A.S. appeals from a final decision of the Civil Service Commission (the "Commission") upholding the decision of the City of Elizabeth (the "City") that A.S. is psychologically unfit to effectively perform the duties of a Fire Fighter, and, therefore, the City may remove his name from the list of eligible candidates for Fire Fighter (the "eligibility list"). We affirm.
We use initials to protect appellant's privacy.
We discern the following facts from the record. A.S. was on the City's eligibility list. As part of the selection process, the City directed Dr. Betty C. McLendon ("Dr. McLendon") to examine A.S. to determine his psychological fitness to be a Fire Fighter. Dr. McLendon concluded that A.S. showed a pattern of maladaptive functioning and demonstrated limited insight and poor judgment. She also found that he did not appreciate the consequences of his actions or express culpability for past mistakes.
Dr. McLendon emphasized that A.S. failed to take responsibility for a conviction for distribution of a controlled dangerous substance within 1000 feet of a school by admitting he participated in the crime but emphasizing the culpability of others while downplaying his own. Moreover, Dr. McLendon found that A.S. lost his driver's license after failing to pay or otherwise respond to a speeding ticket he received in 2011, and that he had been subject to debt collection actions. She also found A.S. to be arrogant, manipulative and insincere during the examination. Based on this evidence, Dr. McLendon determined A.S. was psychologically unsuitable for employment as a Fire Fighter.
As a result, the City requested the removal of A.S.'s name from the eligibility list. A.S., however, underwent a second evaluation by retaining his own expert, Dr. David J. Gallina ("Dr. Gallina"). Dr. Gallina conducted a battery of psychological tests and determined that A.S. was a young man who successfully rose above problems and improved himself in the course of his life. Dr. Gallina determined that A.S. demonstrated an ability to organize and control, and was motivated toward goal-directed behavior. Dr. Gallina offered an opinion that A.S. was psychologically fit to serve as a Fire Fighter.
Based on these conflicting psychological evaluations, the Commission referred the question of psychological fitness to the Medical Review Panel (the "Panel"), N.J.A.C. 4A:4-6.1, for its consideration and recommendation. The Panel considered the conflicting evaluations and A.S.'s answers to the Panel's questions. The Panel determined that while A.S. had overcome difficulties in the past, his overall pattern of poor decision-making and tendency to avoid taking full responsibility for his choices remained significant concerns. The Panel concluded that, when viewed in light of the job specifications, A.S. was mentally unfit to effectively perform the duties of a Fire Fighter. The Panel supported the request that A.S. be removed from the eligibility list.
A.S. appealed the Panel's decision to the Commission, by filing exceptions to its findings and determination. After considering the record before it, the Commission accepted the Panel's report and recommendation, and found sufficient evidence to support the Township's determination of unfitness. The Commission considered the duties and responsibilities of a Fire Fighter and concluded that the psychological traits identified by the tests and A.S.'s behavioral record related adversely to A.S.'s ability to perform the requisite duties. The Commission found A.S.'s additional submissions unpersuasive. It concluded that the City met its burden of proof that A.S. was psychologically unfit and that his name should be removed from the eligibility list. This appeal followed.
On appeal, A.S. argues that: (1) the Commission acted arbitrarily and capriciously; (2) the Commission failed to properly analyze or respond to any of the exceptions filed to the Panel's recommendations; and (3) his employment history, intelligence, initiative and recommendation establish that he is psychologically fit to be a Fire Fighter. We conclude from our review of the record that A.S.'s arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). However, we add the following.
The scope of our review of an administrative agency determination is limited. Circus Liquors, Inc. v Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We do not ordinarily disturb an administrative agency's determination 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 credible evidence. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562-63 (App. Div. 2002). Furthermore, an appellate court should defer to the expertise of an agency that is charged with responsibility to administer a regulatory scheme. In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).
As noted, given the conflicting evaluations concerning A.S.'s psychological fitness to serve as a Fire Fighter, the Commission properly referred the matter to the Panel. The Panel members have the expertise and experience necessary to review the reports and thereafter recommend a course of action to the Commission based on their assessment. The Panel's report describes in detail its reasoning and is supported by the record. The Panel reasonably explained why it found Dr. McLendon's report to be more persuasive than the report provided by Dr. Gallina. The Commission's decision to adopt and accept the Panel's recommendation is amply supported by the record.
A.S. argues that the Commission failed to undertake the steps, outlined in In re Vey, 124 N.J. 534, 538-40 (1991), required to validate psychological testing in the workplace, because the Commission failed to specify which of A.S.'s psychological traits disqualified him from service as a Fire Fighter. However, the Commission discussed in detail the skills and abilities required for the position as outlined in the job specification for Fire Fighter and considered A.S.'s poor decision-making and avoidance of responsibility for his choices in reaching the determination that the City met its burden of proof. We discern no valid grounds to set aside the Commission's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION