Docstoc

OAL DKT NO Rutgers Law Library Camden

Document Sample
OAL DKT NO Rutgers Law Library Camden Powered By Docstoc
					                                 State of New Jersey
                              OFFICE OF ADMINISTRATIVE LAW


                                                             INITIAL DECISION
                                                             OAL DKT. NO. CSV 1736-02
                                                             AGENCY DKT. NO. 2002-2011


PETER KRISTENSEN,
       Petitioner,
       v.
BOROUGH OF FAIR LAWN,
       Respondent.
___________________________


       James P. Patuto, Esq., for appellant (Galantucci & Patuto, attorneys)

       Sean D. Dias, Esq., for respondent (Scarinci & Hollenbeck, attorneys)

Record Closed: November 20, 2002                             Decided: January 6, 2003


BEFORE LESLIE Z. CELENTANO, ALJ:


                                 PROCEDURAL HISTORY


       This matter concerns the removal of appellant, Peter Kristensen, from his position
as a police officer with the Borough of Fair Lawn Police Department. In the Preliminary
Notice of Disciplinary Action dated July 13, 2001, appellant was charged with one count
of inability to perform duties and one count of other sufficient cause, pursuant to N.J.A.C.
4A:2-2.3. The specifications alleged that appellant may no longer carry a firearm, which
is a prerequisite to the performance of his job, by virtue of the results of a fitness-for-duty
examination, and, further, that appellant is unfit for duty and is a hazard to persons if
permitted to remain on the job, and, accordingly, that a suspension is therefore needed.


                            New Jersey is an Equal Opportunity Employer
OAL DKT. NO. CSV 1736-02


A hearing was held on November 9, 2001, before the appointing authority and the
charges were sustained.


      By Final Notice of Disciplinary Action dated November 27, 2001, appellant was
removed from employment effective November 30, 2001. An appeal of the matter was
timely filed with the Merit System Board and transmitted to the Office of Administrative
Law (OAL) on February 13, 2002, for hearing as a contested case pursuant to N.J.S.A.
52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. A Prehearing Order was entered on
June 25, 2002, following a prehearing conference. A hearing was held on August 20
and 21 and September 23, 2002, at the OAL in Newark, New Jersey. Posthearing
submissions were due on October 21, 2002, but that deadline was extended at
respondent’s request until November 6, 2002, with reply briefs due by November 20,
2002. On that date, the record closed.


                                         ISSUES


      1)     Whether respondent has proven the charge of inability to perform duties
(as a result of a fitness-for-duty psychological examination alleging to have determined
that appellant may no longer carry a firearm, which is a prerequisite to the performance
of his job), by a preponderance of the credible evidence.


      2)     Whether respondent has proven the charge of other sufficient cause (in
that appellant is alleged to be unfit for duty, is a hazard to persons if permitted to
remain on the job and suspension is needed to maintain safety, health, order and
effective direction of public services), by a preponderance of the credible evidence.


      3)     Whether the penalty of removal was justified and reasonable if a charge
or charges are sustained.




                                            2
OAL DKT. NO. CSV 1736-02


                                       TESTIMONY


       Testifying for respondent was Betty C. McLendon, Psy.D., who has been
employed with Comprehensive Psychological Services since 1982. She serves as the
associate director and is licensed both as a psychologist (since 1984) and a registered
nurse (RN). Dr. McLendon has a bachelor’s degree in nursing and a master’s degree
and professional diploma in psychology. She received a doctor of psychology degree in
1989. Dr. McLendon is certified as an RN in North Carolina, New Jersey and New
York, is certified as a school nurse, health teacher, school psychologist, and
principal/administrator, and is also certified as an addiction specialist and a
psychological evaluator for pre-employment screening of law enforcement candidates.
Her professional experience includes pre-employment screening for public safety
positions,   police   and   corrections,   and   also    post-employment   fitness-for-duty
assessments.


       Dr. McLendon characterized fitness-for-duty assessments as considering
whether officers can continue to safely perform the duties for which they were hired,
including whether they can carry a weapon.              She testified that pre-employment
screening assesses the traits and qualities applicable to duty, including mental,
cognitive and emotional functioning, and stability. A thorough background check is
conducted to determine what effect the individual’s background would have on future
behavior. Dr. McLendon has appeared before medical review boards approximately
thirty times, offering her opinion when an individual was found unfit for duty. She has
also testified at numerous OAL hearings regarding post-employment issues, to explain,
review and/or defend her findings in psychological evaluations, generally on behalf of
municipalities. She has also testified at approximately twenty civil service department
hearings. Dr. McLendon performs consulting work for more than forty public safety
departments, including county departments statewide, and provides consulting
regarding pre-employment screening, post-employment evaluation, critical incident
debriefing, stress management and psychotherapy, and provides consulting services
with regard to planning in the various departments. She is familiar with the duties of
police officers and is also familiar with the civil service job specifications for police



                                             3
OAL DKT. NO. CSV 1736-02


officers.   The uniqueness of a police officer’s duty has to do with safety issues,
preserving order, protecting life and the use of firearms.


       A job element list derived from the California P.O.S.T. Commission job task
analysis was provided (R-2), which lists the job elements for public safety officer
positions. Dr. McLendon’s examination includes, by interview or direct assessment,
questions or situations where an officer could be observed in all of the listed areas, to
determine whether he or she is qualified or fit based upon these elements, which are
identified as qualities central to performance of public safety positions. The testing
procedure was developed by a California firm that does public safety evaluations.
When doing a fitness-for-duty exam, Dr. McLendon does not focus on the medical
diagnosis, but rather assesses personality traits to determine whether a person is fit to
perform his or her duty. Her exam is not a medical evaluation and she does not issue
diagnoses, but rather addresses the fitness of the individual to perform a task.


       On cross-examination, Dr. McLendon said that she does not have any board
certifications and that there are no board certifications of psychologists.


       Dr. McLendon currently sees three police officers in her practice out of a total
caseload of approximately twenty-five private patients.        One of those officers was
referred by the municipality in which he was employed, the other two referred
themselves. Dr. McLendon indicated that there are no studies that address medical
diagnoses for fitness for duty.      The studies she relies on include the American
Psychological Association (APA) Standards and the APA fitness-for-duty elements as
listed in Exhibit R-2. She referenced the studies that underlie the APA, but could not
name them.


       Dr. McLendon stated that she was asked to do a fitness-for-duty exam of
appellant. The letter request (R-3) was sent by Rodman Marshall, the chief of police.
The chief indicated that appellant had been involved in numerous work-related
incidents that raised questions for the Borough as to whether appellant could uphold
the standards of the department and continue in his present duty. Those incidents
were ten internal affairs (IA) complaints.       Many were motor vehicle accidents and

                                             4
OAL DKT. NO. CSV 1736-02


appellant was sent for remedial training. The chief included with his letter a sick leave
request (R-4) purportedly prepared following appellant’s telephonic request for leave,
and indicated that appellant would be on sick leave pending the evaluation. At that time
he was not suspended, but rather requested sick leave, indicating that he was
“stressed.”   Dr. McLendon testified that she reviewed the list of sustained charges
contained in the chief’s letter (R-3) and also reviewed the unsustained charges, and
opined that they spoke to a behavior pattern and the work performance of the appellant.
She did not review the unsustained charges to prove their truth or falsity, and in other
cases where she has conducted fitness-for-duty exams, she has reviewed both
sustained and unsustained charges.


       Dr. McLendon’s report was dated July 11, 2001 (R-5), based upon an evaluation
of appellant conducted on July 6, 2001.          As part of that evaluation, appellant’s
psychosocial history was reviewed as a means of getting to know appellant’s past
functioning and development, psychologically and socially. Appellant’s psychosocial
history found that he is a single police officer assigned to patrol. It lists his problems,
questionable social situations and the retraining he underwent. Additionally, his prior
work performance at other places of employment is reflected.              The history of
performance in appellant’s current job indicates, in Dr. McLendon’s view, problems with
lateness, demeanor, violation of rules, and use of excessive force, and also
questionable social situations. Dr. McLendon discussed with appellant the manner in
which the exam would be conducted and appellant indicated that he wanted to tape-
record the entire process. He was asked not to, however, and when unable to reach
his attorney, he determined to go ahead with the evaluation without recording it.


       Dr. McLendon observed that appellant was flippant, and made an effort to
appear carefree, trading stories with another officer who was also awaiting evaluation
on that date. Her clinical findings indicated that appellant had numerous symptoms, the
pattern and magnitude of which, in her view, qualify him as a positive clinical case. She
indicated that he presented a pattern indicating emotional and psychological distress at
a level requiring medical attention.    His somatization level, the extent to which his
emotional symptoms affect his physical functioning, was above average in level and
response, suggesting depression, and high anxiety, at a level sufficient to be termed

                                             5
OAL DKT. NO. CSV 1736-02


emergence of psychiatric disorder, which Dr. McLendon indicated is a condition of
serious magnitude.


       Dr. McLendon performed a series of tests on appellant. The SCL 90 revised test
was administered and nineteen items on a checklist were responded to. The Millon
test, which conducts personality assessment, was also administered.


       The Millon test results revealed findings indicating a dysfunction of mild to
moderate severity, indicating antisocial personality traits, negativistic personality
features, and schizotypal personality features. On a profile scale, this was deemed to
be significant.   Dr. McLendon felt that the Millon test results revealed significant
emotional dysfunction and interpersonal alienation. Other findings include appellant’s
high susceptibility to Axis I clinical diagnosis such as anxiety or depression. Appellant
agreed during his evaluation that he had a high level of anxiety and indicated that he
was being treated by a neurologist for a medical condition and was taking Prozac and
Xanax. He said that Dr. Scrimenti, his neurologist, had diagnosed and was treating him
for an esophageal ulcer and panic disorder. Dr. McLendon spoke to Dr. Scrimenti in
conjunction with her evaluation.


       Dr. McLendon also found that appellant struggles with grief over his father’s
death in 1999 and also has job-related concerns relative to his perceived treatment by
supervisors as unfair. Appellant knows of his image within the department and denies
that his image or his social activity should be a concern to the department. He believed
that the department was unfairly critical of his participation in a motorcycle club and felt
that the department’s opinion would hurt him in his job. He felt that some of the citizen
complaints made against him were from individuals who did not want to be arrested or
have family members arrested, and accordingly they filed complaints against him.


       Appellant was described as anxious, weary, in a depressed mood, having
emotional discontrol, exhibiting poor judgment and decision-making, and lacking an
ability to work cooperatively and exercise proper communication.               In summary,
appellant was determined to be unfit for duty at the time of the evaluation.



                                             6
OAL DKT. NO. CSV 1736-02


       Dr. McLendon felt that the anxiety, depressive mood and unpredictability greatly
affected appellant’s judgment, his ability to carry a weapon and his response to the
community and to other officers.      She recommended psychotherapy treatment and
removal of weapons, as well as medical follow-up. Recognizing what she believed to
be an acute level of anxiety and stress, Dr. McLendon recommended therapy for four to
six weeks, or as determined by a therapist, with feedback to her to address fitness for
duty again.


       A psychosocial history (R-6) was completed by appellant on July 6, the same day
as the exam.     Dr. McLendon focused on certain questions and answers, including
question 36, where appellant indicated that he found his job “unenjoyable”; questions
52 to 54, relating to alcohol and drug use in appellant’s past; and question 87, wherein
appellant described his mental state as tense, worried, fearful, angry, unenthusiastic,
confused, disappointed, irritable, scared, nervous, happy and distrustful.


       The Millon test assesses an individual’s personality, and on page 3 of Exhibit R-7
the bars denote the profile of the individual as compared to the “norm.” The norm is 60,
and above 60 is clinically significant; a score of 75-84 indicates clinical traits that would
reference the diagnostic scale reflected on the right and cause clinical concern.
Appellant’s score exceeded 75 on the “depressive” scale. Scores between 60 and 75
were reflected in the scales of antisocial, sadistic, negativistic, schizotypal, paranoid,
bipolar, alcohol dependence, thought disorder and delusional disorder.


       Dr. McLendon described appellant’s Axis II personality patterns, i.e., the way he
thinks and feels and his overall pattern of functioning, as depressive, antisocial,
negativistic, and schizotypal.


       Dr. McLendon indicated that the SCL 90 (R-8) is used to identify levels of
distress and symptoms as presented by the client.           In Dr. McLendon’s view, the
interpretative report and test findings reflected a pattern and magnitude of symptoms
that showed appellant to be a positive clinical case.




                                             7
OAL DKT. NO. CSV 1736-02


       Dr. McLendon completed a second examination of appellant on October 17,
2001, and issued a report on October 30, 2001 (R-9). The second examination was
conducted because the initial report suggested that a follow-up would be done.
Accordingly, the second evaluation was conducted to see if fitness was achieved or if
issues remained. Dr. McLendon knew that appellant had seen David Gallina, M.D. (“D.
Gallina”) and Nancy Gallina, Ph.D. (“N. Gallina”) after her second evaluation of him.
She sent a request for information form (R-10) to N. Gallina. N. Gallina indicated a
diagnosis of 309.28, which she believed was causally related to appellant’s suspension.
According to the diagnostic manual, code 309.28 references an “adjustment disorder
with mixed anxiety and depressed mood.” Exhibit R-10 also reflects the dates appellant
consulted with N. Gallina and reflects N. Gallina’s recommendation that appellant be
treated for three months and then reevaluated. Those comments were made by her on
October 24, 2001.


       Dr. McLendon testified that she found the findings in D. Gallina’s report
conflicting.     D. Gallina    “strongly   recommended”    outpatient   counseling   with
psychotherapy, but found no symptoms, traits or features presented, and Dr. McLendon
was unable to get insight from D. Gallina’s report. In Dr. McLendon’s reevaluation she
reviewed the SCL 90 verbally to determine appellant’s current level of symptoms. On
the symptom checklist she found anxiety and depressed mood and felt that it was
clinically unrealistic that these major symptoms would have been addressed to the
extent that would permit appellant to perform his duties. Appellant’s impulse control
issues and inappropriate behavior weaknesses continue in Dr. McLendon’s view, and
the clinical data of both D. Gallina and N. Gallina, as well as Dr. McLendon’s findings,
do not support sufficient gain in appellant’s social and emotional insights to support his
return to the job. Dr. McLendon found that appellant continued to be unfit for duty
based upon her clinical assessment and the information presented by D. Gallina and N.
Gallina. Appellant continued to show a high level of symptoms and a behavior pattern
that identifies him as an individual with clinical and behavioral problems that render him
unfit for duty as a police officer.


       On cross-examination, Dr. McLendon acknowledged that there is nothing to
prevent a police officer from functioning properly and also attending psychotherapy.

                                             8
OAL DKT. NO. CSV 1736-02


Additionally, she was provided with appellant’s psychological report regarding fitness-
for-duty pre-employment from 1995, where appellant was found to be fit for duty. She
indicated, however, that the long-term problems that apparently had not surfaced by
then were present in the background. Dr. McLendon indicated that she reviewed the
1995 report and in preparing her July 11, 2001, report relied on the narrative provided
by the chief of police in listing appellant’s psychosocial history. In her belief, the job-
related problems showed a pattern of behavior. Dr. McLendon’s report references the
information received by the chief, including the statement that appellant “has
surrounded himself in a questionable social situation which would question his integrity
and commitment to upholding the law.” Dr. McLendon believes this comment was
made by the chief because of appellant’s membership in a motorcycle club and that it is
reflective of appellant’s attitude about rules, social judgments and a pattern of
behavior.1 When asked to articulate what else about appellant indicates problematic
social relationships and/or social judgment, Dr. McLendon referred to the list on page 3
of her report. The list consists of answers provided by appellant to a few of the 175
questions asked on the Millon test as follows:


         9       I often criticize people strongly if they annoy me
         14      Sometimes I can be pretty rough and mean in my relations with my
                 family
         34      Lately, I have gone all to pieces
         83      My moods seem to change a great deal from one day to the next
         87      I often get angry with people who do things slowly
         96      People have said in the past that I became too interested and too
                 excited about too many things
         134     I sometimes feel crazy-like or unreal when things start to go badly
                 in my life

         Dr. McLendon acknowledged that the baseline used in the Millon test is for the
general population and not for police officers, but indicated that the test is not designed
to elicit problems, only a personality type. The highlighted answers present concern
and indicate emotional distress/tensions.


         Dr. McLendon indicated that a trait is not the same thing as a disorder. Rather,
traits are symptoms and one part of an overall picture. She explained that a feature is

1
    Appellant has since resigned from the motorcycle club.

                                                 9
OAL DKT. NO. CSV 1736-02


something less than a trait. She also said that appellant presented issues of suspicion
or paranoia, and she agreed that appellant had reason to be suspicious. Her concern,
however, was the pattern of his behavior and her conclusions were based in part upon
the way appellant answered the questions. She looked at appellant’s total picture and
his behavior pattern. Dr. McLendon felt that appellant was “highly susceptible to an
Axis I clinical disorder,” which she described as an emotional disorder. She indicated
that Dr. Scrimenti had previously diagnosed appellant with panic disorder and an ulcer,
although Dr. Scrimenti had only seen appellant once.          The panic disorder was not
believed to be sufficient reason to remove appellant as a police officer, and he was
prescribed Xanax on an as-needed basis, as well as Prozac. Appellant indicated to
Dr. McLendon that he did not take the medication regularly. Although N. Gallina termed
appellant’s problem causally related to his suspension, appellant’s answer to question
number 89 on the Psychological/Social History (R-6) indicates that appellant believed
he had experienced moodiness and anxiety for the previous two to five years.
Dr. McLendon indicated that her evaluation “only scratched the surface” of the total
picture, because while therapy can reveal the full picture, a one-day evaluation cannot.
Dr. McLendon felt that the goals of the recommended therapy for appellant were not
clearly defined and, therefore, it was not clear what was being accomplished, and this
would make it difficult for the therapist to offer some suggestion as to when appellant
could return to work. N. Gallina’s report indicates that it is “not clinically anticipated and
this patient will have job-related difficulties,” an opinion Dr. McLendon disagrees with.


       The results of the Millon test (R-7), which identifies features and traits, revealed
to Dr. McLendon that appellant appears to fit the Axis II classifications, including
depressive personality traits, antisocial personality traits, negativistic (passive-
aggressive) personality features, and schizotypal personality features, however, there is
no Axis II diagnosis.      No distinct Axis I symptoms were revealed either.             She
acknowledged that the responses listed on page 3 of her report were the only answers
that were noteworthy out of 175 questions. The recommended treatment included brief
or extended therapeutic methods that could manage the appellant’s difficulties.
However, it was felt that his acute symptoms needed to be stabilized first. The results
of the SCL 90 (R-8) revealed that appellant’s level of depression and anxiety are
elevated and clinical in nature, and that his level of anxiety is consistent with the

                                             10
OAL DKT. NO. CSV 1736-02


emergence of a psychiatric disorder or condition of serious magnitude. Dr. McLendon
acknowledged that there is nothing factored into the test for police officers, who have
more stressful jobs than the general population. Included among the questions was
whether appellant experienced lower back pain, which he indicated he did; however,
even though his back pain was a result of an external factor, an earlier automobile
accident, that response was factored into appellant’s overall score, as was the
response relative to his poor appetite, which he attributes to his ulcer.     The traits
revealed by that test are symptoms, but do not denote an actual condition and the test
does not offer a diagnosis.    Dr. McLendon indicated that she does not utilize the
Personality Assessment Inventory (PAI) test, which D. Gallina performed, because she
believes it deals with extremes only.     Similarly, she does not use the Hamilton
Depressive Inventory (HDI) test, which D. Gallina used, because she prefers the Burn
test.   The IVA Continuous Performance test and the Sentence Completion and
Drawings, which D. Gallina had appellant complete, are recognized as valid tests.
Dr. McLendon felt, and reflected in her October 30, 2001, report (R-9), that appellant
was at high risk for impulsive antisocial behaviors. Dr. McLendon characterized these
views as her conclusions, articulating that appellant’s character and behavior traits
make him unable to perform the duties of a police officer and could manifest
themselves in inappropriate behavior. She agreed that she was not making a medical
determination and had not made a finding of a disability on the part of appellant. She
agreed there was no medical condition to preclude him from performing his duties until
the manifestations come forward, and if they did, at that time a medical diagnosis could
be made.    However, she indicated that she can give her opinion based upon past
behavior and current symptoms, and that diagnoses can be made depending on an
individual’s pattern of functioning. She made no diagnosis here, but indicated that she
reached her conclusions based on the background data, past performance, level of
discontrol, level of judgment and insight, symptoms, traits and features presented, and
all of these things lead her to believe that appellant is not suitable to continue as a
police officer. She believes that the pattern would persist in the form of maladaptive
behavior, and indicated that in her opinion appellant could not work as a police officer
while having psychotherapy.    This is notwithstanding her initial recommendation for
therapy and re-evaluation.



                                           11
OAL DKT. NO. CSV 1736-02


       Testifying for the appellant was David J. Gallina, M.D. (heretofore and
hereinafter referred to as “D. Gallina”).


       D. Gallina has been a licensed physician since 1971 and is currently in private
practice in Wyckoff, New Jersey. He is board certified in psychiatry and neurology and
also has two other board certifications. He teaches the full spectrum of psychiatry at
Mount Sinai and at Cornell Medical, and maintains a private general psychiatric clinical
practice in which he treats young adults, children and adolescents. His wife is Nancy
Gallina, Ph.D. (heretofore and hereinafter referred to as “N. Gallina”), who is a
psychologist and also has a clinical practice. They both treat police officers in their
practices and do consultations and treatments at the request of Bergen Risk
Management, an HMO for assorted public employees and city and municipal police
officers. D. Gallina conducts screening of police officer applicants, and evaluation of
police officers in a variety of circumstances. He has previously qualified as an expert in
superior court, in federal court in Newark and in federal court in Manhattan, as well as
in other New York courts. D. Gallina was admitted as an expert in psychiatry.


       D. Gallina first saw the appellant in August 2001, when appellant was referred for
an evaluation for fitness to return to duty as a police officer.       At the time of his
evaluation of appellant, D. Gallina had in his possession Dr. McLendon’s reports.

       In preparing his August 27, 2001, report (P-2), D. Gallina reviewed various
records, including the report of Dr. McLendon of July 11, 2001. He reviewed appellant’s
history, and administered the nine tests set forth on page 2 of his report. The tests
were described as generalized tests with no input from the administering physician, and
are normed to the general population. D. Gallina asserted that the nine tests listed are
accepted tests in psychiatry.


       The results of the tests indicate that there is no specific psychopathology or
psychiatric illness attributable to appellant.   Appellant’s scores were described as
normal. The tests were scored on a computer, which generated the results and issued
a report. D. Gallina did not print the results of the testing, since all were normal. Based
upon the test results, D. Gallina determined that appellant’s current GAF (Global


                                            12
OAL DKT. NO. CSV 1736-02


Assessment Functioning) is 80, with a score of 0 representing a non-functional
individual and a score of 100 representing an individual described as “not having a care
in the world.”   A score of 80 indicates that the tested individual is facing certain
stressors and is coping the way people normally cope. It indicates no occupational
functional loss. Appellant’s results indicate that he had certain symptoms in reaction to
the stress in his life, including his problems at work, his suspension from his job,
especially without pay for a long time, and the fact that his plans to marry and buy a
home were on hold. These problems have placed acute stress on him and his life, and,
accordingly, D. Gallina believes that appellant does need some treatment. As reflected
in D. Gallina’s report (P-2), he felt there was no psychiatric reason why appellant is unfit
to be a police officer, and that from a medical point of view appellant did not present
clinical evidence to declare him unfit. Appellant either meets the criteria medically or
does not, and in this case there is an absence of the necessary symptom complexes,
making it impossible to declare him unfit.


       D. Gallina testified that he has many times in the past found police officers unfit
for duty.


       D. Gallina asserted that in order to be declared unfit, an individual must have:


 1)    A level of psychiatric symptomotology to give a patient a psychiatric diagnosis.
       This alone is not enough, however, and many individuals are working as police
       officers while on medication.

 2)    A psychiatric diagnosis that negatively impacts on the individual’s level of
       functioning so that individual is impaired and unfit for duty.


       Both of these elements are required in order to declare an individual unfit, and
neither is present in appellant’s case. With treatment, a police officer who is unfit could,
in D. Gallina’s view, be on temporary medical leave during treatment and then could
return to full employment.      D. Gallina believed that appellant’s difficulties could be
addressed in therapy and that with treatment, his prognosis was good, and he could
continue as a police officer.


                                             13
OAL DKT. NO. CSV 1736-02




        D. Gallina testified that at some point after the test results were generated, his
computer crashed and he lost all of his data.         Accordingly, appellant returned to
D. Gallina’s office in November, and retook all of the tests and the results were the
same.


        The Personality Assessment Inventory II test, which D. Gallina administered,
screens out and flags problems. Appellant’s results came up entirely normal when
compared against the normal population. The test has validity scales to show if an
individual is “faking” to try and generate either good or bad results, and also to show if a
person is trying to skew the results. Appellant’s validity indices were normal, indicating
that the test results were valid, and revealed nothing significant. Appellant’s diagnosed
“adjustment disorder” is something that goes along with extreme stress. None of the
twenty-seven critical item endorsements were present in appellant’s results, which were
determined to be entirely normal.


        The Axis I 309.9 adjustment disorder referenced by Dr. McLendon (which
D. Gallina indicated could be mixed emotions, anxiety, and/or depression), typically
lasts six months or less unless the source of the stress continues, in which case it could
last for longer than six months. D. Gallina felt that appellant’s stress was all job related
as a result of having been terminated and having no income, and also the
administrative conflicts.   None of this, in D. Gallina’s view, prevents appellant from
performing his job. The respondent may feel that there are administrative reasons to
suspend or declare the appellant unfit for duty, but there are no medical reasons to do
so.


        Appellant’s scores on the IVA Continuous Performance Test were normal and
above average. His validity scores were also normal and auditorily and visually he
showed no significant distractibility.


        With regard to the Hamilton Depression Scale, appellant again achieved normal
scores and showed a low-level depression symptomotology. He was scored versus the
normed population and psychiatric patients and his scores were normal as against

                                            14
OAL DKT. NO. CSV 1736-02


each. There was no endorsement of major depressive items and the scores revealed
appellant coping with stress and reacting to it, but not to a degree that would render him
unfit.


         D. Gallina referenced Dr. McLendon’s reliance on the Millon test and the SCL 90
test, which she utilized to conclude that appellant had certain symptoms. D. Gallina
opined that all tests have their strengths and weaknesses, but that he never uses either
of the tests that Dr. McLendon used to screen for the normal population. In his view,
the Millon test overemphasizes an individual’s symptoms for psychopathology. It has
only 175 questions for 24 different clinical scales (symptom complexes, or diagnoses),
and therefore only 7 questions per scale, which is far too few in his view. He articulated
that giving a few wrong answers will result in a pathology being found. Also, any one
question will be scattered across a few scales. A single question cannot be used just
for one scale, and this makes the test very sensitive to psychopathology.             Almost
everyone will come up with traits and diagnoses when taking this test. If one question
is answered wrong, it can cut across several scales (scattered), resulting in numerous
traits and possible diagnosis.       Furthermore, D. Gallina testified that of the 175
questions, only 39 are appropriately answered “false.” The rest all require an answer of
“true.” In his view, people want to answer “true,” and he referred to this test as a “yea-
favored test.” Even if an individual has only the slightest hint of a certain symptom, he
will answer “true” because if the question asks whether something occurred and it only
occurred once, “true” is the answer an individual will give. The nature of the test is that
it is skewed towards finding pathology; it is extremely sensitive to finding traits. The
test, in D. Gallina’s view, is good for the psychiatric population where there are a great
many symptoms which could not be pinpointed otherwise. It is geared to making a
DSM IV2 diagnosis. When there is a psychiatric patient (inpatient or outpatient) who is
known to be ill, and a diagnosis needs to be made, D. Gallina believes the Millon test
can be helpful.      He felt that appellant is a normal functioning individual being
administratively screened to see if he has any problem that would prevent him from
working as a police officer. The Millon test is used to ask the question, “Is the individual
psychologically ill?” and if the answer is in the affirmative, the next question is, “Is he so




                                             15
OAL DKT. NO. CSV 1736-02


functionally impaired that he could not function as a police officer?” In this test the
lower cutoffs indicate a normal individual and the upper cutoffs indicate a significant
psychopathology, yet the middle range contains only nine questions and gives traits or
suggestions of what might be there.        For example, Millon question 9 requires an
individual to answer true or false to the statement, “I often criticize people strongly when
they annoy me.” If the answer given is true, that carries great weight in the Millon test.
Question 14 on the Millon test asks for a true or false answer to the following statement:
“Sometimes I can be pretty rough and mean in my relations with my family.” When
enough of these statements are flagged with true answers, all of the symptoms raise
their heads, in D. Gallina’s view. With regard to question 34, which states, “Lately I
have gone all to pieces,” an individual may mean one thing when answering it, yet the
test interprets it another way. The test does not distinguish between problems in life
and psychiatric illness (internal problems versus psychiatric illness). Appellant’s results
nevertheless were in the middle range, and he showed many traits, but no psychiatric
illness (no diagnosis). D. Gallina observed that even with this faulty test, no diagnosis
emerged, merely traits. Appellant is on a vague middle ground, having some stress,
some traits, and some symptoms, none of which renders him unfit to be a police officer.


       Between D. Gallina’s initial evaluation in August 2001 and his second round of
testing on November 7, 2001, appellant was seen by N. Gallina in September, October
and November and the results of D. Gallina’s testing were discussed with N. Gallina.


       With regard to Dr. McLendon’s diagnosis of a personality disorder, D. Gallina
opined that this describes a life-long affliction, which appellant has no history of.
Additionally, appellant was screened for personality disorders when he was hired by the
police department, and, accordingly, those tests, which are fairly thorough, must have
yielded satisfactory results. In D. Gallina’s view, the combination of a lack of history
and the pre-employment screening testing suggests an acute problem in this matter
related to appellant’s job situation.




2
 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (American Psychiatric
Association, Washington, D.C. 1994).

                                            16
OAL DKT. NO. CSV 1736-02


       With regard to Axis III, Dr. McLendon found esophageal difficulties attributable to
appellant’s esophageal ulcer. In the interest of completeness, D. Gallina addressed
appellant’s physical issues and also used the MCL, indicating that the symptoms
checklist is useful if the test is given several times; given just once it is susceptible to
how the tested individual feels that particular day. Used over time, for example, every
few weeks in treatment, the results are more useful. If given to a police officer two
weeks apart, the answers will vary, and a one-day snapshot is viewed as unreliable by
D. Gallina.


       A “trait” on the Millon test means that the patient has endorsed enough questions
to put him in a borderline vague area, indicating that the patient “may” have certain
problems but they are not sufficient for a diagnosis. D. Gallina asserts that there is
nothing in the literature to indicate that traits mean an individual cannot function. The
Millon test is used to obtain diagnoses of psychiatric patients and is not appropriate to
determine the fitness of a police officer.


       When seen by N. Gallina, appellant expressed concerns regarding his future
employment and his financial status.         The treatment sought by appellant was
assistance in reducing stress, and identification of the issues and attempting to resolve
and alter his behavior so he could work on the job more efficiently. N. Gallina felt that
the prognosis for appellant was good and acknowledged that appellant’s problems and
difficulties were treatable and could be treated while he was working.


       D. Gallina’s opinion as of the date of his testimony was that appellant was fit for
duty medically, with no psychiatric reason that impairs his functioning to a degree that
prevents him from being a police officer.            Appellant has no clear level of
pathology/functional impairment and his difficulties do not reach the level of determining
him unfit for duty. Appellant is treatable on an outpatient basis, and that treatment
would make him a better police officer and a better individual.            D. Gallina was
unwavering in his testimony that appellant could work as a police officer and be treated
at the same time. He did not prescribe medication for appellant, indicating that nothing
interfered with the appellant’s functioning to such a degree as to require
pharmacological intervention. Appellant does not need a drug to help him function.

                                             17
OAL DKT. NO. CSV 1736-02




       On cross-examination, D. Gallina agreed that in cases where a police officer
passes a pre-employment screening, it could be determined later that the individual is
unfit for duty, and typically this involves something that happens in the line of duty.
D. Gallina could not recall a case where an individual was found to be unfit after
passing a pre-employment screening due to a personality disorder he is alleged to have
had.   D. Gallina was asked about a sick call report (R-4) wherein appellant signed
himself out on June 27, 2001, two weeks before his suspension without pay. D. Gallina
does not recall if appellant told him about this, but believes that the predominant stress
in the appellant’s life at that time was related to his job.


       At the time of his examination of appellant, D. Gallina knew that appellant had
been declared unfit for duty by Dr. McLendon and knew that appellant was suspended
without pay. D. Gallina was questioned about some of the tests administered, including
the Millon test, which had been given to appellant by Dr. McLendon, and asked whether
he had seen the answer to question 87, wherein appellant answered “true” to the
statement, “I often get angry with people who do things slowly.” D. Gallina indicated
that he had seen the test and question, and felt that appellant probably answered true
because, unless the statement is totally false, i.e., it has never happened at all, “true” is
the correct answer. With regard to the statement contained in question 139 of the
Millon test, “I’m very good at making up excuses when I get into trouble,” D. Gallina felt
that a great many people would answer “true” to that statement, which emphasizes
pathology in most of the population.


       Although the data from the August reports were lost, D. Gallina was able to
prepare his report without the data because all of the results were normal. The sole
purpose of repeating the tests in November was to regain the data. D. Gallina never
prepared a second report based on the second set of tests. He indicated that if there
was a medical reason why appellant was unfit, he would use the reports to back up this
determination, but otherwise did not need the reports because the results were all
normal. When D. Gallina concluded his August testing, he found no diagnosis on Axis I
or Axis II.



                                              18
OAL DKT. NO. CSV 1736-02


       In the data submitted by N. Gallina (R-10) on October 24, 2001, the diagnosis
noted was 309.28, which is “mixed anxiety and depressed mood.” N. Gallina had a
copy of D. Gallina’s report and so she knew at that time that he had made no diagnosis.
N. Gallina’s recommendation was that appellant be treated for three months and then
re-evaluated. Appellant did not receive treatment as recommended, however, although
he was contacted and spoken to, because he had no medical insurance and could not
afford to pay for the sessions.


       The Personality Assessment Inventory (P-3) reveals on page 7 that appellant’s
interest in and motivation for treatment is somewhat below average, and is described as
less than that of individuals not in therapy, and considerably less than that of individuals
who are in therapy. D. Gallina confirmed that, as is reflected in his report (P-2) on page
14, appellant “does not appear to be highly motivated to participate” in treatment, but
the treatment is recommended nevertheless. In D. Gallina’s view, appellant did not
consider himself mentally ill, and did not feel as though he needed treatment, but did
agree that he was having some difficulties, which he felt were administrative and not
psychiatric in nature. D. Gallina and N. Gallina each felt that appellant could benefit
from counseling. D. Gallina said that appellant’s problems as a police officer are not
extraordinary, but that without participating in some therapy, appellant may have further
administrative difficulties and conflicts.    By administrative difficulties, D. Gallina
intended to suggest tardiness, internal affairs incidents (such as car accidents) and
possible difficulties regarding a motorcycle club. Appellant was felt to have had trouble
managing his difficulties, but from a purely psychiatric point of view, there was no
reason for him to leave the police department. Appellant had a series of little problems,
which added up and led to his suspension. Appellant was felt to be treatable and able
to learn to manage his difficulties, and with treatment could be back on the job.
Appellant has six years invested and needs to make some changes and adjustments,
as does the department, which has an investment in him. Appellant’s problems with his
superiors were believed by D. Gallina to have grown, but could be worked through with
appropriate treatment, which is the best resolution for these issues. Appellant was felt
by D. Gallina to need to develop further insight into the nature of his job-related
difficulties, but he has no insurance and no income to pay for such treatment.



                                             19
OAL DKT. NO. CSV 1736-02


       D. Gallina does not use the SCL 90 test for this type of evaluation or fitness-for-
duty exam because the test is subjective, in that the patient “checks off” the results.
Ideally, the test should be given every two weeks, to see if the patient feels that he or
she is improving. D. Gallina felt that the test cannot be administered once and result in
a diagnosis or fitness-for-duty determination, because it would be based on one
snapshot of the patient. He does not use this test if he is seeing a patient just once
because it only reveals what the patient feels at the precise time that he or she is taking
the test. D. Gallina reasserted that there was no diagnosis that appellant was unfit for
duty, and said that his difficulties involved administrative duties related to the job and
stress related to the suspension, and were not due to any longstanding pathology. No
psychiatric illness is impairing appellant from functioning as a police officer, and there is
no psychiatric reason why he is unfit for duty.          If the respondent believes that
personality conflicts or other administrative reasons require the suspension of appellant,
then that is a different issue. D. Gallina was asked to provide an example of psychiatric
pathology and gave the example of severe depression, which could make an individual
suicidal or homicidal. This would be a psychiatric illness that would render an individual
unfit for duty, but also could be treated, and a person so afflicted could recover from
this illness and function once again.      With regard to a psychological disorder, the
intensity, duration and effect on an individual’s ability to function would need to be
considered, in that there would need to be a sufficient loss of function, level of intensity
and duration to render the individual unfit, with reasonable medical probability.



       Testifying on behalf of respondent was Anthony Serrao, a captain with the
Administrative Division of the Fair Lawn Police Department. Captain Serrao has been
with the department for two years and has been administrative director for over two
years. The captain discussed the risk management procedures section of the Attorney
General Guidelines of Risk Management for Internal Affairs and indicated that part of
the procedure is to look at employees to check for personality problems, to identify
them before they happen.        After reviewing the number of IA investigations that
appellant had been involved in, a determination was made to do a fitness-for-duty
examination. In connection with his inquiry, Captain Serrao prepared a letter to Chief
Marshall (R-14) and discussed the number of complaints in general and the type of


                                             20
OAL DKT. NO. CSV 1736-02


complaints against appellant dating back to 1997.              The captain recommenced
counseling and intensive supervision, which meant a sergeant would ride with appellant
to review his interaction with the public and his overall work habits.


       A Training Advisement (R-15) was issued to appellant on April 30, 2001, to bring
to his attention the number of demeanor complaints, and the recommendation that
additional training was warranted. Appellant was riding with a sergeant at the time, and
it had been planned that he would do so for two months and then be spot-checked
periodically. On cross-examination, the captain indicated that following his April 27
report, the appellant was sent for counseling. 3 The captain said that appellant passed
the course and received a certificate (P-16) and that he hoped that appellant “learned
something.”    No further problems were experienced with appellant.              The captain
indicated that there were no problems with appellant while he was being monitored and
that he would have known about it if there had been a problem. The captain also
confirmed that five out of six of the internal affairs complaints he highlighted in his letter
to the chief were not sustained.


       With regard to appellant’s request for sick leave (R-4), the procedure is that
when returning to work, the police officer is to “sign off” on the form, and in this case
this was not done. Accordingly, it was not known whether appellant indicated he was
“stressed” when signing himself out.


       Appellant testified that he began work as a police officer on January 13, 1995,
with the Fair Lawn Police Department.              Appellant passed the pre-employment
psychological examination and successfully completed his courses at the Police
Academy.




3
  The counseling appellant was sent to was a course entitled Advanced Cultural Diversity (see
P-16) and dealt with diversity vis-à-vis persons of Asian descent. Appellant was required to
attend because an individual named Chen filed a complaint against appellant following a traffic
stop. However, the individual was Jewish, and not Asian.

                                              21
OAL DKT. NO. CSV 1736-02


      Appellant also received several awards and commendations during his tenure at
Fair Lawn, which he listed:


      P-10 A citation from the General Assembly commending appellant for
             demonstrating exemplary conduct in rescuing a stabbing victim

      P-11 Appellant successfully completed a continuing education course entitled
             Arrest Search and Seizure Update

      P-12 PBA award for exceptional police service

      P-13 Certificate issued by or from the National Highway Traffic Safety
             Administration evidencing successful completion of a DWI detection
             course

      P-14 Certificate awarded from the Bergen County Police and Fire Academy for
             successful completion of a horizontal gaze nystagmus course

      P-15 Certificate awarded by the Bergen County Law and Public Safety Institute
             for successful completion of a course entitled “Cultural Diversity for Police
             Officers”

      P-16 Certificate awarded by the Bergen Law and Public Safety Institute for
             successful completion of a course in advanced cultural diversity

      P-17 A letter received by Chief Marshall from a resident complimenting and
             thanking appellant for his empathy and understanding in handling a traffic
             accident she had been involved in

      P-18 American Legion award naming appellant Police Officer of the Year for his
             actions in subduing and arresting an armed suspect for the attempted
             murder of his ex-girlfriend

      P-19 A letter of commendation addressed to the lieutenant under whose
             command appellant worked for appellant’s actions in resolving an incident
             involving an armed juvenile who had barricaded himself in a house

      P-20 A thank-you letter from the then chief of police commending appellant for
             his conduct and demeanor and presence as a member of a motorcycle
             escort at a fellow officer’s funeral

                                             22
OAL DKT. NO. CSV 1736-02


       P-21 A letter of appreciation from a resident thanking appellant and other
              officers for the help and concern provided to the resident during a family
              crisis

       P-22 A letter of commendation from Lieutenant Cook 4 commending appellant
              and other police officers for their work at the scene of a fatal motor vehicle
              accident involving a stolen automobile and numerous individuals, which
              resulted in charges being filed against the individuals for eluding,
              possession of a stolen vehicle, aggravated assault, two counts of assault
              by auto, DWI, zero tolerance, reckless driving, unlicensed driver, revoked
              driver, and no rear tail lights

       P-23 A commendation issued to appellant and other officers by the Borough
              manager, in the absence of the chief, expressing appreciation for their
              work in an arrest of a large and hostile perpetrator

       P-24 No exhibit

       P-25 Commendation letter from former Borough manager thanking appellant
              and other officers for their work in the investigation of numerous
              robberies, which led to the arrest of a suspect

       P-26 A press release issued by the police chief relative to the efforts of
              appellant and other officers in arresting and apprehending a suspect
              accused of attempted murder, kidnapping, burglary, terroristic threats, and
              unlawful possession of a weapon (the individual had partially cut his
              victim’s throat)


       Appellant confirmed that he had in fact called in a request for sick leave due to
stress and back problems around the July 4 weekend.


       Appellant also testified that he knew that the Borough was unhappy with his
association with a motorcycle club and ultimately determined that although there are
other police members of the club, it was not worth jeopardizing his career for, so he

4
 Lieutenant Cook was the individual who monitored appellant during the two-month monitoring
period.

                                                23
OAL DKT. NO. CSV 1736-02


decided to leave the club and no longer belongs. There were no sustained demeanor
complaints against appellant in 2000 or 2001.


         Appellant indicated he had fourteen counseling sessions with D. Gallina.


         Appellant testified that he has never been sued, and he has never been in
alcohol or drug counseling. He receives physical therapy for his back. He has been
employed sporadically since his termination and has had no problems on any job.
Appellant is in a stable relationship and is engaged to be married. His mother and
stepfather live nearby, as does his brother. Appellant’s father is deceased.


         Appellant has been diagnosed with an esophageal ulcer and has had many
biopsies associated therewith. He takes no drugs other than what he described as
“heavy” antacids and feels that the ulcer is under control now. When hospitalized for
treatment of the ulcer, his physician prescribed a very low dosage of Prozac. However,
appellant felt that it did not work for him and did not follow up.


         Upon questioning, appellant indicated that he filed for medical retirement
because he was instructed to do so in order to preserve his pension, having been told
that after being terminated he would not be able to apply. So, in order to preserve his
pension, he did make application,5 and that application is “on hold.”           Appellant
indicated, however, that he does not want to retire and take a pension; he wants his job
back.


         Testifying on behalf of appellant was detective David DeLucca, currently on loan
to the prosecutor’s office. Detective DeLucca was president of the Fair Lawn PBA from
1997 until approximately early September 2002. He also served as vice president of
the PBA in 1996 and 1997. Detective DeLucca knows Chief Marshall and appellant,
and he said that the chief is gravely ill with cancer at this time. Detective DeLucca
testified that he has had many conversations with the chief regarding appellant’s
suspension, some prior to the suspension and some after. One of the meetings was


5
    No copy of the application was offered.

                                              24
OAL DKT. NO. CSV 1736-02


attended by appellant, during which the chief indicated that he wanted appellant to
obtain the proper help to enable him to get back to duty, that help being in the form of
psychological counseling. Detective DeLucca was unaware that appellant was to be
suspended until appellant was served with the suspension, and indicates that the
discussions regarding appellant always were about getting appellant help and getting
him back on the force. There were never discussions relative to terminating appellant.


                                   FINDINGS OF FACT


      Based on the evidence presented at the hearing and having had the opportunity
to observe the witnesses and assess their credibility, I FIND the following FACTS:


 1.   On April 27, 2001, Captain Anthony Serrao, a member of the Internal Affairs
      department, sent a memorandum (R-14) to Chief Rodman Marshall reviewing
      and summarizing the IA files regarding appellant. Of the fourteen complaints,
      seven were sustained. The sustained charges involved motor vehicle offenses,
      excessive lateness, excessive sick leave, a serious rules violation and one
      sustained demeanor complaint.        Captain Serrao’s recommendation was that
      appellant receive counseling, training and more intensive supervision, as a result
      of which appellant rode with a sergeant for some time, during which no
      complaints were received. Appellant has received numerous commendations,
      citations and certificates while serving as a police officer.


 2.   On June 27, 2001, appellant requested sick leave.


 3.   Chief Marshall ordered appellant to submit a fitness-for-duty examination and on
      July 3, 2001, wrote to Comprehensive Psychological Services requesting that
      appellant be evaluated.


 4.   Appellant was a member of a motorcycle club to which other police officers also
      belonged, however, this membership was a source of conflict between appellant
      and his superior officers.



                                            25
OAL DKT. NO. CSV 1736-02




 5.   Appellant was seen for a psychological evaluation by Betty C. McLendon,
      Psy.D., on July 6, 2001, and her report was issued on July 11, 2001.
      Dr. McLendon found appellant to be unfit for duty.


 6.   On July 13, 2001, a Preliminary Notice of Disciplinary Action was issued
      charging appellant with inability to perform duties and other sufficient cause
      based upon the results of the fitness-for-duty psychological examination and
      specifications that appellant was not able to carry a firearm and is a hazard to
      himself and others if permitted to remain on the job. Appellant was suspended
      effective July 13, 2001, for an indeterminate period of time commencing on that
      date and ending upon a finding by a qualified psychotherapist removing the
      restrictions following appropriate treatment.   Dr. Gallina tested appellant and
      concluded that there was insufficient objective clinical evidence to determine that
      appellant    is     unfit    for    duty     and     recommended         outpatient
      counseling/psychotherapy for appellant.


 7.   Appellant consulted with Nancy Gallina, Ph.D., on nine occasions from August
      28 until October 24, 2001, and found him fully cooperative and compliant in his
      treatment. Dr. Gallina also agreed that appellant could return to work without
      restriction and recommended continued therapy.        Her diagnosis for appellant
      was 309.28, mixed anxiety and depressed mood, which he indicated was
      causally related to his suspension without pay from his work as a police officer.


 8.   A Final Notice of Disciplinary Action was issued to appellant on November 27,
      2001, removing him from his position effective November 30, 2001.


                        LEGAL DISCUSSION AND CONCLUSION


      The Civil Service Act governs the rights and duties of a civil service employee
and the regulations promulgated pursuant to the Act. N.J.S.A. 11A:1-1 to 11A:12-6;
N.J.A.C. 4A:2-1.1 to 4A:10-3.2. A civil service employee who commits a wrongful act



                                           26
OAL DKT. NO. CSV 1736-02


related to his or her duties, or gives just cause, may be subject to major discipline.
N.J.S.A. 11A:2-6; N.J.S.A. 11A:2-20; N.J.A.C. 4A:2-2.2; N.J.A.C. 4A:2-2.3.


       In an appeal such as this from a disciplinary action that resulted in the
termination of employment, the appointing authority has the burden of proving the
charges upon it which relied by a preponderance of the competent, relevant and
credible evidence. N.J.S.A. 11A:2-21; N.J.A.C. 4A:2-1.4(a). Atkinson v. Parsekian, 37
N.J. 143 (1962); In re Polk, 90 N.J. 550 (1982). Precisely what is needed to satisfy the
standard must be decided on a case-by-case basis. The evidence must be such as to
lead a reasonably cautious mind to a given conclusion.           Bornstein v. Metropolitan
Bottling Co., 26 N.J. 263 (1958). Preponderance may also be described as the greater
weight of credible evidence in the case, not necessarily dependent on the number of
witnesses, but having the greater convincing power. State v. Lewis, 67 N.J. 47 (1975).
Credibility, or more specifically, credible testimony, in turn, must not only proceed from
the mouth of a credible witness, but it must be credible in itself, as well. Spagnuolo v.
Bonnet, 16 N.J. 546, 554-55 (1954).          Simply put, credibility is derived from an
assessment of the rationality, internal consistency and manner in which testimony
“hangs together” with other evidence. See Carbo v. U.S., 314 F.2d 718, 749 (9th Cir.
1963). Both guilt and penalty are redetermined on appeal from a determination by the
appointing authority. Henry v. Rahway State Prison, 81 N.J. 571 (1980); West New
York v. Bock, 38 N.J. 500 (1962).


       The Department of Personnel rules set forth various reasons for discipline,
including “inability to perform duties.” N.J.A.C. 4A:2-2.3(a)(3) provides as follows:


              (a)   An employee may be subject to discipline for:
                     ...
                     (3)   Inability to perform duties
                     ...
                     (11) Other sufficient cause

       Appellant is charged with one count of inability to perform duties and one count of
other sufficient cause, as contained in the Preliminary Notice of Disciplinary Action (R-11),
and the specifications are as follows:


                                             27
OAL DKT. NO. CSV 1736-02




              1.      As a result of a “fitness for duty psychological
                      examination” this officer may no longer carry a
                      firearm. The carrying of a firearm is a requisite to the
                      performance of his job.

              2.      The officer is unfit for duty, he is a hazard to persons
                      if permitted to remain on the job and suspension is
                      needed to maintain safety, health, order and effective
                      direction of public services.


       With regard to the first charge, unfitness has been defined as including having a
physical or mental disability that causes an individual to function in a manner as to make
it likely that he will endanger the welfare and safety of himself or others.


       Procedurally, the Preliminary Notice of Disciplinary Action (R-11) cites appellant for
“inability to perform duties” based upon an allegation that appellant may no longer carry a
firearm. Additionally, the preliminary notice notifies appellant that he is to be suspended
for an indeterminate period of time beginning on July 13, 2001, and ending “upon
finding by qualified psychotherapist removing the restrictions following appropriate
treatment.”   The preliminary notice did not indicate that respondent was seeking
termination of appellant.


       Substantively, with regard to the first charge, Dr. McLendon does not appear to
have distinguished between the sustained charges and the unsustained charges. Her
findings included references to questionable social situations, although no testimony was
received relative to any social situations that were deemed to be questionable.
Dr. McLendon focused on appellant’s susceptibility to certain diagnoses, such as anxiety
or depression. It is significant that following her initial examination and report of July 11,
2001, Dr. McLendon recommended therapy for four to six weeks and reexamination to
address fitness for duty again. Appellant was terminated two days later.


       Dr. McLendon’s findings indicate to her the “emergence of a psychiatric disorder.”
There was no diagnosis of a present actual condition, of a psychiatric disorder.
Appellant’s “traits” have the prospect of manifesting themselves at another time in the


                                              28
OAL DKT. NO. CSV 1736-02


form of inappropriate behavior.6         However, she agreed that no medical condition
precludes appellant from performing his duties until the manifestations are seen in the
form of inappropriate behavior.


         Certainly, it would not be unusual that an individual would exhibit signs of agitation
and anxiety in an employment-related psychological examination. One in such a position
could well present as nervous and apprehensive.             Appellant had a great number of
concerns and stresses in his life. Dr. McLendon finds “suggestions of certain symptoms
or traits” and indicates that certain behavior “may” emerge, but does not specify when, or
if, the traits or symptoms will emerge in the future, nor what the behavior issues may be.
Nor does she articulate in what manner appellant poses a hazard to himself and to
others. Appellant’s behavior is described as suggestive of “irresponsibility,” yet there is no
substantiation for this statement. The indication that “his judgment suggests that he may
act impulsively” is similarly vague and unsubstantiated and no basis is offered for this
conclusion.


         Clearly, appellant’s employment situation was and continues to be the cause of
significant stress in his life. Following an IA review of appellant’s disciplinary record, he
was sent by his employer to a psychologist for a fitness-for-duty examination. He was still
grieving the premature death of his father. He suffered from back pain stemming from a
motor vehicle accident and continued to be troubled by the aftereffects of a leg broken in
an off-duty fall on ice. He was being treated for an esophageal ulcer which had required
his hospitalization. He was a member of a motorcycle club and knew that his participation
in the club was a source of conflict with his superiors. He was being investigated for
allegations relating to the membership in the motorcycle club.7 It is against this backdrop
that appellant was “stressed” and was then asked to report for a psychological evaluation.
It would be unusual indeed if an individual with this many stressors in his life did not
consider himself “stressed.”




6
    There was no testimony as to what form this inappropriate behavior might take.
7
    No charges have been brought.

                                                29
OAL DKT. NO. CSV 1736-02


       Respondent     terminated   appellant’s    employment,   and    in   its   posthearing
submissions cites several cases as support for its position, each of which is factually
distinguishable from the within matter. The matter of Sotomayer v. City of Plainfield
Police Department, CSV 9921-98, Initial Decision (December 6, 1999), aff’d, Merit
System Board (January 11, 2000) <http://lawlibrary.rutgers.edu/oal/search.html>,
involved the removal of Sotomayer from his position as a police officer charged with
incompetency, inefficiency, failure to perform duties, insubordination, inability to perform
duties, and other sufficient cause, the specifications of which related largely to
allegations that Sotomayer was medically diagnosed as being occupationally and
professionally unfit to perform the duties of a police officer. Sotomayer had thirty-eight
disciplinary charges and was found to be unfit for duty by the examination of an
independent psychologist. In the within matter, there has been no medical diagnosis.
In fact, there is medical testimony to the contrary.


       Also cited was Pitts v. City of Camden Police Department, 95 N.J.A.R.2d (CSV)
89, wherein a police officer with twenty-seven disciplinary incidents, fourteen of which
were unsubstantiated, was removed from his position.          The charges included false
statements on an automobile accident report, negligently permitting a prisoner to
escape, neglect of duty, damaging city property and leaving his duty station without
authority while driving his personal vehicle.          On remand, an independent third
psychologist was enlisted to examine Pitts and persuasively testified that Pitts was
incapacitated due to a mental disability, and accordingly the removal was affirmed.


       In the matter of McTernan v. Borough of Belmar, 93 N.J.A.R.2d (CSV) 203,
charges of incompetency, inability to perform duties, insubordination, conduct
unbecoming and gross neglect of duty were sustained against a court administrator.


       Respondent cites Moorestown Township v. Armstrong, 89 N.J. Super. 560 (App.
Div. 1965), which is distinguishable in that it involved the removal of a police officer who
had been in family altercations, had threatened to commit suicide, threatened to kill the
chief of police, threatened to abandon his home and job, misused firearms, and violated
numerous departmental regulations. Nothing even remotely analogous exists in the



                                             30
OAL DKT. NO. CSV 1736-02


within matter. Further, in that matter the police officer was neither examined nor found
to be unfit. Rather, the originally penalty of termination was reinstated by the court
because of the multiplicity and serious nature of disciplinary charges against the police
officer. In the within matter, there are no collateral disciplinary charges pending.


       The suggestion was made that appellant be observed for “emergence of
psychiatric disorders.” The disorders have not emerged, and may not emerge, and no
disorders have been identified, nor is there any indication that any disorders that
emerge will render appellant unable to perform the duties of a police officer. The Millon
test, upon which great reliance was placed, was indicated by appellant’s expert to not
be a proper test for a specific functioning group such as police offers where the results
are compared to the remainder of the population.


       Appellant was termed highly susceptible to unspecified clinical disorders, yet
cannot be diagnosed with any disorder at the present time and may never be. He has
functioned adequately as a police officer and has numerous commendations and
citations. It has been suggested that his behavior shows irresponsibility, and asserted
that his past personal and professional lifestyle is characterized by dramatic acting out,
yet there is no reference to any actual incident to support either of these conclusions.


       In the matter of Greenwood v. State Police Training Center, 127 N.J. 500 (1992),
the Court found that a man with vision in only one eye was eligible for police duty
because the deficit was not shown to have disabled him to perform the duties of a
police officer, including making arrests or even handling a gun. The Court found no
objective medical evidence for “the connection between any enhanced risk [of injury]
and Greenwood’s physical limitation” and that the loss of vision in one eye did not
“affect his ability to perform” his duties as a police officer. 127 N.J. at 514. Similarly,
the manner in which appellant in the within matter has been characterized by
respondent has not been shown to disable him from the performance of the duties of a
police officer and cannot be said to render him “unfit.”




                                             31
OAL DKT. NO. CSV 1736-02


        In Matter of Vey, 135 N.J. 306 (1994), a candidate for appointment as a police
officer was found to be mentally unfit.       The candidate appealed and the Appellate
Division affirmed. The Supreme Court held that there was no basis for equating the
personality traits allegedly attributable to Ms. Vey with a condition of unfitness and
remanded.      On remand it was revealed that the tests 8 relied on were nationally
recognized tests which both respondent and Vey’s own expert relied upon when
evaluating her. The court’s ultimate finding was that Ms. Vey’s removal from the list
based on unfitness for police work was not arbitrary, capricious or unreasonable. That
matter is distinguishable, however, not only because the psychological testing included
tests administered only to police officers, but because the “negative test results were
consistent with ‘the observed negative trend in [her] behavior and work performance.’”
135 N.J. at 308, citing Vey, 272 N.J. Super. 199, 205 (1993). The negative trend in
Vey’s performance of her duties was highlighted in the record by four of her colleagues.
The Appellate Division’s findings, ultimately upheld by the Supreme Court, observed
that the respondent in that matter submitted “a lengthy report identifying 11
psychological traits which it claimed might preclude Vey from performing police
work. . . .   The report gave detailed examples of how each trait related to specific
functions of the job. ” Vey, supra, 272 N.J. Super. at 204 (emphasis added). In the
decision before the remand, the Supreme Court articulated that


               the difficulty here is that a gap exists between the evidence
               of the identified personality traits and the condition of
               unfitness that has to be met under the regulation. The use
               of the specific personality traits ascribed to this candidate as
               predictors of job performance has not been validated. It
               may be that such validation would not be required if the test
               disclosed a recognized mental disease or defect. . . . If . . .
               the evaluator simply notes various personality traits, then
               there ought to be some validation that the described
               personality traits do in fact correlate to job performance.

               [Vey, 124 N.J. 534, 541-42.]




8
  The Minnesota Multiphasic Personality Inventory (MMPI) Test was administered, as were
other tests, including the Law Enforcement Assessment and Report.

                                              32
OAL DKT. NO. CSV 1736-02


       Dr. McLendon’s conclusions are precisely the type of vaguely worded
conclusions the Court took issue with in Vey.            The personality traits purportedly
attributable to appellant have not been demonstrated in any manner to correlate to his
job performance or to be predictors of his future performance. The testing has not
disclosed any recognized mental disease or defect. Nothing in the record suggests a
basis for equating the traits identified with the alleged inability of the appellant to carry a
firearm or to perform the other duties of his job. In fact, respondent’s expert agrees that
no medical condition precludes appellant from performing his duties until the
manifestations appear. I FIND the evidence in the record insufficient to demonstrate
psychological unfitness.


                               CONCLUSION AND ORDER


       I therefore CONCLUDE that, based upon all of the foregoing, appellant is not
incapacitated from performing the duties of a police officer in the Borough of Fair Lawn
and CONCLUDE that the appointing authority has not met its burden of proving the
charges by a preponderance of the believable, credible evidence. Accordingly, it is
ORDERED that the charges be DISMISSED, and further ORDERED that appellant attend
counseling. It is further ORDERED that appellant be awarded back pay for the period of
time commencing from the effective date of his improper removal up to and until the
effective date of his reinstatement. As he has prevailed, appellant is entitled to counsel
fees, pursuant to N.J.A.C. 4A:2-2.12 and N.J.S.A. 40:14-155, and it is so ORDERED.


       I hereby FILE my initial decision with the MERIT SYSTEM BOARD for
consideration.


       This recommended decision may be adopted, modified or rejected by the MERIT
SYSTEM BOARD, which by law is authorized to make a final decision in this matter. If
the Merit System Board does not adopt, modify or reject this decision within forty-five
(45) days and unless such time limit is otherwise extended, this recommended decision
shall become a final decision in accordance with N.J.S.A. 52:14B-10.




                                              33
OAL DKT. NO. CSV 1736-02


       Within thirteen (13) days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the DIRECTOR, MERIT
SYSTEM PRACTICES AND LABOR RELATIONS, UNIT H, DEPARTMENT OF
PERSONNEL, 44 South Clinton Avenue, PO Box 312, Trenton, New Jersey 08625-
0312, marked "Attention: Exceptions." A copy of any exceptions must be sent to the
judge and to the other parties.




DATE                                          LESLIE Z. CELENTANO, ALJ

                                              Receipt Acknowledged:



DATE                                          MERIT SYSTEM BOARD

                                              Mailed to Parties:



DATE                                          OFFICE OF ADMINISTRATIVE LAW
md




                                         34
OAL DKT. NO. CSV 1736-02


                                       APPENDIX


Witnesses


      For Appellant:

            Detective David DeLucca
            Peter Kristensen


      For Respondent:

            Dr. Betty C. McLendon
            Dr. David J. Gallina
            Captain Anthony Serrao


Exhibits


      For Appellant:

            P-1        Investigation Report, May 2, 2001
            P-2        Dr. Gallina’s medical report, August 27, 2001
            P-3        Personality Assessment Inventory, November 7, 2001
            P-4        Clinical Interpretative Report, November 7, 2001
            P-5        Personality Assessment Inventory Score Report, November 7, 2001
            P-6        IVA Continuous Performance Test Report, November 7, 2001
            P-7        Sentence Completion Series, November 7, 2001
            P-8        Projective Drawings
            P-9        Professional Report, November 7, 2001
            P-10       Citation, December 9, 1997
            P-11       Certificate, September 26, 2000
            P-12       Certificate of Merit, September 19, 1997
            P-13       Certificate of Training, June 13, 1997
            P-14       Certificate, June 11-13, 1997
            P-15       Certificate, October 12-13, 2000
            P-16       Certificate, May 22-23, 2001

                                             35
OAL DKT. NO. CSV 1736-02


           P-17   Letter, Lorraine Rosenblatt to Chief Marshall, June 9, 1999
           P-18   American Legion Award
           P-19   Memorandum, Sergeant Moscatello to Lieutenant Yirce, February 2,
                  2000
           P-20   Memorandum, Acting Chief Sudol to Kristensen, March 27, 1998
           P-21   Memorandum, Director Robert Martin to Kristensen, July 20, 1998
           P-22   Memorandum, Lt. Joseph Cook to Captain Sudol, October 4, 2000
           P-23   Memorandum, Bert Kendall to Bob Gajarsky, August 29, 1995
           P-24   No exhibit
           P-25   Memorandum, Barbara Sacks to Chief Marshall, November 20, 2000
           P-26   Fax Transmittal Press Release, September 19, 1997


     For Respondent:

           R-1    Vitae, Dr. Betty C. McLendon
           R-2    Anticipated Performance Problems on Essential Job Elements
           R-3    Letter to Edward C. Higgins, Ph.D., July 3, 2001
           R-4    Request for sick leave , June 27, 2001
           R-5    Dr. McLendon’s psychological evaluation, July 11, 2001
           R-6    Psychological/Social History, July 5, 2001
           R-7    Interpretive Report, Theodore Millon, Ph.D., July 6, 2001
           R-8    Interpretive Report, July 6, 2001
           R-9    Follow-up psychological evaluation, October 17, 2001
           R-10   Memorandum, Dr. McLendon to N. Gallina, October 71, 2001
           R-11   Preliminary Notice of Disciplinary Action, July 13, 2001
           R-12   N. Gallina’s office notes
           R-13   Risk Management Procedures
           R-14   Memorandum, Captain Serrao to Chief Marshall, April 27, 2001
           R-15   Training Advisement, April 30, 2001
           R-16   Notice of Minor Disciplinary Action, December 17, 1998
           R-17   Notice of Minor Disciplinary Action, January 20, 1998
           R-18   Application for Disability Retirement (blank)
           R-19   Employer Certification for Disability Retirement, March 18, 2002




                                        36

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:28
posted:3/31/2012
language:
pages:36