                             NOT FOR PUBLICATION WITHOUT THE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-1016-18T2

IN THE MATTER OF C.E.,
POLICE OFFICER (S9999R),
ELIZABETH
__________________________

                Argued telephonically March 18, 2020 –
                Decided June 5, 2020

                Before Judges Koblitz, Whipple, and Mawla.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2017-677.

                Stephen B. Hunter argued the cause for appellant C.E.
                (Detzky, Hunter & DeFillippo, LLC, attorneys; Stephen
                B. Hunter, of counsel and on the brief).

                Robert J. Lenahan, Jr., Special Counsel, City of
                Elizabeth Department of Law, argued the cause for
                respondent City of Elizabeth.

                Dominic L. Giova, Deputy Attorney General, argued
                the cause for respondent New Jersey Civil Service
                Commission (Gurbir S. Grewal, Attorney General,
                attorney; Donna Arons, Assistant Attorney General, of
                counsel; Dominic L. Giova, on the brief).

PER CURIAM
      C.E.1, appeals from a September 21, 2018 Final Administrative Action of

the New Jersey Civil Service Commission (Commission) ordering his name be

removed from the municipal police officer eligibility list, after he was deemed

unfit to perform the duties of the position by the City of Elizabeth. We affirm.

      C.E. passed the Civil Service Examination for the position of police

officer and applied for employment with the City. C.E. worked as an emergency

medical technician (EMT) for approximately fifteen years with various agencies

including, the Elizabeth Fire Department Ambulance Service Bureau

(EFDASB), Avenel First Aid Squad, Valley Hospital, and North Bergen EMS.

Upon completion of his background check, he was offered a job and accepted it.

      C.E.'s background investigation highlighted certain behaviors over the

course of his employment. While working for EFDASB, C.E. was charged with

and pled guilty to "yelling at and using profanities towards a co-worker and

[making] inappropriate comments to a patient." C.E. was terminated from North

Bergen EMS after being charged with incompetency, insubordination, neglect

of duty, misuse of public property, including motor vehicles and other sufficient



1
   We utilize initials throughout. See N.J.A.C. 4A:4-6.5(b)(2) ("Information
obtained . . . regarding the medical condition or history of an employee shall be
collected and maintained on separate forms and in separate medical files and
treated as a confidential medical record. . . .").
                                                                         A-1016-18T2
                                       2
cause. The record check also revealed C.E.'s driving record included six motor

vehicle accidents and five license suspensions.

      The City referred C.E. for a pre-employment psychological evaluation

that was conducted on June 16, 2016, by Dr. Betty C. McLendon, Psy.D. Dr.

McLendon conducted a six-hour test using several metrics, including the Inwald

Personality Inventory test. In September 2016, Dr. McLendon issued a report

finding C.E. was a person "who presented with a history and pattern of

maladaptive functioning and adjustment problems." Dr. McLendon also found

that C.E. demonstrated "limited insights, poor judgment and a record of

behaviors that reflected emotional instability across multiple domains of his

life." Dr. McLendon further opined that C.E.'s "inability to adhere to standards

and to maintain proper professional decorum has been documented and further

supports his unsuitability for a public service position."

      After reviewing Dr. McLendon's report, the City notified C.E. that his

name had been removed from its hiring authority's eligibility list. C.E. appealed

the City's decision to the Medical Review Panel (Panel) pursuant to N.J.A.C.

4A:4-6.5. In support of his appeal, C.E. testified and submitted two independent

psychological reports, one from Dr. John Aylward, Ed.D, and another from Dr.

Nicole J. Rafanello, Ph.D, which both presented opinions C.E. was


                                                                         A-1016-18T2
                                        3
psychologically fit for the position of a municipal police officer. C.E. also

submitted various letters of recommendation primarily from his supervisors and

colleagues.

      On December 11, 2017, the Panel, after considering C.E.'s submitted

materials, his appearance before the panel, and Dr. McLendon's initial

evaluation, recommended the City uphold his removal from the eligibility list.

The Panel was particularly concerned with C.E.'s reported problems at work as

well as his driving record. The Panel noted:

              Despite the fact that he was injured just prior to his use
              of profanity, his judgment in that incident was poor.
              Though he stated that he did not direct any of the
              profanity towards the patient who was being
              transported, the official report from the incident that
              noted [C.E.] made inappropriate comments to the
              patient. [C.E.] pled guilty to the charge against him in
              that incident. . . . [H]e used an ambulance to push a
              disabled motor vehicle off a highway and allegedly
              failed to respond in a timely manner to a dispatch on a
              "priority call". . . . [C.E.] has had his driver's license
              suspended five times. That pattern of not following
              rules is not consistent with the behavior expected of a
              police officer. The number of incidents, some of which
              are in the recent past, . . . led the panel to find [C.E.] is
              not suited for work as a police officer.

      The Panel considered the opinions of the evaluators, concluded Dr.

McLendon's recommendation was sufficiently supported by the record, found



                                                                              A-1016-18T2
                                           4
C.E. was mentally unfit to fulfill the duties of the position, and recommended

the hiring authority keep his name off the eligibility list.

      C.E. filed exceptions to the Panel's recommendation, and on September

21, 2018, the Commission issued an order upholding the Panel's decision. The

Commission noted:

             While perhaps lacking any specific mental pathology,
             the Commission finds that the incidents such as yelling
             at a co-worker, directing profanity at a patient he was
             transporting, and failing to respond to a dispatch . . . are
             clearly reflective of an individual of questionable
             judgment and impulse control . . . .

The Commission added C.E.'s psychological traits and behavioral history,

identified by the Panel, "clearly adversely relate to effective performance as a

Police Officer" and ordered that his name be removed from the eligibility list.

This appeal followed.

      On appeal, C.E. argues the Commission's decision to remove his name

from the eligibility list was arbitrary, capricious, and unreasonable because: 1)

the Commission failed to refer to C.E.'s exemplary career as an EMT; 2) the

Commission ignored the findings of the City's Background Investigation Unit

who concluded that C.E. was a qualified candidate for the position; and 3) the

Commission did not comply with the required legal standards in the State's

psychological examination cases.

                                                                            A-1016-18T2
                                          5
      Our review of the Commission's decisions is limited. See In re Stallworth,

208 N.J. 182, 194 (2011). We accord a strong presumption of reasonableness to

agency determinations. In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001).

We "may not substitute [our] own judgment for the agency's, even though [we]

might have reached a different result." Stallworth, 208 N.J. at 194 (quoting In

re Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue

under review is directed to the agency's special 'expertise and superior

knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J.

19, 28 (2007)).

      "In order to reverse an agency's judgment, [we] must find the agency's

decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by

substantial credible evidence in the record as a whole.'" Id. at 194 (quoting

Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). While an agency's

interpretation of statutes and regulations within its enforcing responsibility are

ordinarily entitled to our deference, E.S. v. Div. of Med. Assistance & Health

Servs., 412 N.J. Super. 340, 355 (App. Div. 2010), "we are not bound by the

agency's legal opinions," which we review de novo, A.B. v. Div. of Med.

Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009) (citation

omitted).


                                                                          A-1016-18T2
                                        6
      We reject C.E.'s arguments. C.E.'s reliance on In re Vey, 124 N.J. 534

(1991) (Vey I) and In re Vey, 135 N.J. 306 (1994) (Vey II) for the proposition

that the Commission failed to comply with the required legal standards is

misplaced. In Vey I, a seasonal police officer was removed from a township's

eligibility list for a position as a full-time officer after her psychological

evaluation indicated she was "more likely than the average person to become

emotional or frustrated; impulsive and suspicious; and assertive and bold, with

the suggestion of likely conflict between herself and supervisory personnel."

124 N.J. at 536-38. There the evaluator concluded: "[W]hile [the candidate] has

many strengths, her potential for functioning well in the long term . . . as a police

officer are below average." Id. at 537.

      The Court remanded the matter to the agency so that it could relate its

findings in the case to the statutory qualifications of the position. Id. at 543-44.

The Court noted that while the evaluators found the candidate to have below-

average potential because, in part, they believed her "boldness" and

"suspiciousness" could pose problems between the candidate and her

supervisors, it was not readily apparent how being "bold" or "suspicious"

contributes to a candidate's unfitness to be a police officer. Id. at 543. The

Court held: "If a trait is to be deemed disqualifying to the extent that it


                                                                             A-1016-18T2
                                          7
demonstrates psychological unfitness, there must be evidence in the record of

both the trait itself and the trait's correlation with the standard of psychological

unfitness." Id. at 544.

      In Vey II, 135 N.J. at 307, the Court determined the agency complied with

terms of the remand and noted the candidate's negative test results were

consistent with "the observed negative trend in [her] behavior and work

performance." Id. at 308 (citation omitted). The Court recognized that society

relies on police officers to carry out responsibilities that are "simultaneously

weighty, sensitive, and fraught with dangerous consequences to themselves,

other police officers, and the public." Ibid. The Court found the agency's

decision was not arbitrary, capricious, or unreasonable in finding an applicant

unfit for the position when, that applicant is "impulsive," "manipulative," "easily

frustrated," "suspicious," and "assertive and bold with advisory personnel. . . ."

Id. at 308-09.

      Based on our review we conclude, the Commission complied with the

mandates of Vey I and Vey II as its final decision identifies C.E.'s disqualifying

traits, there is sufficient credible evidence in the record of the traits ' existence,

and there is a correlation with the traits and the standard of psychological

unfitness. Like in Vey II, where the Court affirmed the agency's determination


                                                                              A-1016-18T2
                                          8
that an applicant was unfit because both her work performance and

psychological test results suggested she would not be an effective officer, C.E.'s

behavioral record and psychological evaluation can be considered to lead to the

same conclusion.

      We also reject C.E.'s contention the Commission ignored the positive

aspects of his profile, such as his career as an EMT and the independent

psychological examinations of Dr. Rafanello and Dr. Aylward. The Panel's

recommendation, which the Commission adopted, clearly evaluated each of the

psychological examinations and nonetheless found, on balance, the negative

traits rendered C.E. mentally unfit for the position. In addition, the Commission,

in its final decision, stated it was unpersuaded by C.E.'s exception, that his EMT

experience along with his letters of recommendation made him suitable to be a

police officer.

      While we recognize C.E.'s longstanding career as an EMT, we do not

substitute our own opinion for the agency's, even if we would have reached a

different result, when there is sufficient credible evidence to support the

agency's decision. Based on our review of the record and well-established legal

principles, we conclude the Commission's decision was not arbitrary,




                                                                          A-1016-18T2
                                        9
unreasonable, or capricious and was supported by sufficient credible evidence

in the record.

      Affirmed.




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