On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2002-4564.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Miniman.
Appellant Bazyt Bergus appeals from a final determination of the Merit System Board (Board) issued on April 27, 2006, which affirmed his removal as a sergeant with the City of Newark Police Department (NPD). For the reasons that follow, we affirm.
Appellant had previously been suspended from his position with the NPD and terminated effective August 19, 1998, based on charges related to his handling of a prisoner. In December 2000, the Board reduced the removal to a ten-day suspension, and ordered appellant's reinstatement. Appellant returned to work on June 4, 2001 and he was assigned in July 2001 to firearm re-qualification because of his lengthy separation from duty.
After successfully completing the program, appellant informed the range instructor that he was subject to a final domestic violence restraining order that had been issued on June 22, 2000, which prohibited him from carrying a weapon. Sergeant Jerry Calabrese (Calabrese) heard appellant's remark and reported the matter to his supervisors. Calabrese began an investigation into the restraining order, and appellant was referred for a psychological examination to determine whether he was fit to serve as a police officer. The NPD issued a preliminary notice of disciplinary action, dated August 23, 2001.
Appellant was examined on October 30, 2001 at the Institute for Forensic Psychology in Oakland, New Jersey. Psychologists Guillermo Gallegos, Ph.D. (Gallegos), and Irving B. Guller, Ph.D., issued a report dated November 1, 2001, in which they concluded that, based on an interview with appellant and the results of various psychological tests, appellant was unfit to serve as a police officer. On November 29, 2001, appellant was examined by psychologist Bart Rossi, Ph.D. (Rossi), who rendered a report on his behalf concluding that appellant did not "present with any significant psychological problems that would prevent him [from] performing his duties."
The NPD issued a final notice of disciplinary action on April 30, 2002, ordering appellant's removal from his position. Appellant filed an administrative appeal with the Board, which referred the matter to the Office of Administrative Law for a hearing, at which testimony was presented by Gallegos, Rossi and others. The Administrative Law Judge (ALJ) issued an initial decision dated February 24, 2006, in which she concluded that the charge had been sustained.
The ALJ found that appellant was not able to perform his duties because, when the preliminary notice of disciplinary action was issued in August 2001, appellant was precluded by the June 22, 2000 restraining order from carrying a weapon. The ALJ further determined that appellant was not psychologically fit to serve as a police officer. The judge based this finding on Gallegos's testimony and report, which she found more persuasive than Rossi's testimony. The judge noted that Gallegos had opined that "[a]ppellant had difficulty controlling [his] aggressive impulses and, at some point, this difficulty could present some danger to [appellant] or others."
The ALJ also addressed the issue of penalty, stating that progressive discipline was not appropriate. The ALJ observed:
In this case, both grounds for the termination are of a nature to require immediate termination. The danger to the public of permitting an officer who cannot carry a weapon and who is otherwise unfit or unable to perform his duties is obvious. A police officer is charged with protecting the public safety and welfare. An officer who cannot carry a weapon cannot fulfill that obligation nor can one who may, at some point, exhibit aggressive behavior during a crisis situation.
In its final decision, the Board noted that the June 22, 2000 restraining order had been vacated on October 19, 2001, which was several months before the NPD issued the final notice of disciplinary action terminating appellant's employment. The Board stated that, "In such an instance, it would have been appropriate for the appointing authority to only suspend the appellant for the period of time the restraining order was in effect." The Board noted, however, that appellant had not presented conclusive evidence that the restraining order had, in fact, been vacated on October 19, 2001.
The Board added that even if appellant had established that the June 22, 2000 restraining order had been vacated prior to his termination on April 30, 2002, appellant's termination would nevertheless be upheld based on the psychological evaluation. The Board noted that it had no basis to reject the ALJ's credibility findings with regard to the testimony of Gallegos and ...