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Berman v. Township of Springfield

July 8, 2008

MARK BERMAN, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF SPRINGFIELD, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2949-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2007

Before Judges A. A. Rodríguez and C. L. Miniman.

Mark Berman (Appellant), a Springfield Township police officer, appeals from the October 26, 2006 order by Judge Walter R. Barisonek, following a de novo review of a disciplinary hearing held by Hearing Officer Robert M. Czech, which sustained all disciplinary charges against Appellant and terminated his employment with the Township of Springfield (Township), a non-civil service jurisdiction. We affirm.

The following facts are undisputed as restated by Judge Barisonek in his oral opinion:

[Appellant] is a municipal police officer for the Township of Springfield. He was involved in several incidents which led him to receive a 15 month suspension without pay. . . . These incidents formed the basis for the disciplinary charges in 2002 which led to the 15 month suspension.

[I]n October of 2002, because of his involvement in the incidents with his wife, [Appellant] was sent by the department for a fitness for duty evaluation by Dr. Betty S. McLendon, a psychologist at the Comprehensive Psychological Services. Dr. McLendon interviewed [Appellant], ran some tests . . . and rendered a report which found [Appellant] unfit for duty and recommended before he be considered for return to duty that he must submit to anger management, psychological counseling and provide proof of his participation. The report also indicated that the results of the upcoming departmental and criminal hearings for the [domestic violence] incident . . . may require a follow-up evaluation and modification of her recommendations.

The allegations, findings and suspensions from the charges in 2002, and through [2003] and decided in August of 2004 are not part of this appeal.

The 2002 charges were heard by Hearing Officer Mark A. Tabakin. Tabakin ordered that Appellant be reinstated to active duty effective August 17, 2004, at the end of the fifteen-month suspension previously ordered by Township Chief of Police, William Chisholm. Prior to this date, Chisholm requested that Tabakin reconsider his decision to reinstate Appellant for duty in light of the 2002 fitness for duty evaluation report from Betty McLendon, which found that Appellant was unfit for duty as a police officer. Tabakin declined.

Therefore, on August 17, 2004, Appellant returned to work. At Chief Chisholm's direction, Appellant was not assigned any duties pending the results of a follow-up fitness for duty evaluation by McLendon. On September 11, 2004, McLendon issued a written report opining that Appellant "denied that he was aware that he needed to participate in Psychotherapy and Anger Management" based upon her earlier findings in the 2002 report. McLendon found Appellant's account of his participation in an anger management program "yielded little awareness[,] and it can therefore be inferred that his participation was superficial and without functional gains."*fn1 As a result, McLendon reaffirmed her earlier opinion that Appellant was "psychologically unfit for duty and unfit to be rearmed." McLendon also required that Appellant "participate in a period of psychotherapy with a Licensed Clinician for not less than twelve sessions over a three month period before he can be reconsidered for duty[,]" and "submit documentation that he is participating in treatment."

Based on McLendon's report, Chisholm immediately suspended Appellant and initiated the process for terminating Appellant's position as a police officer.

Appellant contacted the Cop 2 Cop program and was referred to Spencer C. Levey, a licensed psychologist for psychological services. Appellant commenced therapy with Levey immediately. Levey contradicted all of McLendon's clinical findings.

At the 2004 disciplinary hearing, Officer Czech heard testimony concerning the request for Appellant's termination from the police department. Four witnesses testified at the hearing: McLendon, Levey, Hodgdon and David J. Gallina*fn2 , M.D. McLendon testified that Appellant had "poor judgment, . . . poor problem solving abilit[y], very poor interpersonal behaviors, he was unable to accept constructive criticism, meaning [the ability to] find the insight to correct some of the difficulties that had been recommended on previous occasions." She opined that Appellant "had difficulty following rules and regulations, not only being a police officer, but in enforcing rules of social norms within society, based upon his relationship and domestic issues." In her opinion, Appellant lacked "the ability to exercise emotional self-control and that very large element had to do with his integrity as a police officer." Additionally, McLendon found that Appellant was "still . . . in denial, still perceived himself as a victim, that his judgment and insight still remained impaired, that he was narcissistic and not insightful and . . . his participation in anger management was without functional gains." McLendon also testified that, during her 2004 interview with Appellant, he first denied ...


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