July 8, 2008
MARK BERMAN, PLAINTIFF-APPELLANT,
TOWNSHIP OF SPRINGFIELD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2949-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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  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 that he was aware that he needed to participate in Psychotherapy and Anger Management. He later stated that he tried to go to Psychotherapy, but could not afford it. . . . He also did not follow through with the voluntary private therapy, which he indicated back in October 2002 that he would be participating "with his stepson."
Again, McLendon concluded that Appellant needed to undergo psychotherapy with a licensed clinician for not less than twelve sessions before he could be reconsidered for duty.
Levey contradicted McLendon's clinical findings. According to his 2004 report, he "[found] no reason why [Appellant] should not be reinstated to full duty including the use of . . . personal weapons."
Levey is a licensed psychologist at Overlook Hospital, Northern State Prison. He primarily handles therapy for parole and corrections officers. Levey conceded that he has no experience with conducting fitness for duty evaluations for police officers. He also admitted during cross-examination that he had no working knowledge of police guidelines for fitness for duty evaluations, which require a clinical report accompanied by diagnostic tests to properly evaluate an individual's fitness for duty. Indeed, Levey acknowledged that he has not seen a job description for a police officer, and admitted that there was a distinction between working with corrections and parole officers as compared to police officers.
Hodgdon testified that Appellant had successfully completed the compassion workshop by "com[ing] to every session, . . . fulfilling all the homework requirements[,] . . . comply[ing] with the exercises in the group program[,] and [paying] his fee." Hodgdon, however, could not independently confirm that the compassion workshop worked for Appellant or made things better.
While the disciplinary hearing was proceeding, Appellant retained Gallina to conduct an evaluation of Appellant's "neuropsychiatric status." Gallina testified that his evaluation of Appellant's problems was based on an apparent "isolated incident of marital difficulties." Gallina stated that he reviewed both McLendon's and Levey's reports prior to rendering his evaluation, but did not conduct any independent testing. Gallina concluded that Appellant was "fit to resume his duties as a police officer and to be rearmed as a police officer." According to Gallina, Appellant did not exhibit any physical or mental symptoms of psychosis or mental illness. Notably, Gallina did not know about the nature of Appellant's domestic violence incident; the extramarital affair; the two prior arrests; the failure to report for off-duty jobs; the failure to respond to radio calls; and the inappropriate behavior he exhibited while conducting a police investigation.
Ultimately, Czech found that Appellant was in violation of Article XI, Section A(6)(c) of the Township Police Rules and Regulations for incapacity due to mental or physical disability and an inability to perform duties. Czech recommended that Appellant be terminated from his position as a police officer. The Township adopted Czech's findings and conclusions and terminated Appellant's employment effective immediately.
Appellant challenged this decision by filing an action in lieu of prerogative writs (as of right) pursuant to N.J.S.A. 40A:14-150, which provides that: "[a]ny member or officer of a police department . . . in a [non-civil service] municipality . . . who has been tried and convicted upon any charge . . ., may obtain a review thereof by the Superior Court."*fn3
Judge Barisonek conducted a de novo review. He found McLendon to be the more credible witness based on her higher-level of understanding of what it takes to be a police officer and her increased familiarity with police officer guidelines. The judge found that:
It seems quite reasonable to apply a different standard to a police officer's fitness for duty as opposed to that of a civilian who does not have the same obligations or responsibilities when dealing with the public. Police officers are for all practical purposes the only people in New Jersey who can carry a weapon on their side while they're working. . . . Inability to handle pressure of the job alongside pressure of private and personal life is imperative. [Appellant] while on duty was involved in violent behavior incidents that had traumatic and devastating ramifications upon himself and his family as well as the Springfield Police Department, as well as the public.
Although the judge acknowledged that Appellant had completed an anger management course, he noted that he had not completed psychological counseling.
The judge found Levey's testimony unpersuasive because he had not conducted any diagnostic tests or analysis, as McLendon had done. The judge ascribed little weight to Levey's charge that the 2004 report by McLendon was influenced by Chief Chisholm. Furthermore, the judge found that Levey failed to convey during his testimony that he was acutely aware of the full extent of Appellant's problems. The judge noted that during Levey's testimony, he made a "cavalier generalization . . . that if every cop that [he] knew [who] drank or had an extramarital affair were kicked off the force, you wouldn't have a police force anywhere." Moreover, Levey acknowledged that he was unaware of all of the incidents in Appellant's personal and professional background that were brought out during cross-examination. In the end, the judge upheld Czech's findings and ordered Appellant's termination.
On appeal, Berman contends that the judge abused his discretion by upholding the disciplinary charges as well as the termination of his employment. We reject these contentions, which are essentially a challenge to the fact finder's assessment of the evidence. Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 492 (1956); D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997); CPC Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 375 (App. Div.), certif. denied, 158 N.J. 73 (1998).
In reviewing de novo proceedings, appellate courts play a limited role. "[U]nless the appellate tribunal finds that the decision below was arbitrary, capricious or unreasonable or [un]supported by substantial credible evidence in the record as a whole, the de novo findings should not be disturbed." In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990) (internal quotations omitted). We should only disturb the lower court's decision to avoid a "manifest denial of justice." Cosme v. Borough of East Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). Furthermore, a reviewing court must determine whether the trial court properly discharged its function in a de novo trial by making independent findings of fact. King v. Ryan, 262 N.J. Super. 401, 412 (App. Div. 1993).
Pursuant to N.J.S.A. 40A:14-147, a police officer can be removed from the police force for "incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force." In considering whether termination of a police officer is appropriate, courts are instructed to take into consideration the special role of law enforcement officers in society. Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). In Moorestown, we held:
[A] police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public . . . . [Ibid.]
A police officer cannot complain that he or she is being held to an unfairly high standard of conduct. Appeal of Emmons, 63 N.J. Super. 136, 141-42 (App. Div. 1960). Rather, "it is one of the obligations he undertakes upon voluntary entry into the public service." Id. at 142.
Here, judging the proofs against these standards, we conclude that the judge's findings of fact are supported by credible evidence. State v. Johnson, 42 N.J. 146, 162 (1964); In re Taylor, 158 N.J. 644, 656 (1999). Therefore, they are affirmed.
Appellant raised at trial, and now on appeal, that McLendon's testimony during the disciplinary hearing regarding termination was in complete contradiction to the findings in her written report, which simply called for psychiatric counseling before he could be reconsidered for duty. McLendon testified she recommended Appellant receive therapy in order to assist him with improving his interpersonal skills and it was "not a representation that was made in order to allow him to return as a police officer, but to allow him to benefit from the mental help services that . . . he needed."
Although the judge agreed with Appellant that McLendon first expressed her belief that his employment should be terminated during the disciplinary hearing, he did not find this fact to be of material importance when deciding the outcome of the case. The judge concluded that it was reasonable to infer that when McLendon found Appellant unfit for duty and unfit to carry a weapon in September of 2004, she implied that he would be incapable of returning to his employment. McLendon has never stated that Appellant should be reinstated.
We affirm substantially for the reasons expressed by Judge Barisonek in his October 26, 2006 oral opinion.