On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2005-3580.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Payne, Sapp-Peterson and Messano.
In this appeal, the Borough of Fort Lee (Fort Lee) challenges a decision of the Merit System Board (the Board) concluding that Fort Lee did not meet the burden of proof necessary to establish that Vincent W. Surace was psychologically unfit to effectively perform the duties of a police officer. The Board ordered that Surace's name be restored to the list of eligible candidates. We affirm.
On November 2, 2004, Surace was interviewed by the Fort Lee Police Department, Background Investigation Unit (BIU), for a position as police officer and, during that interview, was offered a conditional offer of employment (COE), although his background check had not been completed. On December 21, 2004, Surace underwent a psychological examination at the Institute for Forensic Psychology. The examination was performed by Dr. Guillermo Gallegos. Dr. Gallegos prepared a report of his examination and findings dated December 30, 2004, in which he concluded that Surace was not psychologically suited for employment as a police officer. He found that Surace's "arrest history is of significant concern." He noted:
In particular, considering that one of the arrests involved the possession of drugs. Even though the charges were dismissed in the CDS [controlled dangerous substance] case, the candidate admitted to having bought the drug and to have had it on him when arrested. Furthermore, a slightly different version was given by him in March of 2004 when he was interviewed in our offices for the Bergen County Sheriff's Department. There are indications from our testing that this candidate responded to our questionnaire with a less than candid attitude.
In any event, we are cognizant that the demands of a police officer in terms of discretionary judgment and the ability to confront a number of normal situations with no immediate supervision greatly differ from the demands of a Corrections Officer. We would prefer to see Mr. Surace maintain stable employment for at least one or two years and demonstrate consistent maturity, self-discipline and responsibility before we can recommend him for another law enforcement position.
Based upon Dr. Gallegos' recommendation, Fort Lee applied to the Department of Personnel (DOP) to have Surace's name removed form the police officer eligibility list. Surace appealed the removal of his name from the list to DOP and the matter was assigned to the Medical Review Panel (Panel).
Prior to the matter being considered by the Panel, Surace underwent an independent psychiatric examination performed by Dr. Alberto M. Goldwaser. Dr. Goldwaser disagreed with the opinions reached by Dr. Gallegos and concluded that Surace was psychologically fit to serve as a police officer. In his report, he specifically commented upon Dr. Gallegos' findings:
11) Dr. Gallegos based his rejection of this applicant on his opinion that Officer Surace having had an "arrest history[,]" and that was of "significant concern" to him. Dr. Gallegos did not comment on the fact that these events took place during a very specific and no longer present developmental stage, namely (late) adolescence. After accepting responsibility in these two incidents, Officer Surace demonstrated stability, and appropriate work ethics, as demonstrated in his six years of uninterrupted employment as manager of a store, and in the almost two years of service in law enforcement.
12) The psychologist['s] second objection to his becoming a police officer related to his not having an adequately long employment history in law enforcement, now 21 months and running.
13) Dr. Gallegos['] third objection to his becoming a police officer related to his understanding that Officer Surace, nine months earlier, provided "a slightly different version" of his arrest history, happening during his late adolescence. Dr. Gallegos did not provide the actual dissimilar quotes or comment on the fact that both versions truthfully depicted an event.
14) Reviewing the records provided to me, I was able to confirm that Officer Surace provided ...