In the Matter of Arnaldo Lopez CSC Docket No (Civil Service Commission, decided February 24, 2010)

Transcription

1 In the Matter of Arnaldo Lopez CSC Docket No (Civil Service Commission, decided February 24, 2010) The appeal of Arnaldo Lopez, a Police Officer with Brick Township, of his removal effective May 23, 2008, on charges, was heard by Administrative Law Judge Jeff S. Masin (ALJ), who rendered his initial decision on December 28, Exceptions and cross exceptions were filed on behalf of the appointing authority and on behalf of the appellant. The ALJ originally rendered an initial decision on August 28, 2009, recommending reversal of the removal. However, prior to the matter being presented to the Civil Service Commission (Commission) for a final administrative determination, the ALJ filed a request to have the matter remanded to the Office of Administrative Law (OAL) for further proceedings. Accordingly, at its meeting on September 16, 2009, the Commission did not adopt the ALJ s initial recommendation to reverse the removal and remanded the matter to the OAL. In his December 28, 2009 initial decision, the ALJ recommended that the removal be modified to a six-month suspension. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Commission, at its meeting on February 24, 2010, did not adopt the ALJ s recommendation to modify the removal to a six-month suspension. Rather, the Commission upheld the removal. DISCUSSION The appellant was charged with conduct unbecoming a public employee, violation of Department policy regarding drug and alcohol use and testing of employees, and other sufficient cause. Specifically, the appointing authority asserted that the appellant was arrested for disorderly conduct and tested positive for a controlled substance that he possessed illegally. The ALJ set forth in his initial decision that the charges in the instant matter arose from the appellant s arrest on September 9, 2007, which led to a drug test. The result of that test showed the appellant had a controlled substance in his system, Alprazolam (Xanax). Additionally, at the time of his arrest the appellant had two 3 mg Xanax pills in his possession. With regard to possession and use of Xanax, the ALJ notes that the appellant acknowledged that he possessed and used Xanax. However, the appellant asserted that he had been prescribed Xanax by Dr. Angelo Chinnici and he was to have the medication with him at all times. The appellant testified that when his Xanax prescription and his other prescriptions for similar medications had run out, he took

2 some of his father s prescribed Xanax. The appellant claimed Dr. Chinnici had informed him that it was permissible to borrow Xanax from someone else if he ran out of pills. The ALJ found that Dr. Chinnici had prescribed the appellant 0.25 mg Xanax in 2005 for post-traumatic stress syndrome (PTSD). Additionally, the ALJ found it highly likely that Dr. Chinnici advised the appellant that because of his condition he should always have Xanax available for his immediate use. As Dr. Chinnici did not testify at the OAL, the ALJ examined the different letters from Dr. Chinnici and the telephone conversation between Police Captain James Riccio and Dr. Chinnici concerning the appellant s Xanax prescription. In this regard, the ALJ found that Dr. Chinnici did not tell the appellant that he could borrow Xanax pills at will or even that he could or should do so if he did not have any Xanax of his own on an ordinary weekday. Therefore, the ALJ concluded that the appellant s possession and use of 3 mg Xanax pills was neither authorized by prescription nor by any advice or direction from Dr. Chinnici and that his use and possession of this drug was illegal and violated the Department policy. Further, the ALJ determined that the appellant s act of illegal possession and use of a controlled substance constituted conduct unbecoming a public employee. With regard to the penalty, the ALJ indicated that the particular circumstances of this case warranted only a six-month suspension. Specifically, the ALJ noted that there was no evidence that the appellant was using the drug recreationally or was involved in illegal drug activity. The ALJ stated that the appellant was using a drug that had previously been prescribed to him to deal with PTSD, which arose from service to his country in Iraq. In its exceptions and cross exceptions, the appointing authority argues that based on the ALJ s finding that the appellant violated the Department policy on drug testing and the Attorney General (AG) Guidelines on drug testing, the appellant s removal should have been ordered. It asserts that both the Department policy and AG Guidelines state that an officer must be terminated from employment as a result of a positive test result for illegal use of drugs. Additionally, the appointing authority contends that the fact the appellant served in the military and is suffering from PTSD is immaterial. It states that many police officers in New Jersey have served in the military and this does not give them carte blanche to ingest controlled dangerous substances not prescribed to them. Further, the appointing authority asserts that the ALJ correctly found that the appellant illegally possessed and ingested Xanax. In this regard, it contends that the ALJ s determination that Dr. Chinnici did not tell the appellant that he could borrow Xanax pills at will was proper and consistent with the evidence presented at the OAL. In his exceptions and cross exceptions, the appellant argues that the ALJ improperly found that Dr. Chinnici did not tell the appellant that he could borrow

3 Xanax pills. Rather, the appellant claims that Dr. Chinnici emphatically stated that he told the appellant to borrow Xanax from his father rather than ever be without it. The appellant contends that the evidence in the record supports his assertion. He claims that he did not possess Xanax illegally as he was following the explicit instructions of his licensed physician by borrowing the Xanax. With regard to the penalty, the appellant argues that the ALJ clearly and compassionately stated the circumstances of his situation, and based on this understanding of the situation and the fact that his possession of Xanax fell into a gray area, the ALJ properly found that termination was not the appropriate penalty. In this regard, the appellant argues that since he did not illegally possess and use Xanax, there should be no penalty imposed. Upon its de novo review of the record, the Commission agrees with the ALJ s determination regarding the charges. However, the Commission but does not agree with the ALJ s recommendation to modify the removal to a six-month suspension. Rather, the Commission upholds the removal. The appellant argues in his exceptions that Dr. Chinnici emphatically stated that he told the appellant to borrow Xanax from his father rather than ever be without it. The ALJ disagreed. The ALJ detailed the letters from Dr. Chinnici he reviewed, the recorded telephone conversations between Dr. Chinnici and Captain Riccio, and the documents submitted into evidence, including the transcripts of Dr. Chinnici s testimony at the departmental hearing. Upon reviewing all of this material, the ALJ concluded that Dr. Chinnici did not tell the appellant that he could borrow Xanax pills at will or even that he could or should do so if he did not have any Xanax of his own on an ordinary weekday. The Commission agrees with this finding. The appellant has not presented any evidence to support his claim that Dr. Chinnici emphatically stated that he told the appellant to borrow Xanax from his father rather than ever be without it. The most that can be gathered from the evidence presented was that Dr. Chinnici told the appellant that he should never be without Xanax, and that Dr. Chinnici had advised other patients they could borrow medication from others if they could not get in contact with him for a prescription refill. The evidence does not clearly and directly indicate that the appellant was told he could borrow pills from his father under the circumstances in which he borrowed and used the Xanax. Moreover, the Commission notes that the appellant s borrowing of his father s Xanax was in 2007, and the appellant s prescription was from 2005 and apparently never refilled thereafter. Further, the 3 mg pill taken by the appellant was a dosage 12 times his original 0.25 mg prescription. Accordingly, the Commission agrees with the ALJ s finding that the appellant s possession and use of Xanax on the dates in question was neither authorized by prescription nor by any advice or direction from Dr. Chinnici and that his use and possession of this drug was illegal and violated the Department policy.

4 With regard to the penalty, the Commission s review is de novo. In addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Board also utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). Although the Commission applies the concept of progressive discipline in determining the level and propriety of penalties, an individual s prior disciplinary history may be outweighed if the infraction at issue is of a serious nature. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). It is settled that the theory of progressive discipline is not a fixed and immutable rule to be followed without question. Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 N.J. 474 (2007). Further, even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. See Henry v. Rahway State Prison, supra, 81 N.J. at In this regard, the Commission emphasizes that a Police Officer is a law enforcement officer who, by the very nature of his job duties, is held to a higher standard of conduct than other public employees. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990). In the instant matter, the current hearing record evidences that the appellant was hired by the appointing authority in December 2003 and has no disciplinary history. Further, although the Commission is sympathetic to the appellant s issues with PTSD, his possession and use of Xanax without a prescription was clearly inappropriate and warrants a severe sanction given the appellant s position as a law enforcement officer. Moreover, the Commission notes that an unrefuted positive test result for a controlled substance use has uniformly been held by the Commission to warrant removal from employment for law enforcement employees. See e.g., In the Matter of Bruce Norman, Docket No. A T1 (App. Div. January 26, 2006), cert. denied, 186 N.J. 603 (2006); In the Matter of Alfred Keaton (MSB, decided November 8, 2007). Accordingly, based on the totality of the record, the Commission concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and the removal should be upheld. Finally, the Commission notes that since the appellant s actions were egregious enough to warrant removal, there is no need to determine whether the appellant s removal was mandated pursuant to AG Guidelines. ORDER The Civil Service Commission finds that the action of the appointing authority in imposing a removal was appropriate. Therefore, the Commission affirms that action and dismisses the appeal of Arnaldo Lopez.

5 This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.