In the Matter of Kevin George, Newark CSC Docket No (Civil Service Commission, decided February 25, 2009)

Transcription

1 In the Matter of Kevin George, Newark CSC Docket No (Civil Service Commission, decided February 25, 2009) The appeal of Kevin George, a Police Sergeant with the City of Newark (City), of his removal, effective April 11, 2001, on charges, was heard by Administrative Law Judge Robert J. Giordano (ALJ), who rendered his initial decision on January 12, Exceptions were filed on behalf of the appellant, and cross-exceptions were filed on behalf of the appointing authority. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on February 25, 2009, accepted and adopted the ALJ s Findings and Conclusions and his recommendation to uphold the removal. DISCUSSION By way of background, the appellant was removed, effective April 11, 2001, on charges related to his violation of the Newark Police Department s policy regarding drug usage. Specifically, the appointing authority asserted that the appellant was selected for a random drug screening. At the State Toxicology Laboratory, the appellant s urine sample tested positive for the presence of cannabinoids, the metabolites of marijuana, using the florescence polarization immunoassay (FPIA) test. Specifically, the FPIA test revealed ng/ml of cannabinoids, well over the threshold limit of 20 ng/ml. In order to confirm the positive test, the State Toxicology Laboratory employs the gas chromatography/mass spectrometry (GC/MS) test, utilizing a 10 ng/ml cutoff level. This test resulted in a reading of 23 ng/ml of cannabinoids in the appellant s sample. Upon the appellant s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing. On October 23, 2003, the ALJ rendered an initial decision recommending that the appellant s removal be upheld. Upon the Merit System Board s (Board s) 1 de novo review of the record, the appellant s removal was reversed. In this regard, the Board noted that, following the appellant s positive drug test for marijuana, he requested that his split sample be tested, and the result of that test was negative for cannabinoids. However, the laboratory to which the 1 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

2 split sample was sent was not advised by the City of the appropriate cutoff levels to utilize in conducting its test. In dismissing the charges against the appellant and reversing his removal, the Board found: It is clear that the purpose of a split sample provided to an individual is to allow that individual to have that sample tested, after the initial test result is positive, in an attempt to demonstrate that the initial test is somehow invalid or to dispute a false positive finding. In this case, [the appellant s] ability to bring forth such a challenge was thwarted by the City since the laboratory where the split sample was sent was apparently not advised of the cutoff threshold at which the initial test was performed... The fact that [the City did not advise the laboratory of the proper cutoff level] deprived the appellant of his due process regarding his ability to refute the initial drug test. See In the Matter of Kevin George (MSB, decided December 3, 2003). The appointing authority filed an appeal of that decision with the Superior Court, Appellate Division. In the Appellate Division s March 29, 2006 decision, it determined that the use of a different cutoff level by the independent laboratory did not, per se, constitute a violation of the appellant s due process rights. The Appellate Division vacated the Board s prior decision and remanded the matter to the Board, noting that: [o]n the remand, the parties shall be accorded an opportunity to address the open issues discussed in this opinion, including the statistical reliability of the GC/MS test, the City s reasons for delaying disclosure of LabCorp s test results, any information supplied by the State to licensed independent labs, and LabCorp s actions and practices from receipt of the split specimen until the date of the [initial] hearing before the ALJ. George v. Newark, 384 N.J. Super. 232, 245 (App. Div. 2006). In accordance with this decision, the Board remanded the matter to the OAL for additional proceedings. See In the Matter of Kevin George (MSB, decided April 26, 2006). Following the remand proceedings, the ALJ found that none of the expert witnesses presented directly attacked the reliability of the GC/MS test performed on the appellant s sample. Although he noted that the experts expressed concern with the lack of standard protocols in the State Laboratory

3 at the time the test was conducted, the ALJ found that there was sufficient evidence to demonstrate that the GC/MS testing produced an accurate result. The ALJ emphasized that the GC/MS test results for the appellant s sample were ng/ml and ng/ml, both above the threshold of 10 ng/ml. He also underscored that equipment testing performed prior to the testing of the appellant s sample demonstrated that the instrument was operating properly and was appropriately calibrated. The ALJ noted that the appellant s experts opined that the GC/MS test results in this instance were unreliable due to the lack of established protocols in the State Laboratory, and they testified that they were unconvinced that the test results could be reproduced. However, the ALJ concluded that these two experts were less credible than the appointing authority s expert, and he afforded their opinions less weight than that given to the opinion of the appointing authority s expert. In this regard, the ALJ emphasized that the appointing authority s expert witness openly and candidly testified regarding the State Laboratory s lack of standard operating procedures at the time of the drug test at issue. Nevertheless, the ALJ found that he convincingly testified that the GC/MS test conducted on the appellant s sample was statistically reliable. The ALJ also addressed the 10 month time period between the testing of the appellant s split sample and the disclosure of those test results to the appellant. He found that the delay resulted from the appointing authority s confusion regarding the tests to be performed on the split sample and innocent errors it made in the paperwork. The ALJ concluded that there was no evidence that the delay was intentional or in bad faith. Moreover, the ALJ found that LabCorp only performed the immunoassay screening test on the appellant s specimen, and it resulted in a finding of 29 ng/ml. A LabCorp representative testified that, since this reading was below the 50 ng/ml cutoff utilized by LabCorp, it reported a negative result and discarded the appellant s sample without further testing. However, the ALJ indicated that the cutoff level was actually 20 ng/ml, and the ALJ suggested that the appellant s split sample was also positive for the presence of marijuana. Based on these findings, the ALJ recommended upholding the charges and the removal. In his exceptions, the appellant contends that, in his initial decision, [t]he ALJ made numerous errors, including misinterpretation of the Appellate Division s decision to remand, misapplication of the evidence adduced during the hearing, misstatement of scientific principles, misapplication of the law and making assumptions that are without basis in fact or on the record before him. The appellant asserts that the ALJ ignored evidence that demonstrated that the State Laboratory s testing procedures were deficient and, thus, rendered the test results invalid, and he suggests

4 that the test results at issue could not have been reproduced, which is a necessary indicator of scientific reliability. The appellant argues that his experts convincingly testified regarding the flaws in the State Laboratory s processes, and he maintains that the ALJ, thus, should have found that the test results were not statistically reliable. In addition, the appellant contends that the ALJ found his expert witnesses to be unreliable, based in part on their failure to analyze and address the results of the immunoassay testing performed by LabCorp. The appellant avers that LabCorp s testing was not an issue within the parameters of the remand; thus, he suggests that his experts did not prepare scientific opinions of LabCorp s testing procedures. The appellant also takes issue with the ALJ s suggestion that the LabCorp test results were not discussed by his experts because it would have been extremely damaging to [his] case. He characterizes the immunoassay test as inherently unreliable. In response, the appointing authority maintains that it sustained its burden of proving that the appellant tested positive for marijuana use. It contends that the ALJ correctly relied upon the detailed and lengthy testimony presented by its expert witness regarding the validity of the GC/MS test results, and he properly found that the appellant s expert witnesses did not present any scientific evidence to impugn the reliability of the GC/MS test results. After its own thorough review of the record, the Commission agrees with the ALJ s determination of the credibility of the witnesses, including his assessment of the expert testimony presented, and finds that the appointing authority has not proven the charges by a preponderance of the evidence. The Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B- 10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this case, upon thorough review, the Commission finds that there is nothing in the record evidencing that the ALJ s findings regarding the disciplinary charges were flawed or were not based on the credible evidence in the record.

5 In particular, the Commission agrees with the ALJ s assessment of the expert testimony in this matter and his decision to afford more weight to the expert testimony of the appointing authority s witness. See e.g., In the Matter of David Figueroa (MSB, decided February 9, 2005), aff d, Docket No. A T1 (App. Div. February 8, 2006). The ALJ appropriately found that the appointing authority s witness candidly acknowledged the lax procedures employed by the State Laboratory at the time of the appellant s drug test. However, he also convincingly testified that these procedures did not impugn the reliability of the GC/MS test. The record lacks any meaningful dispute that GC/MS testing is a reliable method by which to identify drug use, and the Commission finds no reason to doubt the validity of the results of the appellant s drug test. 2 Moreover, other than his general attacks on the ALJ s initial decision, the appellant has not demonstrated that the GC/MS test at issue produced an unreliable result. It does not follow that any technical deviation from the accepted drug testing procedures warrants the nullification of the results of a drug test. See In the Matter of Mario Lalama, 343 N.J. Super. 560 (App. Div. 2001) (Despite flaws in the chain of custody, a drug test was still valid where the record showed a reasonable probability that the integrity of the sample was maintained). 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 Commission 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). 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). The Commission is particularly mindful of this standard 2 The Commission does note, for the record, its disagreement with the ALJ s strong reliance on the results of the immunoassay test performed by LabCorp as additional evidence that the appellant tested positive for drug use. The record establishes that this immunoassay test is not as accurate or reliable as GC/MS testing and is, therefore, only utilized as an initial screen to determine whether GC/MS testing will be performed. Thus, it is not, by itself, a reliable indicator of drug use.

6 when disciplinary action is taken against a supervisory officer in a police department. Further, the Commission notes that an unrefuted positive test result for drug use has uniformly been held 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). It must also be emphasized that removal is mandated by the Attorney General s Law Enforcement Drug Testing Policy (AG Guidelines). Accordingly, based on the totality of the record, the Commission concludes that the appointing authority has met its burden of proof, and it finds that removal is neither unduly harsh nor disproportionate to the offense and should be upheld. ORDER The Civil Service Commission finds that the action of the appointing authority in imposing the removal was justified. Therefore, the Commission affirms that action and dismisses the appeal of Kevin George. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.