On appeal from the Merit System Board.
King, Long and Stern. The opinion of the court was delivered by Long, J.A.D. Stern, J.A.D., concurring.
Petitioners, Thomas Caldwell, Herbert Downing and Gerald Neal, here challenge a decision of the Merit System Board (Board) affirming their termination as correction officers by the Department of Corrections (DOC) for failure to submit to drug testing. DOC cross-appeals from an award of back pay to petitioners for a period during which the Board held that their due process rights were violated. We affirm in part and reverse in part.
In January 1988, the Department of Corrections issued a Memorandum regarding the procedures for drug screening correction officers and other personnel. It provides:
It is of paramount interest to this Department that employees who are responsible for the supervision, custody and care of inmates, and who are authorized to carry a firearm pursuant to 2C:39-6, are neither using nor under the influence of illicit drugs. Toward this end, the following drug screening procedures have been developed for use by this department. They are modeled after and incorporate the procedural safeguards of the law enforcement drug screening guidelines promulgated by the Attorney General of the State of New Jersey on October 22, 1986, and will become effective at the expiration of thirty (30) days.
Urine samples shall be ordered taken from a permanently appointed correction officer or supervisor or an Internal Affairs investigator or supervisor whenever
there is individualized reasonable suspicion to believe that the officer is using or under the influence of illegal drugs.
SPECIMEN ACQUISITION PROCEDURE
A urine sample shall be ordered from a correction officer or supervisor or Internal Affairs investigator or supervisor, when there is individualized, reasonable suspicion to believe that the officer or supervisor or Internal Affairs investigator or supervisor is using or under the influence of illegal drugs. Prior to requesting that an officer or supervisor or Internal Affairs investigator or supervisor or correction officer recruit not in COTA, submit a urine sample, the department shall document the basis for reasonable suspicion and prepare a confidential report. The order to submit a urine specimen shall be given to the correction officer or supervisor or Internal Affairs Investigator or supervisor or correction officer recruit by the institution's Superintendent or designee, or in the case of Central Office custody employees, by their unit supervisor or designee, who shall document the date and time that the order was given.
The Memorandum also states that the urine sample shall not be ordered without the approval of the Commissioner, the Deputy Commissioner or the Assistant Commissioner for Adult Institutions. According to the Memorandum, if an officer, supervisor, Internal Affairs investigator, supervisor, or correction officer recruit refuses to provide the sample, he/she "will be subject to disciplinary charges and dismissed from employment if, after a fair and impartial hearing, it is determined that the officer, supervisor, Internal Affairs investigator, supervisor, or correction officer recruit was properly ordered to undergo testing." Each of the petitioners acknowledged receipt of the Memorandum on January 7, 1988.
In May 1988, Senior Investigator Barney Dyrnes of the Internal Affairs Unit at the New Jersey State Prison became involved in an investigation of the alleged widespread drug use and distribution by staff members at the prison. Investigator Dyrnes, whose responsibility it is to investigate all written and oral complaints of alleged crimes in the prison, received information in late April 1988 from a staff member at the prison (confidential "informant A") concerning the alleged use or distribution of controlled dangerous substances (CDS) by "staff members inside and outside the institution." At the time he contacted Dyrnes, informant A had discontinued his own use
and sales of CDS and came forward because "he felt he ought to" and "was concerned for the safety of other people who worked there." He told Dyrnes that based on his prior involvement with CDS, he estimated that 45 percent of the staff at the prison were involved with the use of CDS. Informant A also stated that two ex-inmates were involved in the sales and distribution of CDS with numerous staff members at the prison. He agreed to forward the information to the police and participate in the ensuing investigation. Eventually, on June 18, 1988, he supplied a written report identifying staff members who were known to be involved with CDS.
Dyrnes relayed this information to his supervisor and then to the office of the Commissioner. In June 1988, a full-scale "sting operation" was set up by the Internal Affairs Unit acting in concert with the New Jersey State Police, using staff and inmate informants, to investigate drug use and sales in the prison. As part of the investigation, Dyrnes provided a private telephone number by which inmates could contact him and also kept notes of these telephone conversations and other private conversations he had had with informants.
On August 19, 1988, the investigation had to be brought to an abrupt halt because one of the major suspects of the investigation, inmate John Bailey, died in his cell of a drug overdose. Dyrnes was informed of Bailey's death by a fellow investigator at the prison at 4:00 a.m. At approximately 8:30 a.m., Dyrnes was contacted by inmate informant B. Dyrnes told him of Bailey's death. B opined that it was due to a drug overdose and told Dyrnes that Bailey had kept his drugs in his rectum. The medical examiner was instructed to inspect Bailey's anal cavity and, as a result, found three separate packages of CDS. Informant B contacted Dyrnes again and told him that Bailey had received the drugs from Senior Correction Officer Marshall, and that the other half of that particular drug shipment had gone to inmate Fontanez. Fontanez's cell was searched and he was interviewed. Marijuana was found in a bag under the sink in his cell and cocaine, heroin, more marijuana and $35
in cash were found in a box under the cell bed. He admitted that the drugs belonged to him and that he got them from Bailey. He said that Bailey had been given half the drugs as payment for arranging to get the drugs inside the institution. Fontanez subsequently gave an additional statement detailing his extensive drug involvement with Bailey and Marshall. On that same date, Dyrnes and his supervisor, Principal Investigator Thadeus Pogorzelski, contacted Assistant Commissioner Hilton.
Hilton is one of the three individuals authorized by the DOC's drug procedures Memorandum to order a urinalysis of a staff member. Hilton had previously met with Pogorzelski concerning the drug investigation in April and was kept informed of the ongoing investigation by Chief Investigator Ira Friedman who meets with Hilton on a daily basis. Hilton was told of the inmate's death, the disclosures of informant B, the discovery of drugs in the inmate's anal cavity and in inmate Fontanez's cell and was also aware of the fact that the State Police were preparing to arrest Marshall because he had recently purchased drugs from a female undercover agent at a bar in Trenton as part of the ongoing investigation. These events, according to Hilton,
altered things because we had a dead inmate and there were a number of legal law enforcement issues under question of which strict liability application is a term that was bantered around, which frankly I did not understand but in layman's terms was Marshall in fact if he brought the stuff in responsible for the death. How wide-spread was this? What was the potential for retaliatory, if you will, prison violence and the fact that New Jersey has a death penalty, there's a dead body, is it a homicide? It was a very, very stressful and a very major concern to me.
As a result of this concern, he called a meeting with Dyrnes, Pogorzelski, and Special Assistant Alfred Piperata (a former State Police Captain who was, at the time, serving as Special Assistant to the Commissioner overseeing implementation of the drug screening program) to review the information. Dyrnes and Pogorzelski brought several boxes of information
with them and gave Hilton a verbal briefing which lasted approximately two hours:
Well, initially we sat down and [Pogorzelski] generally again reviewed for me the contact with the informant and the fact that drugs had been found in Bailey's rectum, the other drugs had been found and then gave me names of some 32 correction officers that were at that point targets in the investigation and then Dyrnes went through for me the cast of informants, both inmate informants and officer informants, and would identify inmate informant 21 or whatever the code name for that informant was, would give me what the slang term is the pedigree, but would give me the basis or the history or the track record of that informant insofar as making that what we would consider, what I would consider a reliable informant, that would take informant 21, this is an inmate, he's done, given us a scape, a shank, a weapon, drugs, we've confirmed prior use by federal authorities, been used by other enforcement authorities. Has done these things for us. I would in almost all cases come back, "Is he asking for anything?" "Does he, you know, does he have anything in here that would compromise his quality?" The questions would be answered and we went through the inmate informants and I was convinced that the informants that were discussed with me were reliable and creditable [ sic ] and then we went through employees, with most cases officer informants and again the question of credibility with a sworn officer is my judgment greater than it is with an inmate and I was particularly questioning what is the, what is the motivation for this employee. Is there anything that would, that would cause this employee to give such information for any self-serving purpose? For example, was there any romantic link between, you know, somebody's girlfriend or wife or is there any known hostility and again I was convinced that none of those elements were there so they were defined for me. I was shown some computer printouts of money transferrals of inmates and a variety of other documents and it took, it took every bit of two hours, I suspect, and then basically I was advised and agreed that Officer Marshall would be called to the prison that evening and that I, on the basis of individualized reasonable suspicion, was ordering that he'd give a urine and that the New Jersey State Police would place him under arrest.
When Hilton went through the list of names with Dyrnes, he was told how many informants had supplied information on each officer and whether the informants were staff, inmate, or both. Dyrnes provided Hilton with information from inmate informants only if it was corroborated with that of staff informants. Hilton did not ask Dyrnes the particular names of the informants because it would have contributed nothing to his decision-making process and because he believed their anonymity would help him to remain objective. At the conclusion of the August 19 meeting, Hilton instructed Dyrnes to prepare
a report of his investigation and the information he received. Dyrnes's report, which is dated November 15, 1988, is based on the notes he took of his private conversations with the informants. The report contains the following information with regard to Gerald Neal:
1. Staff informant A [stated] that he used CDS with Neal and arranged sales of CDS.
2. Staff informant C [stated] that he used CDS with Neal.
3. Reliable confidential inmate informant B who has provided reliable information on three previous occasions [stated] that Neal attempted to take over Marshall's drug business.
It contains the following information about Herbert Downing:
1. Staff informant A [stated] that he purchased CDS from H. Downing;
2. Staff informant C [stated] that he used CDS with H. Downing;
3. Inmate informant H who provided reliable information on two previous occasions alleged that H. Downing was also introducing CDS into the institution.
With regard to Thomas Caldwell, the report states:
1. Staff informant A [stated] he was present when T. Caldwell used CDS to include selling CDS to other staff members.
2. Reliable confidential inmate informant F who provided reliable information on nine previous occasions alleged that T. Caldwell is a main actor along with G. Neal and L. Page and L. Marshall introducing CDS ...