On appeal from Superior Court, Appellate Division, whose opinion is reported at 253 N.J. Super. 569 (1992).
Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
This appeal presents a challenge by respondent, William M. O'Keefe, to the drug-testing program of appellant, Passaic Valley Water Commission (PVWC). PVWC has a written policy that all applicants for employment must submit to a drug test and that it may refuse to hire any applicant who tests positive. O'Keefe asserts that PVWC refused to hire him as a water-meter reader because he would not take the test. He contends that the program is unconstitutional under both the Fourth Amendment of the United States Constitution and article one, paragraph seven of the New Jersey Constitution.
The Chancery Division held that PVWC refused to hire O'Keefe for reasons independent of his unwillingness to take the test. The trial court also concluded that the drug-testing program violated both the State and federal constitutions.
Finding that "the question of constitutionality need not have been reached at all," 253 N.J. Super. 569, 575 (1992), the Appellate Division affirmed both holdings. One Judge Dissented, rejecting the Chancery Division's finding that PVWC's refusal to hire had been based on grounds independent of O'Keefe's failure to submit to the drug test. Id. at 595. He also concluded that the drug-testing program did not violate either the State or the federal constitution, a Conclusion that rendered moot PVWC's reasons for not hiring O'Keefe.
PVWC appealed as of right from the holding that its drug-testing program was unconstitutional. O'Keefe cross-appealed from the holding that PVWC had refused to hire him for reasons unrelated to his refusal to take the drug test. We hold that adequate evidence supports the finding that PVWC had refused to hire O'Keefe for reasons unrelated to his refusal to take the drug test. That holding renders moot the issue of the constitutionality of the drug-testing program.
Before the events that gave rise to this action, O'Keefe had unsuccessfully applied for employment with PVWC as a meter reader. When considering his earlier application, John Galletta, PVWC's personnel director, had interviewed O'Keefe. Thereafter, in May 1987, PVWC adopted a policy requiring all applicants to submit to a drug test. The stated purpose of the policy was to decrease employee absenteeism and the health costs associated with illegal drug use, and to identify "stable" candidates.
Shortly after PVWC instituted the program, a meter-reader position became available. PVWC called O'Keefe for an interview. Galletta, joined by the foreman of PVWC's water-meter-reader department, once again interviewed O'Keefe. Several days later, PVWC asked O'Keefe to fill out various forms, including an IRS W-4 form, insurance forms, and an agreement to purchase safety shoes. O'Keefe also signed a drug-test consent form explaining PVWC's policy. The form read:
It is the policy of the Passaic Valley Water Commission to have all new employees submit to a drug test as part of their application for employment with the Commission.
I understand that as part of my pre-employment application with Passaic Valley Water Commission I will have to undergo a drug test at no cost or obligation to me by a doctor employed by the Commission.
I hereby agree that the taking of this drug test is voluntary on my part and that the results will remain confidential between the ...