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Matter of Drake

Decided: August 23, 1994.

IN THE MATTER OF KENNETH DRAKE, APPELLANT,
v.
COUNTY OF ESSEX, ESSEX COUNTY JAIL AND NEW JERSEY DEPARTMENT OF PERSONNEL, MERIT SYSTEM BOARD, RESPONDENTS.



On appeal from the Merit System Board, New Jersey Department of Personnel.

Before Judges Skillman, Kestin and Wefing.

Skillman

The opinion of the court was delivered by SKILLMAN, J.A.D.

This is an appeal from a final decision of the Merit System Board sustaining appellant's removal from his position as a correction officer in the Essex County Jail. The appeal turns on whether the odor of marijuana detected in a bathroom to which a limited number of jail employees had access was sufficient to establish the "individualized reasonable suspicion" of drug use required to subject those employees to drug testing.

Appellant's removal was based upon policies and procedures adopted by the Essex County Department of Public Safety, which provide that "any employee who tests positive for illicit drugs or refuses to produce a sample when so ordered will be terminated from employment." Appellant was one of four officers assigned to perform guard duties on the eighth floor of the jail on February 17, 1990. This assignment gave appellant access to a bathroom adjoining the sub-control room on this floor. The only other persons with access to this bathroom were the other guards on duty and on occasion nurses and workmen assigned to perform work on that floor. A confidential informant detected the odor of marijuana in the bathroom during appellant's shift and reported this information to supervisory authorities at the jail. After the warden and an internal affairs investigator personally interviewed the confidential informant to verify the reliability of this information,*fn1

the warden ordered the four correction officers who had access to the bathroom when the odor of marijuana was detected to provide urine samples for drug testing. The warden's order was made pursuant to a section of the Department's policies and procedures which states that "[a] urine sample will be ordered from a Correctional employee . . . when it has been determined that individualized reasonable suspicion exists to believe that an employee may be under the influence of an illegal drug." Appellant's urine sample tested positive for marijuana and cocaine.

Based on these drug test results, Essex County brought disciplinary charges against appellant which resulted in his removal. Appellant appealed his removal to the Merit System Board, which referred the matter to the Office of Administrative Law for a hearing. An Administrative Law Judge concluded that Essex County had failed to establish "an individualized reasonable suspicion directed at appellant" because the warden's suspicion of drug use "was not specific to any individual officer, but rather was directed to all officers who had access to [the bathroom adjoining the sub-control room]." Consequently, the Administrative Law Judge recommended that the charges against appellant be dismissed.

However, the Merit System Board rejected this recommended decision, concluding that "as only four persons had access to the bathroom at that time, the probability was great that one or more of those persons was responsible for the odor detected in the bathroom," and thus "the suspicion of drug usage was sufficiently individual to require each of the four officers to undergo drug testing." We agree with this reasoning and therefore affirm the

Merit System Board's final decision sustaining appellant's removal.

A public agency is required to abide by its own policies and procedures regarding the drug testing of its employees. See Caldwell v. State Dep't of Corrections, supra, 250 N.J. Super. at 609 ("Given that . . . petitioners were informed by and acknowledged receipt of the procedures which clearly stated that they would only be ordered to submit to the test if the Commissioner found there was a 'reasonable individualized suspicion,' we view that standard as the applicable one.") Therefore, even assuming that a correctional facility could authorize random drug testing of its staff, see Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602, 626-33, 109 S. Ct. 1402, 1418-22, 103 L. Ed. 2d 639, 665-70 (1989); American Fed'n of Gov't Employees, AFL-CIO v. Roberts, 9 F.3d 1464, 1467-68 (9th Cir. 1993); McDonell v. Hunter, 809 F.2d 1302, 1307-08 (8th Cir. 1987), the operation of the Essex County Jail is governed by its own policies and procedures, which mandate drug testing only when there is "individualized reasonable suspicion" of an employee's drug use.

Reasonable suspicion is "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); accord Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 191, 627 A.2d 602 (1993). In fact, "reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); accord State in the Interest of H.B., 75 N.J. 243, 251, 381 A.2d 759 (1977) ...


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