On appeal from the Merit System Board.
Approved for Publication October 11, 1996. As Corrected November 28, 1996.
Before Judges Landau, Wallace and Kimmelman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by
Henry Jackson was employed since 1981 as a firefighter by the City of Plainfield. In 1990, he was suspended after police discovered him in the home of a drug dealer while they were executing a search warrant. Johnson admitted to smoking marijuana with the dealer, and to having purchased and used cocaine. He tested positive for cocaine even after a Preliminary Notice of Disciplinary Action had been served upon him.
Following his completion of a one month rehabilitation program, Jackson's physician said he was able to return to work. Plainfield's physician concurred. A departmental hearing was held, and Jackson was allowed to return to work subject to compliance with certain conditions. He signed a "Letter of Agreement" acknowledging that his employment was "contingent upon my abstaining from illegal drugs or abuse of any chemical substance both on and off duty". Jackson further agreed to submit to drug testing at any time and that if he were found to be using drugs, he would "forfeit my position and all benefits relating thereto". The conditions of reinstatement were consistent with the fire department's substance-abuse policy contained in Article XVII of the collective bargaining agreement with Jackson's union.
On August 23, 1993, Jackson tested positive for cocaine in a random drug test and was again suspended pursuant to a Preliminary Notice of Disciplinary Action. He entered a second drug rehabilitation program between October 1 and October 15, 1993, and was released with a physician's letter which opined that his prognosis for recovery was excellent.
Plainfield declined to permit him to return to duties as a firefighter. A departmental hearing was held in November, and Jackson was terminated in December, 1993. He appealed to the Merit System Board. Facts and exhibits were stipulated by the parties on cross-motions for summary decision before an Administrative Law Judge, who granted Plainfield's motion and denied the Jackson motion in an initial decision dated May 19, 1995.
The ALJ deemed Jackson a handicapped person under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 10:5-42, but found the City could remove him if it could no longer reasonably accommodate his handicap, i.e., drug addiction. Recognizing that our decision in In re Cahill, 245 N.J. Super. 397, 401, 585 A.2d 977 (App. Div. 1991), encourages an employer, "where feasible", to give an employee at least one chance at rehabilitation prior to termination, the ALJ noted that Jackson was given that opportunity in 1990, and that the City reemployed him after he completed an in-patient program. Further, the ALJ concluded that the City had established that employment of a firefighter who is under the influence of a controlled dangerous substance was a hazard to both the fire department and the general public. The ALJ also determined that:
Pursuant to § 1.17:1-4 of the collective bargaining agreement appellant executed a letter of agreement on August 20, 1990, wherein he acknowledged that his continued employment is and remains contingent upon his abstaining from illegal drugs or abuse of any chemical substance both on and off duty. He further agreed to enroll and actively participate in a drug rehabilitation program. Appellant further agreed that he would forfeit his position and all benefits relating thereto if he were to engage in any further substance abuse or refuse to submit to drug testing...
...the collective bargaining agreement is consistent with the LAD and thus it controls. The collective bargaining agreement provides a reasonable accommodation because it allows for rehabilitation prior to termination. However, it does not provide or specify ...