On appeal from Merit System Board, OAL Docket No. CSV 10952-97.
Before Judges Skillman and Lisa.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The City of Paterson appeals from a final decision of the Merit System Board (Board), which rejected a recommended initial decision of an Administrative Law Judge (ALJ) upholding the City's removal of appellant Mario Lalama from his firefighter position for using cocaine. The sole ground of the Board's decision was that the City failed to present adequate evidence of the "chain of custody" of the urine sample that tested positive for cocaine.
After informing his supervisors that he had an alcohol abuse problem, appellant was placed on paid sick leave and admitted into a residential substance abuse program for one month. Upon returning to active duty, appellant entered into an agreement with the City that he would be placed on probation. One of the conditions of appellant's probation was that he submit to random drug testing.
Armando Cortez was the Paterson Fire Department official responsible for administering drug tests to firefighters, which involved taking a urine sample and sending it to an independent laboratory for analysis. Cortez had processed more than 100 urine samples before taking the sample from appellant that resulted in the termination of his employment.
Appellant's urine sample was taken on the morning of September 9, 1996, in the main bathroom at Fire Headquarters. Appellant voided into a container provided by Cortez, then sealed the container and placed his initials on the seal. Appellant placed the container in a bag, and both he and Cortez signed the form that accompanied the container when it was sent to the laboratory. The same preprinted identification number that was on the form also was placed on a label affixed to the seal on the container and the bag enclosing the container. Cortez retained a copy of the form and gave a copy to appellant. Cortez placed the bag containing the urine sample in a locked box for which only he and the laboratory's courier had keys. He then called the courier to pick up the sample and later that afternoon observed the courier come and take the sample. However, the courier did not fill in the blank for his signature on the transmittal form, and Cortez failed to obtain a receipt from him.
The urine sample was received by the testing laboratory, Laboratory Corporation of America, the following day, September 10, 1996, with the seal on the container still intact, accompanied by two copies of the chain of custody transmittal form that included the preprinted identification number. The laboratory confirmed that the identification number on the urine sample container conformed with the number on the form, and when it analyzed the sample, it tested positive for cocaine.
After Paterson received the results of the drug test, it suspended appellant, effective September 18, 1996, and charged him with conduct unbecoming a public employee, in violation of N.J.A.C. 4A:2-2.3(a)(6); violating the Fire Department's rules and regulations, in violation of N.J.A.C. 4A:2-2.3(a)(11); failing to conduct his private life in such a manner as to avoid bringing the Department into disrepute, in violation of section 2:1.1 of the municipal ordinance governing the conduct of Fire Department employees; and taking drugs not duly prescribed and necessary for health, in violation of section 2:2.12 of the ordinance.
After a departmental hearing, appellant was found guilty of the charges and removed from his position, effective April 15, 1997.
Appellant appealed his removal to the Board, which referred the matter to the Office of Administrative Law. Based on the evidence presented at a hearing, an ALJ concluded that appellant was guilty of the charges of conduct unbecoming a public employee, failing to conduct his private life in such a manner as to avoid bringing the Fire Department into disrepute and taking drugs not duly prescribed and necessary for health. With specific reference to the chain of custody of appellant's urine sample, the ALJ stated:
There is no dispute that the container after collection was sealed with a label with a unique number and signed by Lalama, and that the sealed container was placed in a plastic specimen bag with the same unique number and that Lalama signed the appropriate forms. There is also no dispute that the specimen container in the sealed bag arrived at the LabCorp that night with the seals intact. The irregularity in the chain of custody is that the courier that picked up the specimen did not sign the form but Cortez saw him pick it up and the person who received the specimen at the lab signed the form. I FIND that the evidence presented demonstrates by a preponderance of the evidence that the sealed specimen that arrived at LabCorp is the same specimen given by Lalama.
The ALJ further concluded that because appellant already had been placed on probation for substance abuse and participated in a rehabilitation program, the appropriate sanction for continued substance ...