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Passaic County PBA Local 197 v. Office of the Passaic County Prosecutor

April 24, 2006

PASSAIC COUNTY PBA LOCAL 197, PASSAIC COUNTY PBA LOCAL 286, AND WAYNE PBA LOCAL 136, PLAINTIFFS-APPELLANTS,
v.
OFFICE OF THE PASSAIC COUNTY PROSECUTOR AND JAMES F. AVIGLIANO, PROSECUTOR, IN HIS OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3663-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 21, 2005

Before Judges Wecker, Fuentes and Graves.

Plaintiffs, three collective bargaining units representing certain law enforcement officers in Passaic County,*fn1 brought this action alleging that the Passaic County Prosecutor violated the Attorney General's Law Enforcement Drug Testing Policy by ordering four county sheriff's officers and three Wayne police officers to provide urine samples for drug testing based upon reasonable suspicion of illegal drug use.*fn2 The Law Division judge granted the Prosecutor's motion for summary judgment and dismissed plaintiffs' complaint. Plaintiffs appeal that judgment. We now affirm, although on somewhat narrower grounds.

The Law Division judge initially noted that the individual, named officers all had withdrawn from the lawsuit, and thus no factual issue was before the court respecting reasonable suspicion to order each drug test. The sole question presented, as framed by the judge and agreed to by the parties, was:

[W]hether the County Prosecutor had the authority, absent the assent or request of the chief executive officer of the law enforcement agency by whom an officer within the county is employed, to order reasonable suspicion drug testing of an individual officer not employed by the prosecutor's office?

[Emphasis added.]

The judge answered that question in the affirmative and placed the reasons for his decision on the record following oral argument on January 11, 2005:

It is apparent to this Court at least that a county prosecutor has the authority, absent the approval of the chief executive officer of the employing law enforcement agency, to order law enforcement officers, employed by a law enforcement agency within the county, to provide urine specimens for drug testing if there's reasonable suspicion of drug use pursuant to the Attorney General's Policy.

The judge concluded that the Prosecutor possessed such authority under the statute delegating to each county prosecutor the Attorney General's authority, citing N.J.S.A. 2A:158-5.*fn3 The final order incorporated those reasons. We affirm the order granting summary judgment and dismissing plaintiffs' complaint. We do so, however, based on the actual consent of the chief executive officers involved here.

The Attorney General's Law Enforcement Drug Testing Policy*fn4 provides, at Paragraph III. C.:

1. Each municipal law enforcement agency shall include in its rules and regulations as defined in N.J.S.A. 40A:14-118,[*fn5 ] and every county and state law enforcement agency shall include in appropriate standard operating procedures, a provision that individual law enforcement officers will be ordered to submit to a drug test when ...


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