On appeal from the Board of Review, Department of Labor, Docket No. 84,259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges A. A. Rodríguez and Collester.
Following a final determination of the Board of Review, claimant Steven Dolgoff appeals from the denial of unemployment benefits for a six-week period as a result of his discharge by Walgreen Eastern Co., Inc. (Walgreens), for misconduct connected with the work.
Dolgoff is both a doctor of podiatry and a licensed pharmacist. On September 18, 2003, he was arrested by the Manalapan police for unlawful possession of Hydracodone, the generic name for the prescription pain medication Vicodin. After his arrest, he gave a voluntary statement to the police acknowledging receipt of 2500 Vicodin pills ordered by him from a medical supply house using his expired physician's license. He told the police he had been addicted to pain medication for twenty years and was taking about seventy-five pills a day. To satisfy the addiction, he ordered 500 pills each month for his own use.
The Board of Pharmacy was notified of Dolgoff's arrest, and he met with officials a month later in October 2003. The pharmacy board directed him to continue medical treatment for his addiction and to undergo urine testing for the next few months.
At the time of his arrest Dolgoff was working as a pharmacist for Eckerd Drugs. He applied for a pharmacist job with Walgreens after his arrest. On the written job application the question was asked whether "you have ever been convicted of a felony." Dolgoff spoke with his criminal attorney and was told that an arrest was not equivalent to a conviction. He then answered the question in the negative. Dolgoff was hired by Walgreens on or about October 11, 2003.
On August 23, 2004, Dolgoff entered a guilty plea to an accusation for violation of N.J.S.A. 2C:35-15(a)(3), possession of a controlled dangerous substance, in exchange for a plea recommendation by the prosecutor for enrollment in the pre-trial intervention program (PTI). At the plea hearing, Dolgoff told the judge that he understood he was pleading guilty to a third-degree narcotics offense. When asked for a factual basis, Dolgoff admitted that on September 18, 2003, he took possession of 2,500 Vicodin pills unlawfully and knew at the time that it was illegal. The judge agreed with the prosecutor's recommendation for PTI and also imposed a Drug Enforcement and Demand Reduction (DEDR) penalty of $1,000, which is required of every person who commits a third-degree narcotics offense. The plea agreement further provided that while the court would not suspend Dolgoff's pharmacy license, the prosecutor was legally obliged to notify the Board of Pharmacy of Dolgoff's guilty plea. The Board of Pharmacy did not revoke or suspend Dolgoff's license, and although it reported it was reviewing the status of his license to determine whether it would take any disciplinary action, nothing in this record indicates any further action by the Board of Pharmacy.
Dolgoff entered the PTI program on September 4, 2004, and continued treatment with a physician for his addiction as required. He completed the PTI program on September 4, 2005, and on that date the accusation to which he pleaded guilty was dismissed. As a result, he does not have a criminal record.
Dolgoff did not inform Walgreens of his arrest, his guilty plea, or his admission to and completion of the PTI program. He claimed the information was a "private health matter." But in June 2005, Walgreens received an anonymous report that Dolgoff had been arrested for obtaining and possessing Vicodin. Scott McMullen, Walgreens' Loss Prevention Supervisor, investigated and found that Dolgoff's pharmacist license was under review by the State Board of Pharmacy. When confronted with the information, Dolgoff acknowledged his arrest but maintained that because he was not "convicted of anything," he was not legally obliged to tell Walgreens about it. He also admitted that his license was under scrutiny by the State Board of Pharmacy and that he had to continue medical treatment including submission of urine samples. He further acknowledged the extent of his addiction and that he had used his expired license as a podiatrist to obtain the drugs.
After being confronted by McMullen and the Walgreens' store manager, claimant was terminated on June 21, 2005. A subsequent audit of the Walgreens store did not disclose any wrongdoing by Dolgoff during his employment. Dolgoff has since obtained another job as a pharmacist.
Dolgoff filed his claim for unemployment benefits on July 10, 2005. On August 1, 2005, a deputy director found him eligible for benefits because there was insufficient evidence that he had been discharged for violating a company rule. Walgreens appealed. A hearing was conducted on November 1, 2005, before the Appeal Tribunal at which time McMullen and another representative appeared on behalf of Walgreens. The Appeal Tribunal found that Dolgoff had been discharged for conduct connected with his work, reversed the deputy director's decision, and held that Dolgoff was disqualified for benefits under N.J.S.A. 43:21-5(b) for the six-week period from June 19 to July 30, 2005.
On November 5, 2005, Dolgoff appealed to the Board of Review, which remanded the case to the Appeal Tribunal. Another hearing took place on January 3, 2006, at which Dolgoff appeared with counsel and testified. Two days later the Appeal Tribunal again held that Dolgoff was disqualified for benefits under N.J.S.A. 43:21-5(b). Dolgoff again appealed to the Board of Review. On April 6, 2006, the Board of Review again remanded the ...