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In re Hudson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2008

IN THE MATTER OF LAQUAN HUDSON

On appeal from a final decision of the New Jersey Transit Corporation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges Parker and Gilroy.

Appellant Laquan Hudson appeals from the March 12, 2007 decision of respondent New Jersey Transit Corporation (NJT) that removed him from employment as a member of the NJT Police Department (Department). Appellant contends that he was denied administrative due process because he was dismissed from employment without a hearing, contrary to N.J.S.A. 27:25-15.1c and the provisions of his Collective Bargaining Agreement (CBA). We agree.

Appellant was first employed by the Department on July 30, 2001, and was promoted to Detective on December 22, 2004. On March 9, 2007, in furtherance of his application for employment with the Essex County Police Department, appellant submitted to a drug screening urinalysis. The test was conducted by the New Jersey State Toxicology Laboratory, Newark, and the results "confirmed positive for Amphetamines." On the same day, the Essex County Prosecutor's Office forwarded a letter to Joseph Bober, Chief of the Department, advising of appellant's urinalysis test results, pursuant to the Attorney General's guidelines (the Guidelines) contained in the Attorney General's Law Enforcement Drug Testing Policy, issued October 1986, and last revised June 2001.

Chief Bober served appellant on March 9, 2007, with a letter suspending him, without pay, effective 6:00 p.m. that day "by virtue of [appellant's] violation of the New Jersey Transit Drug and Alcohol Policy and in accordance with the Attorney General's Law Enforcement Drug Testing Policy and any further applicable law, policy or regulations." On March 12, 2007, Chief Bober, interpreting the Guidelines as requiring immediate dismissal from employment, served appellant with a second letter, terminating him from employment, effective 2:00 p.m. that day. It is undisputed that appellant was neither served with a complaint or any other form of notice of preliminary disciplinary action, nor provided a hearing to contest the allegation that he had used amphetamines. On March 16, 2007, appellant filed this appeal.*fn1

On appeal, appellant argues:

POINT I.

THE EMPLOYER ILLEGALLY TERMINATED THE EMPLOYMENT OF THE APPELLANT BY NOT FILING A COMPLAINT AND BY NOT HOLDING A DISCIPLINARY HEARING.

A. N.J.S.A. 27:25-15.1c REQUIRES THE FILING OF A COMPLAINT OR THE DISCIPLINE MUST BE DISMISSED.

B. THE APPELLANT WAS ENTITLED TO DUE PROCESS BEFORE THE EMPLOYER COULD TERMINATE HIS EMPLOYMENT.

The role of an appellate court in reviewing a final decision reached by an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of express or implicit legislative policy. Id. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Juvenile Det. Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003). However, an agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Nor is an appellate court bound by an agency's interpretation of a statute or resolution of a question of law. Taylor, supra, 158 N.J. at 658.

Appellant argues that NJT improperly removed him from employment by not filing a complaint charging him with a violation of the Guidelines, and by not providing him with a hearing to contest the charge pursuant to N.J.S.A. 27:25-15.1c. Appellant contends that NJT's action, discharging him from employment in violation of that statute, requires dismissal of the disciplinary action and immediate reinstatement of his employment with back pay. Alternatively, appellant argues that he had both a property and liberty interest in his position with the Department. Appellant contends that after six years of employment he held tenure status in the position and fell under the protective umbrella of his collective bargaining unit's CBA with NJT. Appellant asserts that NJT denied him due process by terminating him without "just cause" and without affording him a fair hearing to contest the charges.

NJT counters that appellant was not terminated pursuant to the terms of the CBA, nor for disciplinary reasons, but rather was terminated "by virtue of NJT's statutory requirement to comply with the Attorney General's Drug Policy." NJT contends that "[o]nce it received notice from the Essex [C]county Prosecutor's [O]ffice, NJT had no alternative but to terminate Mr. Hudson's employment." NJT asserts that "[t]he Attorney General's Drug Policy provides for immediate termination without provision for a hearing of any kind." We disagree.

Appellant's dismissal from employment constituted a disciplinary action. That appellant may have used amphetamines in violation of the Guidelines does not authorize NJT to remove him from his position as a member of the Department without first affording him a fair hearing to contest the allegation.

As a member of the Department, appellant's right of employment was protected from arbitrary or unreasonable disciplinary actions by his employer. N.J.S.A. 27:25-15.1c. That statute provides in pertinent part:

A person shall not be removed from employment or a position as a police officer of the New Jersey Transit Police Department pursuant to section 2 of P.L. 1989, c. 291 (C.27:25-15.1), or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the New Jersey Transit Police Department, unless a complaint charging a violation of those rules and regulations is filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. A failure to comply with this section shall require a dismissal of the complaint . . . .

In addition, as a member of PBA Local 304, appellant's hours of service, work conditions, and rates of pay, including disciplinary actions, were subject to the CBA between Local 304 and NJT. The CBA provides in pertinent part:

ARTICLE XX (GRIEVANCE PROCEDURE).

(A) Police Officers who have been in service more than one (1) year or not otherwise on probation shall not be disciplined or dismissed from service without just cause.

Article XLVIII (DISCIPLINE).

Except as otherwise provided by law, a Transit Police Officer shall not be removed from employment or position for political reasons for any cause other than incapacity, misconduct, or disobedience of rules and regulations established by the New Jersey Transit Police Department nor shall such Officer be suspended, removed, or fired, from employment or position therein, except for just cause as hereinbefore provided.

A Transit Police Officer shall not be removed from employment or position, or fired for a violation of the internal rules and regulations established for the conduct of the New Jersey Transit Police Department unless a complaint charging a violation of those rules and regulations is filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.

A failure to comply with the provisions as to the service of this complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.

NJT is a public corporation established by the Legislature in the New Jersey Department of Transportation. N.J.S.A. 27:25-4a. The Police Department was established within NJT and is vested with "police and security responsibilities over all locations and services owned, operated, or managed by [NJT] and its subsidiaries." N.J.S.A. 27:25-15.1. Under that statute, NJT police officers exercise general police powers and duties throughout the State and are required to "comply with all policies established by the Attorney General, including rules and regulations, directives, advisory opinions, and other guidelines." Ibid. (emphasis added). Thus, the Department is required to enforce the Attorney General's Law Enforcement Drug Testing Policy as it would enforce its internal rules and regulations. Accordingly, we are satisfied that the Department must comply with the due process requirements of providing the member of the Department with notice and a hearing when the officer is charged with a violation of the Attorney General's Drug Testing Policy, just as it would when he or she is charged with a violation of the Department's internal rules and regulations. N.J.S.A. 27:25-15.1c.

Moreover, pursuant to Articles XX and XLVIII of the CBA, appellant, having achieved tenure status, could not be dismissed from employment without good cause following a hearing. Under the CBA, appellant "possessed a protectable interest in his continued employment with the [Department]," In re Carberry, 114 N.J. 574, 583 (1989), requiring the Department "to proceed with due process before terminating [his] employment." Id. at 584. (emphasis added). Thus, appellant was entitled to a fair pre- termination hearing "before a neutral and unbiased decisionmaker." Ibid.

Because appellant did not receive notice of the pending disciplinary action and a fair hearing to contest the allegation prior to dismissal from employment, we reverse and remand the matter to NJT. We direct that NJT proceed with a formal disciplinary action, serving notice to appellant and affording him a hearing to contest the allegation. Pursuant to the June 27, 2008 order of the Chancery Division, the matter should be forwarded to the Office of Administrative Law (OAL) to conduct an administrative hearing as a contested matter. See N.J.S.A. 52:14F-8 (providing that an agency head may direct that a contested matter be assigned to an Administrative Law Judge (ALJ)).

We do not address the timeliness of the notice of disciplinary proceeding or of the hearing, leaving that issue to be addressed in the first instance by the ALJ.*fn2 In reversing the matter, we acknowledge that NJT argues that appellant was provided with an informal hearing with Chief Bober on March 9, 2007, and that appellant obtained an independent analysis of the split urine sample taken on March 9, 2007, after he was dismissed from employment. However, those matters are not contained in the truncated record before us, and should be addressed at the remand hearing.

Although we have already determined that Chief Bober's action dismissing appellant from employment without a pre-termination hearing violated appellant's administrative due process rights, we will address the arguments raised by NJT. NJT contends that it did not deprive appellant of administrative due process when Chief Bober dismissed him from employment, contending that appellant was not removed from employment for disciplinary reasons, but only to comply with the Guidelines, which provides for immediate termination without a provision requiring a hearing of any kind. We are satisfied that NJT misconstrues the Guidelines when it interprets them as requiring "immediate" removal from employment without providing appellant a fair hearing.

It is undisputed that the Department and appellant are subject to the Guidelines. N.J.S.A. 27:25-15.1a; Guideline IA3. Nor is it disputed that amphetamines and methamephetamines are among the controlled dangerous substances (CDS) for which a sworn law enforcement officer may be subject to dismissal from employment if the officer tests positive via an urinalysis test conducted in accordance with the Guidelines. Guideline VIA4. As to the consequences of a positive test result, the Guidelines provide in pertinent part:

VIII. Consequences of a positive test result.

A. When an applicant tests positive for illegal drug use:

1. The applicant shall be immediately removed from consideration for employment by the agency.

2. The applicant shall be reported to the Central Drug Registry maintained by the Division of State Police by the law enforcement agency to which the individual applied; and

3. The applicant shall be precluded from consideration for future law enforcement employment by any law enforcement agency in New Jersey for a period of two years.

4. Where the applicant is currently employed by another agency as a sworn law enforcement officer, the officer's current employer shall be notified of the positive test result. Under these circumstances, the officer's current employer is required to dismiss the officer from employment and also report his or her name to the Central Drug Registry maintained by the Division of State Police.

B. . . . .

C. When a sworn law enforcement officer tests positive for illegal drug use:

1. The officer shall be immediately suspended from all duties;

2. The officer shall be terminated from employment as a law enforcement officer, upon final disciplinary action;

3. The officer shall be reported by his or her employer to Central Drug Registry maintained by the Division of State Police; and

4. The officer shall be permanently barred from future law enforcement employment in New Jersey.

[Emphasis added].

Contrary to NJT's interpretation, Guideline VIIIA4 does not direct that it immediately dismiss appellant without a fair hearing. It only requires NJT "to dismiss the officer from employment." The Guideline is silent as to when dismissal is to occur, before or after a hearing. If the Attorney General meant that a law enforcement agency was required under Guideline VIIIA4 to immediately dismiss a police officer who fails a drug test that he or she took in furtherance of his or her application for employment with another agency, the Attorney General knew how to express that intention. See Guideline VIIIC1 (directing an officer to be "immediately" suspended from all duties on failing an internal agency drug test). We construe Guideline VIIIA4 as requiring dismissal only on NJT affording appellant due process, that is, notice and a pre-termination hearing. Carberry, supra, 114 N.J. at 583.

We discern no reason to treat appellant differently from an officer who tests positive for illegal drugs during a random drug sample conducted by his or her own law enforcement agency under Sections VIIIC1 and 2. When necessary to protect the public interest, NJT has the authority to immediately suspend a police officer from his or her duties, but not to dismiss the officer from employment, unless and until it institutes a disciplinary proceeding. We deem the fact that Guideline VIIIA4 does not provide first for suspension, and then dismissal, following a disciplinary proceeding as it does under Guidelines VIIIC1 and 2, to be nothing more than a drafting error, and not an intentional expression to treat the officer differently under the two sections.

Reversed and remanded to the New Jersey Transit Corporation for further proceedings consistent with this opinion. We do not retain jurisdiction.


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