On appeal from a final decision of the New Jersey Transit Corporation.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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 ...