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In re Phillips

August 5, 2008


On appeal from a Final Administrative Action of the Merit System Board, Docket No. 2006-2585.

Per curiam.


Submitted March 12, 2008

Before Judges Wefing, Parker and Lyons.

Petitioner Peter Phillips appeals from a Final Administrative Action of the Merit System Board (Board) issued on February 28, 2007. We affirm.

Petitioner was a Union City Police Officer who was removed from his position after a finding that he tested positive for cocaine in violation of the Union City Police Department (UCPD) drug testing policy. Petitioner was randomly tested on March 18, 2003. On April 7, 2003, the UCPD filed a formal disciplinary charge against petitioner. On February 11, 2004, a departmental hearing was held and on April 7, 2004, a Final Notice of Disciplinary Action finding petitioner guilty was filed. His employment as a police officer was terminated immediately.

On April 14, 2004, petitioner filed an appeal with the Board. The matter was scheduled for a hearing in the Office of Administrative Law (OAL) on September 5, 2006.

At the hearing, Police Captain Mark Pecora, of the Internal Affairs Unit, testified that the random testing is done with computer-generated lists taken from social security numbers of the officers. Ten officers, or five percent of the UCPD, were tested in accordance with the Attorney General Guidelines. On March 18, 2003, the date of petitioner's test, the officers were not advised of the testing until they appeared at Internal Affairs. Each officer was offered an opportunity to submit a second sample. Pecora testified to the details of the testing and the chain of custody of the samples. Lieutenant Detective Louis Gowers, of the UCPD Internal Affairs Unit, also testified as to the test procedures, specifically with respect to petitioner. Dr. George Jackson, the Director and Chief Toxicologist of the State Toxicology Lab, testified as to how the tests were conducted and how petitioner's sample was identified.

Petitioner did not testify.

On January 3, 2007, the Administrative Law Judge (ALJ) rendered an Initial Decision in which she summarized the testimony and evidence and found that the test was done in accordance with the Attorney General's Guidelines and strict criteria for an accurate and verifiable result were maintained. The ALJ specifically found that petitioner had a concentration of cocaine metabolite more than seven times the cutoff level in the specimen provided. The ALJ then examined the disciplinary process and determined that petitioner had the appropriate notices and hearing opportunities and recommended that petitioner's removal be affirmed and his appeal dismissed. In its Final Administrative Action rendered on February 28, 2007, the Board adopted the ALJ's recommendation and concluded that "the action of the appointing authority in removing the appellant was justified."

In this appeal, petitioner argues that (1) the Board's conclusion that the forty-five day rule was complied with was not based upon credible evidence in the record and not consistent with case law; and (2) the finding that the integrity of the specimen was properly obtained and preserved was not supported by the credible evidence in the record.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

With respect to the timeliness issue, the ALJ noted that the test was taken on March 18, 2003, the preliminary notice of disciplinary action was served on April 7, 2003, and the departmental hearing was scheduled for April 29, 2003. On April 8, however, petitioner requested an adjournment of the hearing date. On April 11, petitioner requested discovery and the departmental disciplinary hearing was held on February 11, 2004, resulting in the final notice of disciplinary action. Thereafter, petitioner appealed to the Board and the matter was referred to the OAL. The OAL hearing occurred on September 5, 2006.

In her discussion of the timeliness issue, the ALJ noted that petitioner "asked for a new hearing date one day after being served with the Preliminary Notice. Thereafter, his counsel requested discovery and offered no suggestion that he was ready to proceed on the originally scheduled date, nor did he suggest another hearing date." The ALJ concluded, ...

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