January 15, 2009
IN THE MATTER OF PEDRO GONZALEZ
On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2003-655.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2008
Before Judges Rodríguez and Kestin.
Pedro Gonzalez appeals from a decision of the Merit System Board (MSB) upholding his removal by the City of Hoboken (employer) from the position of firefighter. In reaching its decision, the MSB accepted and adopted the findings of fact and conclusions contained in an administrative law judge's (ALJ) initial decision.
The charges filed by the employer, under N.J.A.C. 4A:2-2.3(a), were: incompetency, inefficiency or failure to perform duties[;]... inability to perform duties[;]... conduct unbecoming a public employee[;]... violation of federal regulations concerning drug and alcohol use by and testing of employees who perform functions related to the operation of commercial motor vehicles[,] and State and local policies issued thereunder[;] and... other sufficient cause.
The single specification was: "On February 15, 2002, you tested positive for a controlled dangerous substance."
All the charges were sustained in a departmental hearing, and a final notice of disciplinary action issued, providing for Gonzalez's removal from his firefighter position effective June 17, 2002. According to the ALJ, Gonzalez had rejected the department chief's offer of a "'last chance agreement' to provide [Gonzalez] an opportunity to receive treatment, with the condition that [Gonzalez] would be dismissed if he tested positive for drugs a second time...."
The facts found by the ALJ and adopted by the MSB are undisputed. Gonzalez "commenced employment... as a firefighter in... 1985.... While serving as a firefighter, [Gonzalez] was on sick leave... for a total of 635 days. From April 26, 2001 through approximately September 5, 2001, [Gonzalez] did not report for duty and reported sick." On his return to work, the fire chief assigned Gonzalez to non-safety-sensitive "recuperative duty" and ordered a fitness for duty examination with the department's physician. In connection with the examination, the physician reviewed records regarding Gonzalez's treatment at a U.S. Veterans Administration hospital, which had been released on Gonzalez's authorization. Based on the physician's report, and in accordance with the department's standard procedures, the fire chief ordered Gonzalez to submit to a drug test.
A nurse at a hospital collected a urine sample from Gonzalez. She sealed the sample and submitted it to a testing laboratory. The initial test resulted in a positive finding for cocaine metabolites and opiates. A second test confirmed the first.
On appeal from the MSB decision, Gonzalez does not address many of the MSB's reasons for rejecting his challenges to the local decision. Gonzalez had argued to the ALJ and the MSB that the appointing authority's use of his medical records, and other procedures employed, violated federal regulatory standards; that the absence of adequate procedural guidelines violated 14th Amendment due process standards; that the procedures used in dealing with the urine sample derogated proper chain-of-custody requirements; that the tests conducted on the sample went beyond the scope of Gonzalez's authorization; and that a penalty of removal was too severe for the infraction charged. In the absence of properly framed issues on appeal, we do not address these grounds. See Pressler, Current N.J. Court Rules, comment 1 on R. 2:6-2 (2008).
Gonzalez presents his appeal from the MSB decision in a single issue posed in the form of a question: "Should [the] drug test results be disregarded because Hoboken violated [Gonzalez's] due process 14th amendment constitutional rights to have his drug test results reviewed by a medical review officer?" Two arguments are offered:
[GONZALEZ] WAS DENIED DUE PROCESS BECAUSE A MEDICAL REVIEW OFFICER NEVER REVIEWED [HIS] DRUG TEST RESULTS.
RESPONDENT'S FAILURE TO EMPLOY A [MEDICAL REVIEW OFFICER] TO REVIEW [GONZALEZ]'S DRUG TEST RESULTS RENDERED THE DRUG TEST RESULTS UNRELIABLE.
We reject Gonzalez's arguments regarding the need for the involvement of a medical review officer, because they are based on faulty or inadequate premises. The New Jersey Attorney General's Law Enforcement Drug Testing Policy, known as "the Guidelines," with its provision for the involvement of a medical review officer, does not apply to drug-testing procedures regarding firefighters; and the Guidelines have no bearing on fitness-for-duty examinations. See Attorney General's Law Enforecement Drug Testing Policy, § I.A., (rev. June 2001), http://www.state.nj.us/lps/dcj/agguide/drugtest2001.pdf. As to the argument propounding the need for a medical review officer in an instance covered by federal Department of Transportation regulations, despite the reference in the charges to a violation of federal regulations, the record discloses that the ruling here upholding Gonzalez's dismissal--grounded on the charges alleging incompetency, inefficiency, inability to perform duties, and violation of the employer's rules and regulations--was adequately based on the record developed in this matter. Whether or not a procedurally sound violation of federal regulatory standards also occurred is of no consequence, therefore.
We reject Gonzalez's second argument, as well. He has made no adequate proffer of unreliability regarding the test results and analyses in this matter because of the lack of a medical review officer's involvement.
We also reject the argument based on Capua v. City of Plainfield, 643 F. Supp. 1507, 1521 (D.N.J. 1986). That case is distinguishable on its facts. This was not an instance of department-wide drug testing; there was ample particularized cause and basis for the drug testing undertaken here.
We affirm the Merit System Board's decision.
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