February 10, 2010
IN THE MATTER OF TOWNSHIP OF PISCATAWAY POLICE DEPARTMENT
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MA-91-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 20, 2009
Before Judges Skillman and Fuentes.
Richard Wright was formerly employed by the Township of Piscataway as a police officer. He was terminated from that position after he was found guilty of taking illegal substances and lying to investigators about his drug use. Wright now appeals from the judgment of the Law Division, entered after a de novo proceeding pursuant to N.J.S.A. 40A:14-150, sustaining his removal from office. We affirm.
We gather the following facts from the evidence presented during a departmental disciplinary hearing conducted before a hearing officer to adjudicate the charges against Wright. The Law Division relied upon these facts when it conducted its de novo review pursuant to N.J.S.A. 40A:14-150.
The Piscataway Police Department hired Wright as a police officer on May 16, 2005. On June 11, 2007, Wright's estranged wife Cheryl Wright met with Captain Rick Ivone and the chief of police to discuss her suspicions that Wright was abusing steroids illegally. Mrs. Wright brought with her to the meeting prescription bottles, a handbook on steroids, syringes, and a letter envelope containing handwritten notes on steroids, presumably written by her husband.*fn1 She told Ivone that Wright had began working out at a local gym in the last year and "became big at one point"; he also had acne on his back.
Mrs. Wright produced news articles from the internet stating that the doctor who prescribed her husband these medications, Dr. Claire Godfrey, had recently been arrested and charged with steroid distribution and writing false prescriptions. It is undisputed that Wright obtained a prescription*fn2 over the internet written by Dr. Godfrey for Nandrolone, an anabolic steroid. It is also undisputed that Wright never had a face-to-face meeting or consultation with Dr. Godfrey in New Jersey or anywhere else. All of his interactions with this Florida physician were conducted over the internet.
Armed with this information, Ivone formally began an internal affairs investigation to determine whether there were grounds to charge Wright with violating department regulation Article 7E, which states: "Permanently appointed officers who produce a positive test result indicating unlawful drug use or who refuse to submit a urine sample will be dismissed from employment." On that same day, June 11, 2007, Ivone notified Wright of the investigation. He then asked Wright to produce a urine sample and complete a medical form to disclose any medications he was taking that might appear in the test results.
Wright listed two prescription medications for hypertension, Toprol and Triamterene, and Excedrine, an over-the-counter pain medicine. The results of Wright's urine sample taken on June 11, 2007, were positive for the steroid Nandrolone, also referred to in the record as Anadrol. Ivone confronted Wright the following day with the test results and showed him the drug vials Mrs. Wright had given to him earlier; Wright's PBA representative was also present at this meeting.
Ivone gave the following description of what occurred next:
[a]t that point [Wright] stared at the vials. He wanted to know if we were charging him criminally. He was very quiet, didn't say anything. He indicated that possibly these drugs were for his dad, then backed off of that, you know, kept asking about the criminal charges, then he said - then he came out, you know, some of them might be for sexual dysfunction. He kept saying that he took any medication in good faith. He said that, you know, he had high blood pressure and he had sexual dysfunction, so that he was taking some of those other medications and that these medications could be there.
But we repeatedly asked if these were his and he would not answer and then right before the end of the interview, he kind of nodded that, yeah, they were his.
Ivone's investigation also revealed that Wright had not purchased the Nandrolone through his employer-provided prescription plan. By contrast, when Wright sought treatment for erectile dysfunction he was treated by two New Jersey physicians and the cost of the treatment and the medication prescribed were paid through his employer-provided medical insurance plan.
According to Ivone, when he advised Wright that he had tested positive for steroids, Wright implicitly denied the accuracy of the test results by stating that he did not know how he could have tested positive. Ivone described Wright's attitude at this stage of the process as uncooperative; his answers to direct questions about his use of steroids were unresponsive and vague. Wright eventually admitted to using steroids, but claimed that the drugs were prescribed for hypertension and erectile dysfunction. Given the evidence amassed at this point, Ivone suspended Wright without pay for violating Article 7E of the police department disciplinary regulations.
After suspending defendant, Ivone contacted the Drug Enforcement Administration (DEA) and attempted to contact Dr. Godfrey directly. Ivone also conducted his own independent investigation through a law enforcement database and confirmed that Dr. Godfrey had been arrested, indicted, and convicted, by way of a guilty plea, for what Ivone characterized as issuing "false" prescriptions and "illegal" dispensation of steroids.
The record before us includes the transcript of Godfrey's plea hearing before the Albany County Court of the State of New York, in connection with the case of People v. Godfrey, Indictment No. 25-1351. At this hearing, Claire Godfrey pled guilty to one count of Criminal Diversion of Prescription Medications and Prescriptions in the Second Degree, in violation of Section 178.20 of the Penal Law of the State of New York.
Under the plea agreement, Godfrey agreed to testify as a witness for the prosecution against the internet clinics and pharmacies she had worked with and irrevocably give up her license to practice medicine in Florida and any other State. In exchange for her guilty plea, the District Attorney's Office agreed to recommend that Godfrey be sentenced to a term of probation for a period of time not to exceed five years.
As part of her allocution, Godfrey testified that between November 15, 2006, and February 1, 2007, she committed a "criminal diversion act" by "sign[ing] or agree[ing] to sign prescriptions for drugs totaling in excess of $3,000 with knowledge or reasonable ground to know that there was no medical need for the medicine and/or the prescriptions were bogus."
According to Godfrey, she would receive an individual's "blood work" from two "rejuvenation" centers and/or pharmacies operating through the internet from Florida and Texas. Her involvement was limited to writing prescriptions for a certain class of steroids or controlled substances. Although she may have seen some "patients" who were Florida residents, she never had any direct personal contact, in person or via telephone, with any persons residing in the State of New York, specifically Albany County. When asked by the trial judge whether she had any reason to believe that the controlled substances she prescribed at the request of the online clinics were "medically necessary," Godfrey responded: "Some were medically necessary; some were not." Against this backdrop, we note that the Township did not present any evidence showing that Wright was aware of Godfrey's activities.*fn3
At the conclusion of the disciplinary hearing, the presiding officer indicated that she wanted to hear testimony from a medical expert as to whether Wright's admitted procurement and use of steroids in the manner described here constituted an inappropriate use of the drug. An additional hearing was thus scheduled for this purpose; Wright's status pending this hearing was changed to suspended with pay.
Four days after the first hearing date, Wright was served with a second charge of "with[holding] information as well as being dishonest during an Internal Affairs Investigation into steroid use," in violation of Department Rules and Regulations, Article 6-P5. This particular regulation states: "Truthfulness - Members and employees are required to be truthful at all times whether under oath or not."
On November 7, 2007, the hearing reconvened for the testimony of Dr. David Lee Black, an expert witness in the field of clinical and forensic toxicology. Dr. Black testified that Nandrolone has "very few legitimate medical purposes." Ordinarily, this drug has been used to treat patients suffering from "wasting diseases" such as cancer and AIDS. Dr. Black specifically ruled out using the drug to treat sexual dysfunction because of its counterproductive propensity of actually inhibiting normal sexual performance in men.
When asked to opine on the so-called black market use of Nandrolone, Dr. Black indicated that Nandrolone is "the most frequently identified and detected drug [for] non[-] medical use[s] of an anabolic steroid" and has been used "in a number of applications in sport, and especially in body building." According to Dr. Black, the internet has "become a major distribution outlet for the drugs." In his opinion, obtaining the drugs over the internet has exacerbated improper use of anabolic steroids. On cross-examination Dr. Black conceded that the use of internet pharmacies and receipt of prescriptions over the internet are not "per se illegal." The hearing thereafter concluded. Wright did not call any witnesses on his behalf, nor did he testify in his own defense.
Against this record, the hearing officer found sufficient grounds to terminate Wright as a police officer for "illegal possession and use of a Class III drug, Nandrolone, and for lying." In her memorandum of findings and recommendations, the hearing officer first addressed the charge of misuse of drugs under Article 7E which dictates that "[p]ermanently appointed officers who produce a positive test result indicating unlawful drug use or who refuse to submit a urine sample will be dismissed from employment." At the outset, she rejected Wright's claim that he had obtained the steroid through a seemingly proper prescription, signed by a physician, and dispensed by a pharmacy. The officer noted that "[a] prescription obtained by fraud or knowingly for other than a legitimate medical purpose is not valid."
In support of her conclusion, the hearing officer emphasized that Wright had not come forward with a medically legitimate reason for using a legally controlled drug. By contrast, the Township produced reliable evidence showing that Wright's intent to use the drug was for an improper purpose because: (1) the use of the drug was not medically justifiable; and (2) the drug was procured in a clandestine manner.
As to the charge of lying, the hearing officer noted that Wright "deliberately omit[ted] the information required to be disclosed in the test form. This act of omission is consistent with the pattern of dishonesty Mr. Wright exhibited prior to and after being charged with possession."
Wright filed for a de novo review before the Law Division under N.J.S.A. 40A:14-150, which provides:
Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court; provided, however, that in the case of an officer who is appealing removal from his office, employment or position for a complaint or charges, other than a complaint or charges relating to a criminal offense, the officer may, in lieu of serving a written notice seeking a review of that removal by the court, submit his appeal to arbitration pursuant to section 10 of P.L.2009, c.16 [N.J.S.A. 40A:14-209]. Such review shall be obtained by serving a written notice of an application therefor upon the officer or board whose action is to be reviewed within 10 days after written notice to the member or officer of the conviction. The officer or board shall transmit to the court a copy of the record of such conviction, and of the charge or charges for which the applicant was tried. The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper.
Either party may supplement the record with additional testimony subject to the rules of evidence.
The Law Division considered this application on the record developed before the hearing officer. After considering the argument of counsel, the court again found sufficient grounds to terminate Wright from his position as a police officer. In so doing, the court specifically rejected Wright's claim that the manner in which the Township charged him with "lying" violated his constitutional right to procedural due process.
All of the evidence to support such a claim was known to the township at the time of the filing of the service of the first complaint [and] was testified to at the initial hearing. The testimony was not objected to, and the witness was subject to cross-examination by appellant's counsel.
Indeed, appellant's counsel even questioned the witness about the ability to have referred such [an] additional charge against Appellant Wright and the absence thereof at the time of his testimony at the initial hearing. Thereafter the new charge was served, and the hearing continued on November 7th. No ruling was made, or request for a dismissal of the new charge, prior to the close of testimony on November 7th.
Due process insofar as notice and right to be heard was provided, is satisfied by the record below. The evidence supporting the new charge was of no surprise in that it was in the discovery provided to counsel, was part and parcel of the evidence presentation supporting the initial charge during the first day of the hearing.
The case entitled [Sabia v. City of Elizabeth, 132 N.J. Super. 6 (App. Div. 1974),] is illustrative or instructive. The Appellate Division there stated, "a departmental disciplinary [proceeding] is in no way a criminal or quasi-criminal proceeding and, consequently, respondents in such a proceeding do not come within the shield of the various constitutional guarantees accorded [persons] accused of a crime. Departmental disciplinary proceedings are civil in nature; requirements of due process are satisfied so long as proceedings are conducted with fundamental fairness, including adequate procedural safeguards." [Id. at 14.]
Furthermore, the failure to insist upon a ruling with regard to a stated charge and the opportunity to present evidence in defense thereof in the event of an adverse ruling was present at the continued hearing on November 7th, but was foreclosed by appellant's failure to insist upon action. Appellant had the opportunity to cross-examine the witnesses and even argued against the necessity for additional testimony, which the township was prepared to offer by calling the appellant's wife as a witness at the first date of the hearing.
Under such circumstances any defect is deemed waived and dismissal of the charge on procedur[al] grounds is denied.
On appeal from the judgment of the Law Division, Wright reiterates the due process argument. He further argues that the court did not conduct the required de novo review and that the judgment therefrom was against the weight of the evidence, or otherwise arbitrary and capricious. We disagree and affirm substantially for the reasons expressed by the trial court in its March 17, 2008, decision. We add only the following brief comment.
In support of his argument that the trial judge did not strictly adhere to her responsibility to conduct a de novo review of the evidence, Wright cites the following excerpt from her oral opinion:
As to the substantive merits of the charges, based upon the record of the proceedings below and giving due deference to the hearing officer's credibility assessments, which I find no basis to deviate from, I find the following [has] been established by a preponderance of the evidence. [(Emphasis added).]
This statement, cited in isolation, does appear to express a level of deference inconsistent with a de novo standard of review. However, such a conclusion here would not only be legally unwarranted but grossly unfair. When examined as a whole, the trial court's decision properly recognizes and applies the appropriate de novo standard of review. See State v. Kashi, 180 N.J. 45, 48 (2004). From its first statements framing the issues, throughout the decision, the trial court documented each factual finding with specific reference to the evidence adduced by the parties. The legal analysis that follows from these findings properly applies the relevant law and leads to an unassailable conclusion.
The following excerpt from the trial court's oral opinion illustrates this point:
From all of the credible evidence on this case I find that the township has met its burden of proof, which is admittedly lower than that required to sustain a conviction in a criminal matter. Insofar as this disciplinary proceeding is a civil matter and, therefore, the charge of illegal use of a drug, in this case a steroid, must be found to have been proven by a preponderance of the evidence, I cite the following findings of fact in this regard. Number one, nowhere on the medical form nor at any time during the process on June 11th did the appellant indicate the use [ ] by prescription or otherwise, of steroids. Secondly, at no time between the complaint notification and the taking of the urine sample on June 11th to the meeting with the appellant on July 19th was there any disclosure or request to modify the medication form or in any way disarm its accuracy by correction on appellant's part. Third, during his interview, when questioned after being told of the positive steroid use, appellant in addition to initially denying the claim stated [that] he did not know how he tested positive for steroids. Clearly at this juncture appellant knew how he tested positive because he thereafter produced a prescription for steroids, which on its face predated the blood test. And indeed, he believed his prescription was lawfully acquired and his use medically intended. There was no logical reason to withhold such information.
Additionally, the testimony of Dr. Black established that [N]androlone, the steroid prescribed in and used in this case, has very few legitimate medical purposes, which are primarily for treatment of such wasting diseases as AIDS, cancer, or anemia, none of which appellant suffered from. And it would not be appropriate medication to treat sexual dysfunction, one of the complaints [appellant] was treated for by his local urologist with Cialis and which appellant offered up as an explanation perhaps for his positive test.
Dr. Black's testimony also established that
[N]androlone is . . . the most frequent anabolic steroid used in body building and other sports.
Also, additionally, appellant did not use his ordinary resources to obtain the prescription [instead he used] a different method of payment and bypass[ed] his prescription plan.
[W]hile it is not illegal to obtain a prescription drug through the Internet, [appellant] did so in this case in an effort to obtain said prescription for an otherwise non[-]medical purpose.
Based upon these findings, it has been found that it is more likely than not that appellant's use of [N]androlone, a steroid, was for [a] non[-]medical purpose, knowledge of which can certainly be established through all of the circumstances surrounding his procurement and the circumstances surrounding his statements from the initial questioning and the filling out of the medicine form, as well as the statements made after the test results were known, notwithstanding the defense that he had an ostensibly valid prescription written by a licensed physician. It is the underlying circumstances surrounding the procurement of such a prescription coupled with the statements of appellant and the expert's testimony that forms the basis for the conclusion that the procurement was for a non[-]medical purpose, the appellant knew that. And, therefore, although valid on its face, such a use of steroids wasn't lawful. The charge is sustainable because of the burden of proof, the nature of the proceedings, and the fact that even in the absence of prosecution of a criminal offense or acquittal, there is no bar to a finding of guilt in a disciplinary hearing. [relying on Sabia v. City of Elizabeth, 132 N.J. Super. 6, 12 (App. Div. 1974).]
We discern no reason to elaborate.