On appeal from a Final Administrative Decision of the Merit System Board, DOP Docket No. 2008-833.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Appellant, Michael Loveland, appeals from the final administrative decision of the Merit System Board (MSB) dismissing his appeal of his termination from employment with respondent, Burlington County (County). We affirm.
In August 2006, appellant commenced employment with the County as a provisional correction officer. As a condition precedent to achieving permanent status as a correction officer, appellant was required to successfully complete the Correction Officer Training Academy (COTA). Appellant entered COTA but was dismissed on June 28, 2007, based upon a positive drug test result. He did not appeal his dismissal from COTA.
Also on June 28, 2007, appellant was served with a Preliminary Notice of Disciplinary Action recommending an interim suspension. The charges listed in the notice were "CONDUCT UNBECOMING A PUBLIC EMPLOYEE[,]" N.J.A.C. 4A:2-2.3(a)(6), and "OTHER SUFFICIENT CAUSE-VIOL. BCDF/CWRC POLICY AND PROCEDURE MANUAL DATED 2/1/04, SECTION 1145 (Staff Random Drug Screening) SECTION 1137 (Training)."*fn1 The specification alleged: "ON 5/31/07, WHILE PARTICIPATING IN THE CORRECTION OFFICER ACADEMY, YOU SUBMITTED A ROUTINE URINE SAMPLE. ON 6/11/07, NEW JERSEY STATE TOXICOLOGY LABORATORY RESULTS CONFIRMED A POSITIVE RESULT FOR MARIJUANA METABOLITE. THIS IS CONDUCT UNBECOMING A PUBLIC EMPLOYEE."
A Loudermill*fn2 hearing was conducted, after which the County suspended appellant without pay effective July 2, 2007. A departmental hearing was subsequently conducted. While not disputing the presence of marijuana in his system, appellant's counsel argued that the positive test result was not a "true positive" because the confirmatory test result was less than the "cutoff" of twenty nanograms per milliliter. Appellant explained in his incident report that the positive test result may have resulted from the fact that he is "around it[,]" meaning marijuana.
The hearing officer found that appellant tested positive for marijuana, could not serve as a law enforcement officer if he tested positive for the use of any illicit substance, "[n]or can he serve if he is not properly trained because he was dismissed from COTA." A Final Notice of Disciplinary Action (FNDA) sustaining the charges of "CONDUCT UNBECOMING A PUBLIC EMPLOYEE" and for "OTHER SUFFICIENT CAUSE-VIOL. BCDF/CWRC POLICY & PROCEDURE MANUAL DATED 2/1/04, SECTION 1145" was issued. Appellant was removed from his position as a corrections officer on August 13, 2007.
Appellant appealed to the MSB and the matter was transferred of the Office of Administrative Law as a contested case. N.J.S.A. 52:14B-2(b). Respondent moved for summary disposition, arguing that the facts material to the charge were not in dispute. At issue before the administrative law judge (ALJ) in the summary disposition motion was the absence, in the FNDA, of any reference to Section 1137 relating to appellant's dismissal from COTA, which the County nonetheless asserted as a basis for terminating his employment as a correction officer. It is undisputed that Section 1137 was not referenced in the FNDA. The ALJ concluded, however, that its absence in the FNDA was "inadvertent." The ALJ reached this conclusion by considering the hearing officer's report, which the ALJ noted was not "normally evidential in a de novo appeal to the MSB[,]" but reasoned that it was relevant "in attempting to determine the charges tried and the charges sustained or dismissed therein." In that regard, the ALJ found:
[T]he [hearing officer] lists as exhibits the pages of the Policy and Procedures Manual 80-82, which is Section 1137, and she writes in her "Decision," that Management did argue that since Loveland had been dismissed from COTA "he cannot be properly trained and therefore cannot serve." She then wrote that she found that "Loveland cannot serve as a law enforcement officer if he [has] tested positive for the use of any illicit substance. Nor can he serve if he is not properly trained because he was dismissed from COTA. . . ." So it is quite clear that this issue was actually tried in the departmental hearing. It would seem obvious then that the failure of the Final Notice of Disciplinary Action to include any reference to the dismissal of charges relating to Section 1137 is because these charges were not dismissed, and that the failure to refer to Section 1137 in the space provided for charges sustained is an inadvertent error following on the error of the [hearing officer] to list 1137 with 1145 in the "Charges" section of her [r]eport, this despite her clearly receiving evidence and argument on the point in the hearing and her deciding that Loveland could not serve due to his dismissal from COTA.
. . . Based upon the documents, and the facts that are undisputed, it is apparent that the Section 1137 charge was always a part of the charges against Loveland and this charge was never dismissed. The Final Notice, which is the document of record as to the charges and is here ambiguous due to its incomplete nature, must be interpreted in light of the full record. And as Loveland was certainly on notice of that charge at all times and cannot claim that he is surprised here since the fact of his dismissal is not disputed and never has been, I FIND that the appointing authority correctly argues that the material fact of his dismissal and failure to complete the training course is not the subject of a genuine dispute and therefore, the County is entitled to summary decision. The MSB has not disturbed removals based upon a failure to complete the required training course, except in the face of allegations that are not part of this case. See Bridgeforth [v. Hudson County Dep't of Corr., CSV 11402-06, initial decision, (January 22, 2008), adopted, Merit System Board (March 3, 2008), http://lawlibrary.rutgers.edu/oal/search.htm l>] and [In re Elizabeth] Crespo, [PTC 07453-05 (July 14, 2006), adopted, Merit System Board (October 4, 2006), http://lawlibrary.rutgers.edu/oal/search.html>].
The ALJ also found that the positive test results that formed the basis of appellant's dismissal from COTA, which dismissal appellant did not appeal, provided an independent basis for his removal from his position as a correctional officer because such conduct "is surely inappropriate for any law enforcement officer and is clearly conduct unbecoming a public employee[.]" Moreover, the ALJ rejected appellant's attempt to challenge the lab test results when "faced as he is with a dismissal for unbecoming conduct," noting:
[H]is right to do so arose in the context of the dismissal from the Academy, which he did not choose to fight. Having foregone such a challenge, and allowing the final action of the training academy to stand, he should not now be allowed ...