February 3, 2011
IN THE MATTER OF KEVIN GEORGE.
On appeal from a final decision of the New Jersey Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Carchman, Messano, and Waugh.
Kevin George appeals his dismissal as a police sergeant in the City of Newark following a random drug test on which he tested positive for marijuana. We remand to the New Jersey Civil Service Commission (Commission) for reconsideration and clarification of its decision.
This is the second time we have considered this matter. In George v. City of Newark, 384 N.J. Super. 232, 235 (App. Div. 2006) (George I), we vacated a decision of the then Merit System Board (Board) reinstating George and remanded for additional factfinding and further consideration by the Board. We outlined the factual and procedural background as follows:
Pursuant to the Attorney General's Drug Screening Policy, the Newark Police Department, as part of its random drug testing program authorized by General Order 99-4, directed George to submit a urine specimen. The General Order required George to provide a minimum 60 ml of urine, with the specimen divided into a primary and split specimen, each containing at least 30 ml of urine. George complied, and his primary sample was delivered to the State Toxicology Laboratory.
The State Lab used a florescence polarization immunoassay (FPIA) test to screen George's primary sample preliminarily for the presence of eight illegal substances. The test's threshold level for cannabinoids, or marijuana, was 20 nanograms per milliliter (ng/ml). George's specimen tested positive for marijuana at 45.35 ng/ml.
Pursuant to the Drug Screening Policy, the positive test required the lab to perform a second confirmatory test of George's primary sample. This time the lab tested the sample by using gas chromatography/mass spectrophotometry (GC/MS) with the marijuana threshold at 10 ng/ml. The cut-off threshold level is set lower for GC/MS than for the FPIA, according to the State Lab, "because of the sensitivity of that particular methodology." George's sample again tested positive for marijuana at 23.0 ng/ml.*fn1
Pursuant to the Attorney General's Law Enforcement Drug Testing Manual, before a positive result is reported, a State Lab medical officer reviews "the test results together with the medication information form." In this form the officer being tested discloses any medications taken within the last fourteen days. The medical officer seeks "to determine whether any of the substances listed on the form would explain the positive test result." If there is no explanation found in the form, the positive result is reported to the pertinent police department.
Based on the lab results, the City terminated George from his sergeant's position. After months of delay caused by some initial confusion as to whether a request had already been made, George requested by letter that his split sample be tested by LabCorp, a licensed independent laboratory that George had selected from a list the City had provided to him. Despite the delay in making the request, which exceeded the General Order's sixty-day time-frame, the Department sent the split sample directly to LabCorp.
According to testimony from a forensic toxicologist, who had been employed by the State Laboratory for twenty-seven years, the State had advised independent labs, such as LabCorp, to utilize the same testing threshold required by the Attorney General Drug Screening Policy for use in law enforcement drug tests. However, neither George nor anyone from the State Lab or the City verified that LabCorp had received this instruction or ensured in any fashion that LabCorp understood the threshold that had been utilized in the testing of George's primary sample.
Shortly thereafter, LabCorp tested the split sample using a threshold level of 50 ng/ml, which is the threshold commonly used in private industry, and reported that the sample was negative for the presence of marijuana. The City apparently reported the result to George some ten months after the test had been performed. The administrative record does not reflect whether the split sample sent to LabCorp had been destroyed by the time George was notified of the result; whether the sample had likely degraded over time so that it could not be accurately tested; or whether LabCorp could, at the time of the hearing, have produced the actual testing result.*fn2
George denied knowingly ingesting marijuana and maintained that any exposure to marijuana came as a result of his job responsibilities as a police officer. George claimed that he had to handle marijuana evidence, which was often contained in plastic bags, and occasionally in the form of cigarettes.
George appealed his termination to the Merit System Board, and the matter was transmitted to the Office of Administrative Law. An administrative law judge conducted a hearing at which the parties stipulated to the chain of custody and the voiding and collection procedures employed by the City. The ALJ found George's testimony that he did not knowingly ingest marijuana to be unbelievable and issued an initial decision affirming the City's termination of George.
The Board concluded that it was the City's obligation to advise the independent lab of the proper threshold and reversed the initial decision. The Board determined LabCorp was "apparently" not advised of the threshold, and that the City's failure to so advise the lab rendered the testing process "fundamentally flawed" and deprived George of his "due process" opportunity to establish that the positive reading was false. The Board found the flaw "especially egregious in this case, since the initial test produced a positive result of 23 ng/ml, barely over the threshold of 20 ng/ml."
Consequently, the Board directed that George be reinstated and awarded back pay of $111,324.30; $631.71 to reimburse George for payments he made to maintain health insurance coverage within 30 days of receipt of the Board's decision; counsel fees of $10,255; and $1,000 for his expert witness costs. The City reinstated George on March 3, 2004, and thereafter appealed to this court. [Id. at 235-38 (some footnotes omitted).]
In George I, we "question[ed] whether the record contain[ed] sufficient evidence supporting the Board's decision that a due process violation occurred and that the entire testing process was 'fundamentally flawed'" and found "little to no support . . . in the record" for the Board's conclusion that "the split sample, if properly tested, would have constituted persuasive evidence that the State Laboratory's results were 'somehow invalid' or a 'false positive.'" Id. at 239. We also questioned the validity of the Board's comparison of the FPIA and GC/MS thresholds, its failure to consider whether George had an obligation to "follow-up" with LabCorp, and its having ignored the ALJ's determination that George was "well aware" that he had ingested marijuana. Id. at 240-41.*fn3
We analogized George's situation to that of a criminal defendant when the State "loses or otherwise damages or suppresses favorable evidence." Id. at 242. We noted that a failure to preserve "potentially useful evidence" is not a due process violation unless there was "bad faith," whereas the loss of "exculpatory evidence" is a due process violation without regard to good or bad faith. Id. at 243 (citations omitted).
We concluded that the split specimen was only "potentially exculpatory," noting that even a negative test result "would still only be evidence of a mistake in the two positive State Lab results and not clearly exculpatory." Ibid.
We outlined our reasons for remanding and the scope of the remand as follows:
When there has been suppression, loss, or destruction of physical evidence, our courts focus on three factors to determine whether a due process violation has occurred. These factors are: (1) the bad faith or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced. Where the lost evidence is merely potentially exculpatory, the court's finding of bad faith is crucial. In the absence of bad faith, relief should be granted only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence.
Applying these three factors to George's situation leads us to conclude that a remand is in order. First, there is no evidence the City acted in bad faith when it did not advise LabCorp of the proper testing threshold. In fact, the failure seems completely understandable given the absence of pre-existing direction or instruction regarding such a requirement.
However, the record indicates that the City waited over ten months before revealing the LabCorp test result to George. We do not know the reason for this delay or what LabCorp did with the split specimen or what the lab did during the delay with the specific numerical result of the test. In addition, we do not know precisely why LabCorp tested the specimen at the higher threshold or when, if ever, the State advised the private laboratories of the protocol governing law enforcement drug testing.
Second, the evidence was obviously material to the defense. The split specimen, when correctly tested, possessed an apparent potential exculpatory value. This evidence was unique in that, without it, George would be unable to obtain comparable evidence of the primary urine sample that was tested by the State Lab.
Third, the gravity of any prejudice allegedly suffered by George seems to us to be factually disputed. The record contains no evidence of any false positive rate associated with the GC/MS test. If the false positive rate or any potential error rate is low for this test, there is a serious question regarding whether defendant was prejudiced by not having a proper split specimen test result. In addition, George had the opportunity to challenge the State Lab test results and conducted a vigorous defense. Furthermore, the ALJ found George's testimony denying any voluntary marijuana ingestion to be incredible, though this finding was based only in part on credibility, with some of the judge's assessment obviously dependent on the testing evidence.
Consequently, we vacate the Board's decision and remand for further proceedings so the Board, after the necessary factual exploration and evaluation by an ALJ, may reconsider its conclusions that the City's failure constituted a due process violation and rendered the testing process "fundamentally flawed." On the remand, the parties shall be accorded an opportunity to address the open issues discussed in this opinion, including the statistical reliability of the GC/MS test, the City's reasons for delaying disclosure of LabCorp's test results, any information supplied by the State to licensed independent labs, and LabCorp's actions and practices from receipt of the split specimen until the date of the hearing before the ALJ.
[Id. at 243-45 (citations omitted) (quotation marks omitted).]
On remand, the same ALJ conducted a supplemental hearing on four days in February and March 2008. Several representatives of the Newark Police Department (Department) testified about its procedures for random drug testing and the specifics of George's case.
Lieutenant George Alberto, who was Executive Officer of the Internal Affairs Section in October 2001, testified that he sent the spilt sample to LabCorp. His original cover letter included "704661" as the number for the test to be performed. He received a telephone call from someone at LabCorp informing him that the number was invalid and telling him that the correct code was "704411." Alberto sent a second letter with "704411" as the test to be performed. He believed that LabCorp already knew the required test thresholds because it had performed other tests for law enforcement entities.
Alberto was subsequently advised by LabCorp that the test was negative, but did not recall being given the specific test result. He subsequently received a notice from LabCorp indicating a negative screening test at a cutoff of 50 ng/ml.
Alberto contacted the State Lab to ask why the LabCorp result would have been different from that determined by the State Lab. The technician with whom he spoke was unwilling to comment on the test performed by LabCorp. Consequently, Alberto was not alerted by the State Lab technician to the fact that LabCorp applied the wrong threshold.
Alberto then attached the LabCorp report to an interoffice communication to his superior, Captain Joseph Tutela, advising him of his conversation with the State Lab technician. Alberto did not hear anything further from Tutela with respect to the results. Alberto took no steps to notify George or any of his representatives that the LabCorp result was reported as negative.
Tutela testified that he did not see Alberto's memorandum until the current litigation began. Initials at the bottom of the document indicated that it had been sent to Deputy Police Director Lisa Alexander Taylor, who was his superior. He stated that, if the document had been sent directly to her without going through him, the transmission would have been outside the Department's chain of command. He did not recall discussing George's test results with Alberto. Tutela testified that he subsequently heard "scuttlebutt" to the effect that the test had been negative.
Joseph Watson, a technician for LabCorp, testified that George's split sample was tested at LabCorp's default threshold, 50 ng/ml for marijuana metabolites, because the documentation that accompanied the sample did not specify a different threshold. The test code "704411," which was contained in Alberto's second letter to LabCorp, was the correct code for the test actually performed. Watson did not know whether the Department knew that the "704411" code called for use of the 50 ng/ml threshold. However, he testified that, because there had also been a request for the more sensitive GC/MS test, someone from LabCorp should have inquired whether the Department wanted a lower threshold used for the initial FPIA test. He also testified that, in the normal course of business, the remainder of George's split sample would have been destroyed five to seven business days following the negative result on the initial test.
Robert Havier, Ph.D., a toxicologist who had worked at the State Lab since 1979, testified that he reviewed the results of the GC/MS test on George's urine sample and the procedures used by the State Lab. After a positive test using the FPIA method, two vials containing samples of George's urine were tested using the GC/MS method. One resulted in a marijuana metabolite concentration of 22.95 ng/ml, while the second resulted in a concentration of 20.83 ng/ml. The difference between the two was 2.1 ng/ml. The State Lab rounded up the higher of the two results to 23.0 ng/ml and reported a positive result to the Department.
Havier testified that the State Lab had been subject to criticism for failing to have written standards concerning testing procedures and that the informal procedures it did have were not followed by the lab technician who tested George's sample. Havier acknowledged that the lab technician incorrectly labeled "calibrated" samples as "control" samples. The "calibrated" samples are "used to establish a linear relationship between the concentration of a drug and the response by the instrument to a particular ion mass." In addition to mislabeling the "calibrated" samples, the technician also failed to run any control samples, which determine the accuracy of the extraction procedure used in preparing the specimens for analysis.
Havier testified that the accuracy of the resulting concentration readings "could be questioned" in the absence of such control tests. Havier was asked whether, in his opinion, "the lack of these controls render these tests unreliable." In response, he had the following exchange with the ALJ:
[THE WITNESS]: Some people would say "Yes."
THE COURT: How do you define "unreliable?"
THE WITNESS: There's no way of knowing how accurate the analysis is.
THE COURT: What does that mean precisely? There could be an absence, it can have a metabolite?
THE WITNESS: I think it's clear that the cannabis are there based on the ions. The . . . concentration level can be questioned.
THE COURT: And again you said that would be in your opinion?
THE WITNESS: In my opinion it is within one nanogram.
THE COURT: Within one nanogram.
THE WITNESS: But I'm basing that opinion on the accuracy of the calibrators.
THE COURT: On the calibration. Is there anything to dispute the accuracy of those calibrators based on what you've seen in those documents.
THE WITNESS: No.
Havier did not think anyone within the "toxicological community" would question that there was some level of marijuana metabolite in George's urine sample, although some would question the accuracy of the levels determined by the State Lab's tests. In the present context, of course, the level of marijuana metabolite, i.e., whether it is above or below the applicable threshold, is a crucial issue.
During cross-examination, Havier conceded that he had testified at his deposition that the 2.1 ng/ml deviation between the two results for George's sample was "outside the acceptable range of deviation" and that the test should have been "rerun." However, he characterized his deposition testimony as a "mistake." He did not recall having testified at his deposition that the results were "not sufficiently reliable" to allow him to "form a determination," but acknowledged that if such testimony was in the transcript he must have given it.*fn4
Havier also testified that "passive inhalation" of marijuana would not have led to concentration levels such as those reported for George's urine sample, both of which were above 20 ng/ml. He acknowledged that, at some point after George's sample was analyzed, the State Lab increased the threshold for a positive finding of marijuana metabolic from 10 ng/ml to 15 ng/ml because of concern that passive inhalation of marijuana could return a result above 10 ng/ml on a GC/MS test. He acknowledged that some studies suggested passive inhalation could result in levels up to 20 ng/ml.
George offered Seth William Kullman, Ph.D., and Brian Pape, Ph.D., as expert witnesses. Kullman testified the State Lab's testing procedures deviated from "generally accepted standards of scientific practice for analysis" and that the lab technician who tested George's urine sample had deviated from the State Lab's own protocols. He explained his reasons in considerable detail. Kullman agreed with the position Havier had taken at his deposition, but retracted at the trial, that the 2.1 ng/ml variation in the results reached on the State Lab's two tests was outside the acceptable range. The deviation rendered the results "unacceptable" in Kullman's opinion, and the test should have been run again from the beginning.
Kullman also gave his opinion that passive inhalation of marijuana could result in a GC/MS test result up to 20 ng/ml, although he was unable to identify any specific literature upon which he relied in formulating that opinion. Havier had testified that he was aware of such literature, but had not read any of it.
Pape testified that the State Lab followed faulty procedures and that the test results were, consequently, unreliable. He further testified that the control runs, which were not performed, were necessary to verify that the result reached was accurate in terms of the concentration of marijuana metabolite.
George testified and acknowledged that he did not submit an application for the split sample to be tested five days after the positive test results from the State Lab, as required by the Department's regulations, because he had relied on his union to do so for him. He testified that he only found out that the split sample had tested negative after the results of the test were transmitted to his counsel in August 2002. However, he had heard informally that the results were negative in November 2001. George further testified that he made no efforts to contact LabCorp about the results himself because he thought the Department would contact him when it received the split sample results.
The ALJ issued his initial decision on the remand on January 12, 2009. He affirmed the termination for a second time. In the decision, the ALJ listed each of the issues to be explored on remand and set forth his findings with respect to each.
First, on the issue of the statistical reliability of the GC/MS test, the ALJ made the following findings:
None of the witnesses directly attacked the statistical reliability of the GC/MS test. Rather, what was attacked was the method or the alleged lack of methodology used by the lab technician in the administration of the GC/MS test. As for the statistical reliability of the test, there were only references to the sensitivity level of the test and operational errors that could affect the results for this relational value based instrument.
Robert Havier indicated the sensitivity of the GC/MS is set at five nanograms per milliliter for the presence of marijuana metabolite. Any result less than five nanograms per milliliter is considered a negative result for purposes of the state lab.*fn5 The two test results here were 22.95 nanograms per milliliter and 20.83 nanograms per milliliter.
Seth Kullman indirectly attacked the statistical accuracy of the GC/MS when in his report he opined that "the statistical accuracy of the GC/MS testing is solely reliant on the repetitive responses of the control samples and internal standards as well as strict adherence to the validated internal protocols established by the testing facility specific to their equipment." He further opined in that written report that "the reliability of the overall analysis cannot be established because of the numerous deviations from protocols set forth . . ."
Brian Pape testified that the GC/MS tests the relationship of the instrumental response as compared to a standard curve. The GC/MS responded properly with regard to the response data. Pape acknowledged that it is natural to look at the response data for the three standards used and to opine that the results are correct. That would depend on the preparation of the standards and documentation as to the origin of the carboxyl THC used and when it was obtained.
The evidence clearly established that there were four calibrators used in the state lab testing procedures to establish a linear relationship between concentration and response of the instrument. These were 50 ng/ml, 20 ng/ml, and 10 ng/ml, as well as the internal standard only. The 50 ng/ml calibrator had a result of 50 ng/ml; the 20 ng/ml calibrator had a result of 19.57 ng/ml; and the 10 ng/ml calibrator had a result of 9.81 ng/ml. The internal standard had a result of zero.
The GC/MS instrument is a relational value based machine. I am convinced beyond doubt that the use of the four calibrators in the George sample testing procedure evidences that the instrument used by the state lab was properly functioning at the time. I am further convinced that the slight deviations between the two test results only relate to concentration, and not presence of the marijuana metabolite.
At the levels found, 22.95 and 20.83, I find this deviation to be of little or no significance or import. Simply put, there was no evidence adduced to impugn the statistical reliability of the GC/MS test.
The ALJ found that Havier was more credible than George's expert witnesses with respect to the GC/MS testing. He concluded that "[t]he statistical reliability of GC/MS test is not even in doubt." He found that George's expert witnesses were not less credible because of a lack of knowledge or expertise, but because they lacked "candor as to the entirety of the documentary evidence." He noted that Kullman attacked "the administration of the test by the technician, who was never called to address those attacks," but never "addressed the significance of the calibration tests within minimal variations from the standards used" or the significance of the split sample test by LabCorp. He found that Pape was equally unconvincing because "he virtually refused to render an opinion as to the significance of the four calibrators run with the GC/MS [test]" and that he failed to account for the results of the LabCorp test, which had been available for his review.
On the second issue, the ALJ concluded that the City did not notify George about the negative LabCorp result until August 2002. However, he found no evidence that the City's delay was intentional or in bad faith.
Third, on the issue of information provided by the State to LabCorp, the ALJ found that there "was no evidence of any communications between the [State] and the independent labs as it relates to the protocols to be used in conducting split sample tests." He noted that Watson, whom he found to be a credible witness, testified that LabCorp never followed up with the City to clarify what guidelines or protocols were to be followed.
With regard to the fourth issue, the ALJ again relied on Watson's testimony for his findings relating to LabCorp's actions and practices with respect to the remainder of the split sample. From that testimony, the ALJ concluded that the test was conducted by LabCorp on October 19, 2001, during which a 50 ng/ml threshold was applied. The results showed 29 ng/ml of marijuana, but were reported as negative because the result was below the threshold applied by LabCorp. The ALJ found that the remainder of the sample was discarded on November 1, 2001.
The ALJ also concluded that there was no due process violation and no proof that "the entire testing process was fundamentally flawed." He determined that the results of LabCorp's FPIA test on the split sample confirmed the presence of 29 ng/ml of marijuana, a level above the law-enforcement threshold for a FPIA test. The ALJ also found that, while there may have been neglect, there was no evidence that the delay in advising George of LabCorp's results was intentional or rose to the level of bad faith. Based on Watson and Alberto's testimony concerning communications between the Department and LabCorp, the ALJ found no evidence of "foul play" with respect to LabCorp's use of the wrong threshold.
The ALJ also found that there was no Brady*fn6 violation with respect to the State Lab's initial failure to disclose both of its test results, noting that both tests were positive for marijuana and that they were made available long before the remand hearing. The ALJ concluded that the evidence showed "beyond a doubt" that George's samples tested positive for marijuana.
In a Final Administrative Action issued on March 12, 2009, after its de novo evaluation of the record, N.J.S.A. 11A:2-6, the Commission agreed with the ALJ's assessment of the expert testimony and credibility determinations. The Commission generally accepted and adopted the findings, conclusions, and recommendations of the ALJ, and affirmed George's termination from the Department. However, the Commission rejected the ALJ's assertion that the LabCorp test confirmed George's use of marijuana, noting that the FPIA test is used only as an initial screen and must be confirmed by the more sensitive GC/MS test.
This appeal followed.
On appeal, George raises the following issues:
POINT I: THE ADMINISTRATIVE LAW JUDGE ERRED BY SUPPLANTING THE SWORN EXPERT SCIENTIFIC TESTIMONY WITH HIS OWN ANALYSIS.
A. THE INITIAL DECISION ON REMAND CONTAINS BLATANT ASSUMPTIONS WITHOUT ANY FACTUAL BASIS.
POINT II: THE ADMINISTRATIVE LAW JUDGE ERRED BY RELYING UPON THE NET OPINION OF THE CITY'S TOXICOLOGIST.
A. FAILURE TO GRASP THE GRAVITY OF CONTRADICTION AT DEPOSITIONS.
POINT III: THE ADMINISTRATIVE LAW JUDGE ERRED BY FAILING TO APPLY THE EVIDENCE REGARDING GC/MS TESTING TO THE APPELLATE DIVISION DIRECTIVES.
A. GC/MS TESTING IS ONLY RELIABLE ON A TEST BY TEST BASIS.
POINT IV: THE ADMINISTRATIVE LAW JUDGE ERRED BY FAILING TO HOLD THE CITY TO ITS BURDEN OF PROOF.
POINT V: THE ADMINISTRATIVE LAW JUDGE FAILED TO RECOGNIZE THE CITY'S BRADY VIOLATION WHEN IT FAILED TO TURN OVER EXCULPATORY EVIDENCE THAT PREJUDICED GEORGE. POINT VI: THE CITY VIOLATED GEORGE'S DUE PROCESS RIGHTS WHEN IT FAILED TO NOTIFY THE INDEPENDENT LAB OF THE LOWER CUT-OFF THRESHOLD.
A. A FINDING OF BAD FAITH IS A PREREQUISITE FOR A FINDING OF A DUE PROCESS VIOLATION.
B. THE CITY'S FAILURE TO HAVE REASONABLE PROCEDURES IN PLACE TO ENSURE SPLIT SAMPLE TESTING AT THE PROPER LEVELS RENDERED THE TEST MEANINGLESS AND DENIED SGT. GEORGE THE FULL AND FAIR EXERCISE OF THAT RIGHT.
POINT VII: BAD FAITH ON THE PART OF THE CITY MAY BE INFERRED FROM A PATTERN OF CONDUCT BY BOTH THE CITY OF NEWARK AND THE STATE LABORATORY IN LIGHT OF THE TOTALITY OF THE CIRCUMSTANCES.
POINT VIII: GEORGE'S EFFORTS TO OBTAIN THE RESULTS OF HIS SPLIT SAMPLE TEST WERE REASONABLE IN LIGHT OF THE CIRCUMSTANCES.
The scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord to the agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. See City of Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980), cert. denied, 449 U.S. 983, 101 S. Ct. 400, 400, 66 L. Ed. 2d 245, (1980). The burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).
The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.), certif. denied, 176 N.J. 281 (2003). This deference is particularly appropriate when the agency has adopted the findings of the ALJ because the ALJ and not the agency has the opportunity to hear "live testimony" and "judge the witnesses' credibility." See Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).
Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992).
We address George's arguments in the context of our remand in George I, the reasons for which were outlined above. Our concerns focused on the Board's conclusion that George had been denied due process and that "the entire testing process was 'fundamentally flawed'" because George was deprived of the opportunity to present exculpatory evidence. George I, supra, 384 N.J. Super. at 239. We questioned whether the record then before us supported the Board's conclusion to that effect.
In addressing the issue, we analogized the situation to criminal cases in which physical evidence has been suppressed, lost or destroyed. Id. at 242. In such cases, the courts focus on three issues: (1) bad faith, (2) materiality, and (3) prejudice. Id. at 243. Because we concluded that the lost evidence, i.e., the split sample, was only "potentially exculpatory," we noted that a finding of bad faith is "crucial" and that, in the absence of bad faith, "relief should be granted only where there is a showing of manifest prejudice or harm arising from the failure to preserve evidence." Ibid. (citation omitted) (internal quotation marks omitted). Consequently, we remanded for exploration of issues related to bad faith and prejudice, having concluded that "the evidence was obviously material to the defense." Id. at 244.
To demonstrate bad faith, George was required to present evidence either of egregious carelessness or misconduct. See State v. Laganella, 144 N.J. Super. 268, 282-83 (App. Div.), appeal dismissed, 74 N.J. 256 (1976). The ALJ concluded that there was no bad faith, finding that no such evidence was adduced at the hearing. George challenges that finding. He argues that, because the Department's witnesses never explained their failure to notify him of the results of the LabCorp test until ten months after they were received, bad faith should have been inferred. He also points to the Department's failure to notify LabCorp of the applicable parameters for testing split samples submitted for the purpose of screening a law enforcement officer.
While the factors outlined by George might support a finding of bad faith, that was not the conclusion reached by the ALJ, who heard the police witnesses testify and had the opportunity to judge their credibility, nor was it the conclusion reached by the Commission on de novo review. The ALJ noted that the records themselves were maintained by the Department, and attributed the delay in reporting the results to negligence that did not rise to the level of bad faith. The ALJ further concluded that LabCorp's testing at a higher cutoff level was the result of LabCorp's failure to inquire about the appropriate testing level, an inquiry Watson testified should have been made, in addition to Alberto's lack of familiarity with the required cutoff level and his assumption that LabCorp would have the required information. Because the record contains substantial support for the ALJ's conclusion that the Department did not act in bad faith, we cannot substitute our judgment for that of the ALJ. Greenwood, supra, 127 N.J. at 513.
In George I, supra, 384 N.J. Super. at 243-44, we held that, "[i]n the absence of bad faith, relief should be granted only where there is a 'showing of manifest prejudice or harm' arising from the failure to preserve evidence." (Citation omitted). See also State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009); De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 494 (App. Div.), certif. denied, 102 N.J. 337 (1985). As we observed in De Vitis, "'[w]henever potentially exculpatory evidence is permanently lost [or destroyed] courts face the treacherous task of divining the import of materials whose contents is [sic] unknown and, very often, disputed.'" Id. at 495 (quoting California v. Trombetta, 467 U.S. 479, 486, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 421 (1984)).
Had the initial test of the split sample been performed at the correct threshold, it would have resulted in a positive FPIA reading. That would have required LabCorp to perform the more sensitive GC/MS test, the results of which could then have been compared to the result reached by the State Lab. However, even if LabCorp's testing had resulted in a reading below the 10 ng/ml threshold the State Lab used at the time, George would not have been exonerated automatically. There would still have been a hearing at which the conflicting readings would be evaluated and a determination made as to whether the Department met its burden to prove that George's urine specimen contained an unacceptable level of marijuana.
In order to determine whether there was "manifest prejudice or harm" that would warrant dismissal of the charges against George based upon the lost opportunity to have LabCorp perform a GC/MS test, we must first look at the reliability of the State Lab's test results.
The ALJ and the Commission determined that those results were reliable, despite the issues raised by George at the remand hearing. George argues that the ALJ misunderstood the scientific evidence and reached an incorrect result, which was then adopted by the Commission. Our review of the record raises questions about the conclusions reached by the ALJ and the Commission with respect to the reliability of the State Lab's results.
First, it is not clear that the ALJ fully appreciated that the reliability of the test results in this case depended to a significant extent on the procedures used to perform the test, rather than just the statistical reliability of a GC/MS test if properly performed. Although we directed that an inquiry should be made as to the reliability of the GC/MS test as part of the remand, we now focus on a different question, i.e., the adequacy of the procedures followed in performing the test. There was no dispute at the hearing that the test is generally accurate as long as it is performed correctly. Consequently, the crucial issue was whether the test of George's sample was performed correctly by the State Lab.
The reliability of the results achieved, in light of the procedures followed by the technician, was hotly disputed at the remand hearing, particularly with reference to the quantity of marijuana metabolites present. Yet, the ALJ appeared to minimize the importance of accuracy in terms of quantity, in contrast to the simple presence of metabolite. For example, in questioning Kullman's credibility, the ALJ stated:
Seth Kullman did not attack the statistical reliability of the GC/MS instrument, because he could not. Rather, he attempted to attack the administration of the test by the technician, who was never called to address those attacks. This was an attempt to refute the precision of the methodology and not the instrument. Kullman lacked candor in that he never addressed the significance of the calibration tests within minimal variations from the standards used. That was most significant in my mind. Even some deviation from the standard would only address an issue of concentration and not presence of the metabolites. Kullman did not attempt to address the significance of the split sample test conducted by LabCorp. It may be that he was unaware that the test print out actually showed a positive result for presence of THC metabolite, but I find that unlikely in light of the extent to which he scrutinized the submissions of the respondent.
In addition, the quoted section places significant reliance on the results of LabCorp's FPIA test, which the Commission, in its final decision, correctly rejected as being irrelevant to the validity of the results of the GC/MS test.
Second, there is the question of the applicable threshold. The ALJ concluded that "[a]ny result less than five nanograms per milliliter is considered a negative result for purposes of the [S]tate [L]ab." That was not the testimony at the hearing. Havier testified that 5 ng/ml was the test's sensitivity threshold for marijuana metabolites, i.e., any result below that number would not be reliable as evidence that any marijuana metabolite was present in the sample. The key issue for the purpose of this case, however, was not the presence or absence of the metabolite itself, but whether the quantity detected was above the applicable threshold.
The Attorney General's Policy provided for use of drug thresholds determined by the State Lab. At the time George's sample was tested, the State Lab used a threshold of 10 ng/ml for marijuana metabolites. It subsequently increased the threshold to 15 ng/ml because there was concern that a level below that could be achieved through passive inhalation. Havier testified that he shared that concern and had urged that the threshold be increased. Absent a compelling argument to the contrary from the Commission, we see no reason why the higher, 15 ng/ml threshold should not apply in this case, based on the fact that the prior threshold was increased by the State Lab specifically because of concerns about passive inhalation.
Although George challenged both thresholds used by the State Lab, arguing that even 15 ng/ml was too low to exclude passive exposure to marijuana, we are satisfied that he did not demonstrate the correctness of his position. Kullman argued for a 20 ng/ml threshold, but was unable to cite any specific studies supporting that position. Although Havier had previously acknowledged that he was aware that there were such studies, none were produced at the remand hearing and Kullman's opinion was unsupported in that regard. We conclude that there was insufficient evidence in the record to support George's argument that failure to adopt the 20 ng/ml threshold was arbitrary, capricious, or unreasonable, and that the evidence supported the use of the 15 ng/ml threshold now used by the State Lab.
Nevertheless, it appears that the ALJ, and hence the Commission, used an incorrect threshold, 5 ng/ml, when a higher threshold was required. That error is significant in light of the legitimate questions about the accuracy of the State Lab's testing procedures and results with respect to the quantity of marijuana metabolite in George's urine sample.
Third, George attacked the accuracy of the State Lab's GC/MS testing results. George initially argued that the lab technician should have run calibrations on the testing machine with standard solutions, and then performed control runs with samples prepared at the same time as the subject specimen. It is not disputed that the State Lab's technician did calibration runs, although she mislabeled them as control runs. It is also undisputed that she did not perform any control runs. Consequently, there was verification that the machine was responding linearly to drug concentrations, but not that the measurements for the standard were accurate or that the specimen samples were properly prepared.
Havier acknowledged that the proper procedure was not followed and that "some" would say that the failure to perform both runs would render the results unreliable, the position taken by George's experts. Havier testified that it was clear that there were marijuana metabolites in George's urine, but that the concentration level could be questioned.
Havier had testified at his deposition that a variation between test results within ten percent of the applicable threshold would be acceptable. Depending on whether the applicable threshold is 10 ng/ml or the subsequently-adopted 15 ng/ml, the acceptable range would then be 1 ng/ml or 1.5 ng/ml, respectively. While the two samples tested by the State Lab showed levels above 20 ng/ml, the difference between the two was 2.1 ng/ml-twice the ten percent variation mentioned by Havier using a 10 ng/ml threshold. Even using the 15 ng/ml threshold, the variation would be outside the ten percent range.
At his deposition, Havier also testified that such a deviation would require that the tests be rerun. He changed his position at the hearing without a clear explanation for the change. Nevertheless, we note that, later in his testimony, Havier may have been attempting to explain that he had been mistaken because he had meant to say that the tests would have to be rerun if there was more than a ten percent variation between the two test results.
If so, the significance of that correction is unclear because the two readings were 20.83 ng/ml and 22.95 ng/ml, the latter being slightly more than ten percent higher than the former (20.83 plus 2.083 equals 22.913). That may be why Havier maintained that the two results were within ten percent of each other or "close to it." Nevertheless, "close to it" is still not within the range. Given the admitted problems with the State Lab's test procedures and the technician's performance with respect to George's sample, we would have expected the ALJ and the Commission to explain why a "close to it" approach to accuracy would be acceptable.
In fact, the issue was not specifically discussed in either decision, except for the ALJ's comment that, because "the slight deviations between the two test results only relate to concentration, and not presence of the marijuana metabolite," the deviation was "of little or no significance or import." He also observed that "[e]ven some deviation from the standard would only address an issue of concentration and not the presence of the metabolites." Those statements support our concern that the ALJ did not appropriately focus on the importance of the quantity of metabolite in relationship to the applicable standard.
George's next attack centers on the failure of the lab technician to count each of the three ions used to determine the presence of marijuana metabolites. All three must be present, although only the amount of one of them is used to determine the concentration level. When George's sample was tested, the technician recorded the level of only one of the three ions. Although Havier assumed that the technician actually measured the other two, those results were not documented.*fn7 George argues that Havier's assumption that the other ions were actually and accurately measured is not warranted because of the technician's undisputed failure to follow other State Lab procedures, e.g., the failure to perform the control runs and to label the calibration runs correctly.
George's experts also argued that the technician counted the wrong ion to obtain the concentration level. Havier appeared to acknowledge that the State Lab now uses the ion preferred by George's experts, but he took the position that use of a different ion for George's test did not undermine the accuracy of the test. Neither the ALJ nor the Commission's decisions addressed those challenges to the accuracy of the State Labs' testing procedure in terms of its quantification of the metabolite in George's urine sample.
Fourth, there is the question of credibility, an area in which we generally show deference to the findings of an administrative tribunal. The ALJ found Havier more credible than Kullman and Pape, and the Commission agreed. Yet, the ALJ never addressed Havier's retraction of his deposition testimony that the deviation between the two tests rendered the results unreliable. In addition, the ALJ failed to address the import of the admitted problems with the technician's failure to follow procedures, despite his conclusion that Pape "made compelling attacks on the methodology used by the State Lab." (Emphasis added). We would have expected those issues to be addressed under the circumstances, inasmuch as they are related to the crucial issue of the quantity of marijuana metabolite in relation to the applicable threshold.
As noted above, the ALJ's credibility findings were focused primarily on the presence of metabolite, rather than its quantity. The latter, however, was the crucial issue. And, his assessment of the credibility of both Kullman and Pape relied in part on their failure to find the LabCorp results significant, an assessment clearly undercut by the Commission's rejection of the relevance of the FPIA results.
Because of our concerns, we remand to the Commission for reconsideration and further explanation. First, the Commission must establish the applicable threshold against which the results of George's tests are to be judged. In that regard, we would anticipate application of the current 15 ng/ml threshold, absent a clearly articulated and compelling reason to use the threshold that the State Lab itself has abandoned because of concerns it is too low.
Second, the Commission must reconsider its credibility findings in light of the ALJ's repeated reliance on the LabCorp results, the relevance of which the Commission disavowed in its final decision, and also provide further explanation for its acceptance of Havier's testimony and rejection of Kullman and Pape's testimony. In doing so, it should address the questions raised above.
Third, the Commission must determine whether, in light of its conclusions on the first two issues, the Department met its burden to demonstrate that George failed the random drug test. And, finally, if it does find that the test was failed, the Commission must determine whether George has made "a showing of manifest prejudice or harm," George I, supra, 384 N.J. Super. at 243-44, with respect to his having lost the opportunity to have a GC/MS test performed by LabCorp through no fault of his own.
Remanded for reconsideration and further explanation consistent with this opinion. Jurisdiction is not retained.