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In the Matter of Kevin George.

February 3, 2011

IN THE MATTER OF KEVIN GEORGE.


On appeal from a final decision of the New Jersey Civil Service Commission.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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