On appeal from the State of New Jersey Civil Service Commission, CSC Docket No. 2009-273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Simonelli and Fasciale.
This appeal involves the removal of respondent R.J. from his
employment as a corrections sergeant with appellant New Jersey
Department of Corrections (DOC) based on a random drug screen, which
resulted in a positive test for cocaine. In a January 17, 2008
decision, the Merit System Board (MSB), now
known as the Civil Service Commission (Commission),*fn1
adopted the initial decision of an administrative law judge
(ALJ) reversing R.J.'s removal and reinstating him with back pay and
other benefits. In a September 25, 2008 decision, the Commission
denied the DOC's request for reconsideration. We conclude the
decisions are not supported by sufficient, credible evidence in the
record and are arbitrary, capricious and unreasonable. We, therefore,
R.J. began his career as a corrections officer in 1988. In 2003, he became ill and was subsequently diagnosed with HIV/AIDS. He takes a "cocktail" of medications several times each day to treat his illness. Those medications, along with his illness, negatively affect his immune system, making him susceptible to respiratory infections and bronchitis that require him to take additional medications.
On February 17, 2006, the DOC selected R.J. for a random drug screen pursuant to the Attorney General's Law Enforcement Drug Testing Policy (the Drug Testing Policy). R.J. reported to the Special Investigation Division of East Jersey State Prison for testing. A senior investigator gave R.J. the necessary paperwork to complete prior to the drug test, including the DOC Drug Screening Program Monitor booklet. As required, R.J. wrote his social security number and name on the top of the booklet and signed the Drug Testing Employee Notice and Acknowledgment form. He also completed a medical questionnaire, which required him to list all medications he had ingested within the last thirty days. Due to limited space on the questionnaire, R.J. listed only three medications, but he verbally advised the senior investigator that he "had a lot of medication." The senior investigator did not recall whether he gave R.J. an extra sheet to list additional medications.
R.J. voided in two specimen collection containers and followed the proper procedure to mark and identify each. The DOC delivered one specimen to the New Jersey State Toxicology Laboratory for analysis, and stored the other in a secured freezer. According to the Drug Testing Policy, the State Toxicology Lab "constitute[s] the sole facility for the analysis of law enforcement drug tests. Law enforcement agencies are not permitted to use any other facility or laboratory for purposes of analyzing urine specimens."
Using a fluorescence polarization immunoassay analysis, the State Toxicology Lab tested R.J.'s specimen for the following substances and their metabolites: amphetamine/methamphetamine, barbiturates, benzodiazepine, cannabinoids, cocaine, methadone, phencyclidine, and opiates. R.J.'s specimen tested positive for cocaine and negative for all other substances including opiates.
The Drug Testing Policy requires that specimens testing positive for a controlled substance undergo a gas chromatography/mass spectrophotometry (GC/MS) test to confirm the presence of the controlled substance. If the GC/MS test confirms the presence of a controlled substance, a medical review officer at the State Toxicology Lab must compare the test results with the subject's medical questionnaire to determine whether any medication listed would explain the test results. If there is no such explanation, the medical review officer issues a report indicating that the specimen tested positive for a controlled substance.
The GC/MS test of R.J.'s specimen confirmed the presence of
benzoylecgonine, the metabolite*fn2 of cocaine, in an
amount exceeding thirty-five times the cut-off level.*fn3
The medical review officer issued a report confirming that
the specimen tested positive for cocaine. R.J. had LabCorp., an
State-approved laboratory, test his second specimen. This test also
confirmed the presence of benzoylecgonine in R.J.'s specimen.
The DOC has a zero-tolerance policy for illegal drugs; any employee testing positive shall be terminated. As a result of R.J.'s positive test result, the DOC filed a Preliminary Notice of Disciplinary Action against R.J. seeking his removal for conduct unbecoming a public employee, that is, for the use, possession or sale of a controlled dangerous substance.
R.J. submitted a letter from his treating physician, James Greenman, M.D., who asked the DOC to conduct further testing to determine whether the medications Truvada and Kaletra, which R.J. regularly ingested, were present in the specimen. R.J. believed a mix-up in the urine specimen must have occurred, as he denied using cocaine. ...