On appeal from the Civil Service Commission, CSC Docket No. 2008-1393.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011
Before Judges Fuentes and J. N. Harris.
Appellant Jose Martinez appeals from the final administrative decision of the Civil Service Commission (Commission) upholding his removal from the list of eligible candidates for the position of firefighter in the Jersey City Department of Fire and Emergency Services. We affirm.
The facts are not in material dispute. On August 23, 2006, Martinez provided hair and urine samples for a required drug screening as part of the application process to become a Jersey City firefighter. The hair and urine samples were collected by Dynamic Testing Services, Inc., in Toms River, and two days later, they were received by Medtox Scientific, Inc. (Medtox), a laboratory in St. Paul, Minnesota, for testing. There is no direct, tangible evidence that the samples received in Minnesota were those collected in New Jersey, because no one from Medtox signed a form acknowledging acceptance of the samples.
The next day, the hair and urine samples were tested for the presence of amphetamines, marijuana, opiates, cocaine, and phencyclidine (PCP). The urine sample came back positive for cocaine only. To verify these results, the laboratory conducted a confirmatory test using the gas chromatography/mass spectrometry method. The threshold for the GC/MS test was set at 150 ng/ml (nanograms*fn1 per milliliter). The urine sample tested positive for cocaine, registering 216 ng/ml. The hair sample, however, tested negative for all drugs.
Martinez's name was removed from the list of eligible firefighter candidates because of the positive results from the urine sample. Martinez appealed the decision to remove his name from the list to the Commission.
On appeal to the Commission, Martinez reiterated his position that he had not ingested any controlled dangerous substances. He also argued that in urine testing, the presence of a drug or drugs does not provide information as to whether an individual is actually under the influence at any particular time. Lastly, Martinez asserted that hair drug testing by comparison to urine drug testing is far more effective because it provides a much longer duration for analysis.
The Commission rejected Martinez's arguments. In its final determination, the Commission noted:
[W]hile appellant is correct that hair drug testing detects drug use for a longer period of time, up to [ninety] days prior to testing, the drugs cannot be detected until approximately [seven] to [ten] days from the time of drug use. This is the time in which the affected hair grows from the follicle to emerge above the scalp. [(Footnotes omitted).]
The Commission used this information to explain the discrepancy between the urine sample testing positive for cocaine, while the hair sample tested negative for all illicit drugs. The Commission also noted that Martinez "provide[d] no medical documentation to refute the positive urine drug test or any reasonable explanation for the positive test results."
The Commission found that the "appointing authority ha[d] met its burden of proving that [Martinez] had a positive drug screen and that such matter would prevent him from effectively performing the duties of the position at issue. [Martinez], therefore, does not meet the required physical qualification for the position of Fire Fighter." Accordingly, the Commission affirmed the removal of Martinez's name from the list of eligible candidates. This appeal followed.
Martinez's brief contains only a single point heading, but he makes three distinct arguments*fn2 : (1) the Commission's decision was arbitrary, capricious, and unreasonable because it chose to "suppress and/or ignore" the results of the hair sample analysis; (2) the chain of custody for both the urine and hair samples was compromised; and (3) the heightened standard of clear and convincing evidence should have been applied by the Commission, and there was "insufficient clear and convincing evidence" supporting the ...