On appeal from the New Jersey Transit Police Department, New Jersey Transit Corporation, Docket No. 08-103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 20, 2011 --
Before Judges Yannotti and Kennedy.
Laquan Hudson (Hudson) appeals from a final determination of the New Jersey Transit Police Department (NJTPD or department), which upheld the termination of his employment for conduct unbecoming a police officer and use of intoxicating beverages or drugs. We reverse.
Hudson began his employment with the NJTPD on July 30, 2001. On March 9, 2007, Hudson underwent a drug screening urinalysis. On that date, the Essex County Prosecutor's Office (ECPO) informed the NJTPD that Hudson's urine sample had tested positive for amphetamines. On the same day, Joseph C. Bober (Bober), Chief of Police of the NJTPD, served a letter upon Hudson, informing him that he was suspended without pay as a result of his violation of the NJT Drug and Alcohol Policy. Bober wrote that the suspension was in accordance with the Attorney General's Law Enforcement Drug Testing Policy.
On March 12, 2001, Bober issued a letter to Hudson terminating his employment. Hudson appealed to this court from the decision to terminate his employment. Among other things, Hudson argued that he had been denied administrative due process because he was terminated without a hearing as required by N.J.S.A. 27:25-15.1c.
We reversed the NJTPD's decision because Hudson had not been provided with notice of the proposed disciplinary action and the opportunity for a hearing to contest the charges. In re Laquan Hudson, No. A-3646-06 (App. Div. Aug. 1, 2008) (slip op. at 9). We remanded the matter to the agency so that it could proceed with a formal disciplinary action, with notice to Hudson and the opportunity for a hearing to contest the allegations. Ibid.
On August 11, 2008, the NJTPD served Hudson with notice of proposed disciplinary action, charging him with conduct unbecoming an officer and use of intoxicating beverages or drugs. The notice indicated that the basis for the charges was the results of Hudson's March 9, 2007 drug screening urinalysis, which "confirmed positive for amphetamines." The notice also indicated that, if sustained, the charges could result in a suspension of six or more days or termination. Hudson pled not guilty to the charges, and the matter was referred to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).
In the OAL, Hudson moved for dismissal of the charges on the ground that the NJTPD failed to file a complaint against him within forty-five days after obtaining information to support the charges, as required by N.J.S.A. 27:25-15.1c. Hudson argued that, while the NJTPD had received information regarding the positive results of his drug screen on March 9, 2007, the department did not serve him with notice of the charges until August 11, 2008. NJTPD opposed the motion. The ALJ denied the motion, finding that Bober's letters of March 9 and March 12, 2007 provided Hudson with notice of the charges and the basis therefor within the time required by the statute.
At the hearing, Hudson testified that in 2005, Dr. Mauricio Sanchez treated him for obesity and prescribed phentermine, xenical and lasix at that time. Hudson explained, however, that he stopped taking the phentermine pills and started taking ephedrine. He testified that on Mondays through Friday, his wife would ordinarily prepare his breakfast, pack his lunch, and hand him his diet supplements/appetite suppressants, vitamins and drinks as they both left the house.
Hudson stated that he had no idea what his wife was handing him because this was his daily routine. He said that he would not have noticed if his wife had given him phentermine rather than ephedrine. He stated that they tasted the same, and the capsules were "the same size [and] same color."
Sabina Hudson (Sabina), Hudson's wife, testified that, at the time of her husband's suspension, she had been taking a Brazilian diet supplement called "Emigrace Sim," which is also known as "Herbal Thin." Sabina had purchased this substance on the internet. Sabina stated that "Emigrace Sim" contained an active ingredient, fenproporex. She said that she did not have any more ephedrine and started taking her husband's phentermine caplets. She added that on the day of the drug screen, she may have mistakenly given Hudson the "Emigrace Sim" that she had been taking.
Robert Havier (Havier), Ph.D, a forensic toxicologist at the New Jersey State Toxicology Laboratory, testified that Hudson had tested positive for the "class amphetamine, meth amphetamine." He said that Hudson's ingestion of fenproporex would result in a positive test for amphetamine.
Havier explained that urine samples submitted to the Toxicology Laboratory are subjected to two screening tests. A positive result on the screening tests would be confirmed by a gas chromatography, mass spectrometry (GCMS) test. This test consists of "chemical treatment of the urine sample."
Havier said that ephedrine, which is used as a decongestant and as a dietary supplement, would produce a positive test result for amphetamines on the initial test. However, ephedrine would not test positive on the second screening test. He also said that phentermine would test positive for amphetamines on the first and second screening tests but would be eliminated on the confirmatory GCMS test. Havier further ...