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In the Matter of Michael Picariello

July 9, 2012

IN THE MATTER OF MICHAEL PICARIELLO, COUNTY OF HUDSON.


On appeal from the New Jersey Civil Service Commission, Docket No. CSC-2009-496.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 17, 2012 --

Before Judges Fisher and Carchman.

Appellant Michael Picariello, a Sergeant employed by respondent County of Hudson Corrections Department (respondent), appeals from the final decision of the Civil Service Commission (CSC), affirming his removal from office after the results of a urinalysis, conducted pursuant to respondent's random drug testing policy, indicated the presence of a cocaine metabolite. Appellant challenges his removal, asserting that the Administrative Law Judge (ALJ) erred in finding the drug test results to be accurate. In addition, among other issues, appellant claims respondent violated Attorney General of New Jersey, Revised Law Enforcement Drug Screening Guidelines (Oct. 22, 1986), and failed to maintain the chain of custody with respect to appellant's split sample. Appellant asserts that these violations constituted a deprivation of his due process as well as Fourth Amendment rights. We reject appellant's arguments and affirm.

These are the relevant facts. Appellant began his employment with the Corrections Department in 1990 and in 1995 was promoted to Sergeant. During his employment, appellant submitted to random drug testing several times without incident.

On May 31, 2006, appellant was selected for random drug testing. He provided two urine samples: one to be tested by the State Toxicology Laboratory, the other to be retained by respondent in the event that appellant later challenged the results of the first urinalysis. Investigator Edward Ryan of respondent's Internal Affairs Division (IAD) administered the urine test to appellant. Investigator Ryan was certified to administer drugs tests and had conducted more than ten individual random drug tests of officers for respondent. Investigator Ryan provided each officer, including appellant, with a copy of the Guidelines, which included a separate acknowledgment that each officer executed. Each officer also received a packet of information to review, which included a Medical Information Form and a document outlining testing procedures, penalties for refusing the exam and punishment for a positive result. Investigator Ryan witnessed appellant as the latter signed the Drug Screening Advisory, which informed appellant that he was selected to be tested, as well as each paragraph of the Urine Specimen Acquisition Check List. Each officer signed the Medication Information Form, which instructed the officers to list any prescription or over-the-counter medication they had consumed within the previous fourteen days. Appellant inquired of Investigator Ryan whether he should list any expired medications he might have taken; Investigator Ryan responded that he believed taking expired medication was a violation of the Guidelines. Appellant indicated on the form that he had ingested nutritional supplements/multi-vitamins and Tylenol P.M. during the relevant time period.

After completing the forms, appellant provided his urine specimen to Investigator Ryan on May 31, 2006, at 12:50 p.m. On the "Urine Sample Chain of Custody Log Form," Investigator Ryan included appellant's social security number and indicated that one of appellant's samples was marked "Laboratory" and would be stored in the refrigerator until it was transported to the State Toxicology Laboratory. The split sample was marked "frozen" and was stored in a freezer in a locked room.

On June 1, 2006, Investigator Ryan provided the samples to a laboratory technician from the State Toxicology Laboratory. Investigator Ryan indicated that the test basis was "Officer Random," and he recorded the date when the temperature was taken for each sample. Investigator Ryan filled out the Law Enforcement Drug Testing Chain of Custody Form provided by the State Toxicology Laboratory and transferred twenty-two samples; however, a memo titled Acknowledgment by Submitting Agency that was dated June 1, 2006 and signed by Investigator Ryan stated that only eighteen samples were submitted. Absent from the form was documentation of the dates and times when the samples were removed and of the identities of the people who had transported the samples. The samples were identified by the social security numbers listed on the form.

Chantle Marakovitz, a technician at the State Toxicology Laboratory, reviewed the samples, verifying social security numbers, Medication Information Forms and the recorded temperatures. The technician time-stamped the documents and marked "accepted" next to each sample.

Dr. Robert Havier, the supervising forensic toxicologist at the State Toxicology Laboratory, reviewed the test results for appellant's sample and signed the Final Report. Havier described the standard procedures at the Laboratory: once a specimen arrives, it is assigned a case number; two tests are conducted on the urine sample, the first of which screens a portion of the urine for the presence of eight different classes of drugs. The second test is a Gas Chromatograph Mass Spectrometer test (GC/MS), which identifies the specific substance(s) present in the specimen and the concentration of each substance. A positive test result is reviewed to determine if any substances listed on the Medical Information Form could have caused the positive result.

Appellant's sample underwent the screening test on July 5, 2006 and tested positive for drugs. Because appellant's sample tested positive during the initial screening, it was subjected to the GC/MS test. After an initial extraction of appellant's sample underwent analysis, it was determined that the machine was not calibrated properly, and appellant's sample was re-extracted for further testing.

The second extraction tested positive for benzoylecgonine, a metabolite of cocaine. The concentration of benzoylecgonine in appellant's sample appeared to be 92,000. This value was extraordinarily high, nearly one hundred times above the machine's upper limit for producing accurate readings. Upon reviewing the testing record during the hearing, Havier discovered an error in the technician's dilution, indicating that she had diluted the sample to a ratio of one part sample to seven parts dilutant, rather than the required ratio of one to nine. While the dilution error explained the high concentration in part, Havier opined that even if the technician had properly diluted the sample, the cocaine metabolite test result would still have been extraordinarily high.

On July 26, 2006, respondent received notification that appellant's sample tested positive for cocaine. On July 27, 2006, appellant was advised of the results, and he was served with a Preliminary Notice of Disciplinary Action (PNDA) charging appellant with the following violations of the New Jersey Administrative Code: Incompetency, inefficiency or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); Insubordination, N.J.A.C. 4A:2-2.3(a)(2); Inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); Conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); Neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and Other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11).

On August 1, 2006, respondent conducted a Loudermill*fn1

hearing.

During the pendency of the disciplinary charges, appellant requested that his split sample be tested. Initially, his counsel requested that the split sample be sent via UPS to a laboratory in Pennsylvania, but then-Internal Affairs Captain David Krusznis informed appellant's counsel that, pursuant to the Guidelines, the specimen had to be tested at a laboratory licensed in New Jersey. In March 2008, almost two years after the initial testing, a courier from Quest Diagnostics collected appellant's split sample from Ariestides Lambos, a Sergeant in respondent's IAD. Sergeant Lambos modified a form the courier provided him to reflect that the sample was not new. He also filled out an Internal Affairs evidence record form, and the courier signed a receipt for the split sample. Appellant was subsequently notified that Quest Diagnostics would not test the split sample because there was a problem with the chain of custody.

Following a departmental hearing, respondent issued a Final Notice of Disciplinary Action (FNDA) on July 16, 2008, sustaining all of the charges contained in the PNDA and upholding the disciplinary penalty of removal, effective that same day.

Appellant appealed to the Merit System Board (now the CSC). The appeal was transferred to the Office of Administrative Law (OAL) on December 5, 2008. The ALJ issued an Initial Decision sustaining respondent's charges and ordering appellant's removal.

The CSC issued its Final Decision, accepting and adopting the ALJ's Initial Decision and upholding appellant's ...


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