July 5, 2013
IN THE MATTER OF DAVON DEBOW, ATLANTIC COUNTY, DEPARTMENT OF PUBLIC SAFETY.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013.
On appeal from the Civil Service Commission, Docket No. 2011-750.
Hankin, Sandman & Palladino, P.C., attorneys for appellant Davon Debow (Colin G. Bell, of counsel and on the brief).
Atlantic County Department of Law, attorneys for respondent County of Atlantic (Richard C. Andrien, Assistant County Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Lihotz and Ostrer.
Davon Debow appeals from the March 18, 2011 final administrative action of the Civil Service Commission (CSC), accepting and adopting the decision of the Administrative Law Judge (ALJ), pursuant to N.J.S.A. 52:14B-10(c). The CSC sustained Debow's removal as a corrections officer because the results of a urinalysis, conducted pursuant to the random drug testing policy of respondent County of Atlantic Department of Public Safety (the Department), revealed the presence of oxycodone and its metabolite, oxymorphone. Debow challenges the ALJ's decision as arbitrary and capricious, arguing the ALJ failed to properly consider evidence of the invalidity of the drug test based on an ambiguous, unexplained notation suggesting testing errors. Debow also argues the ALJ erred in excluding from evidence certain scholarly articles purportedly documenting the frequency of pharmacy error in filling prescriptions. We affirm.
These facts are taken from the administrative hearing. Debow was hired by the Department as a corrections officer in 2009. He worked approximately six to seven months before beginning formal training at the police academy in February 2010. During this initial period of employment, he passed three drug tests — one when he was hired, one prior to entering the academy, and one while attending the academy.
Around this time, Debow experienced significant dental issues and had one wisdom tooth extracted. The oral surgeon prescribed hydrocodone and an antibiotic. Months later, Debow met with a dentist at Mainland Dental Associates, complaining of continued pain. He was referred to an oral surgeon, Dr. Bradford Jungles, who recommended extraction of Debow's remaining three wisdom teeth and prescribed hydrocodone to manage the pain pending surgery. Debow's second oral surgery occurred on May 10, 2010. Following the extraction, Debow was given prescriptions for penicillin and hydrocodone-ibuprofen, the latter of which he was advised to take every four to six hours or as needed.
For two days following this surgery, Debow took the hydrocodone every four hours as prescribed, and, thereafter, when he experienced pain. He developed a spur on one of the surgical openings on the left side of his mouth, causing intermittent pain that was exacerbated by salty foods. Debow denies taking his pain medication before going to work because it made him "loopy, " and he thought it unsafe for him to be around inmates while impaired.
The Department's sick leave policy imposed a continuing duty for its officers to disclose any prescriptions for a controlled substance, stating:
Any officer who is prescribed a controlled substance from a licensed physician shall advise the Warden via confidential report immediately upon his/her return to duty. The confidential report shall include the type of medication and the expected duration of the prescription to include the amount of refills written for the prescription. A confidential report shall be filed for every new prescription. The confidential report need not describe the illness or reason for the prescription. Any officer receiving a prescription shall inquire as to its effect on his/her ability to safely perform their duties, and include in the confidential report that the physician has informed the officer the medication will or will not adversely [a]ffect his/her ability to safely perform their duties.
When he was first prescribed hydrocodone, Debow complied with this policy, and the Department's physician cleared him for work.
On June 15, 2010, Debow was selected to submit a random urine screen. The Department's drug screening policy embodied the Attorney General's Law Enforcement Drug Testing Policy. The policy required quarterly random testing of personnel chosen by computer. Noting the use of a controlled dangerous substance without a prescription is unlawful, N.J.S.A. 2C:35-10(a), the policy mandated that "[a]n employee who[se] drug test results [we]re positive for the presence of illegal drugs/substances shall: 1) be dismissed from the Department[.]"
Debow was summoned to the testing area by Lieutenant Steven Iuliucci, the Department's compliance unit coordinator who was responsible for administering the drug screening procedures at the adult detention facility. Iuliucci instructed Debow to complete two forms. The first was the "Drug Testing Medication Information" form, on which he was to list all medications taken during the previous fourteen days, and the second advised of the right to submit two samples, one of which would be sent to the New Jersey State Toxicology Laboratory (the laboratory) for testing, and the other retained in a controlled environment for use in the event an issue arose or additional testing became necessary. Debow revealed he had taken hydrocodone and penicillin two days earlier, as well as aspirin and Advil the previous day. Debow declined the option to have two samples taken.
Debow completed the identification information requested on the specimen bottle, drank water, and paced in the hallway, awaiting the need to void. Iuliucci stated Debow "seemed nervous" as he waited to perform the test. When he eventually felt urgency, Debow entered the bathroom alone. He exited with the urine specimen; however, the bottle's temperature gauge did not register. At the hearing, Debow explained he had washed off the exterior of the bottle out of courtesy, as it did not occur to him that doing so could interfere with the temperature gauge. At the time of the random screening, however, suspecting Debow may have tampered with the sample, Iuliucci gave him another bottle to provide a second sample. Debow drank more water and Iuliucci followed him into the bathroom, sitting six feet behind Debow as he urinated. Debow placed the cap on the bottle and went to the sink to rinse it before Iuliucci stopped him, explaining that rinsing the bottle could interfere with the temperature gauge. Iuliucci was then satisfied no intentional tampering had occurred with the first sample, but instead believed the temperature gauge was affected when the bottle was rinsed.
Iuliucci led Debow to the freezer, where he deposited his specimens. At the hearing, Iuliucci testified the first sample Debow provided remained securely refrigerated in the Department. Upon request, and over the Department's objection, Debow was permitted to seek expert inspection of, and testimony regarding, the sample. Iuliucci continued to explain the chain of custody with respect to the second sample, stating it was shipped to the laboratory after Iuliucci packed the specimen bottle into a FedEx envelope and sent the sample and requisite documentation to the laboratory for analysis. Iuliucci also completed and included the standard Law Enforcement Drug Testing Chain of Custody form, showing the transmittal of all of the randomly collected urine samples, including Debow's.
On or about July 20, 2010, the laboratory sent back a Toxicology Report revealing Debow's urine sample tested positive for oxycodone and oxymorphone, both controlled substances.
Following his receipt of Debow's positive test results, Iuliucci "attempted to see if . . . a different resolution[, ]" other than termination, was available. He conferred with Joseph Bondiskey, the Warden of the Atlantic County Justice Facility. The two supervisors seemed eager to find a legitimate basis for the positive test results in order to absolve Debow, who had never shown signs he was under the influence of substances while on duty. Debow's records were checked to determine whether he had valid prescriptions for these drugs. Iuliucci also consulted with the Department's physician regarding the similarities between hydrocodone, which Debow had revealed he was prescribed, and the two drugs for which he tested positive. The physician informed Iuliucci hydrocodone and oxycodone were different drugs, and once oxycodone is ingested, it breaks down in the body into its derivative, oxymorphone. Therefore, Debow's hydrocodone use could not explain the results of his drug test.
Iuliucci, accompanied by a sergeant, proceeded to interview Debow "to see if there was anything that he didn't put down on the medication form that he was taking." They informed Debow his laboratory results "came back suspicious[, ]" and asked whether he was taking any medications he forgot to list on the form. Debow produced his prescription bottles for hydrocodone and penicillin, and denied taking any other drugs. When Iuliucci inquired whether Debow could explain the positive test, Debow "may have commented to the effect of, 'My friend gave me, '" before Iuliucci "stopped him right there."
The following day, Debow reported to work and was brought to meet with Bondiskey. Debow was offered a Loudermill hearing, served with a Preliminary Notice of Disciplinary Action, and advised he was suspended without pay until the formal hearing on the charges. Bondiskey gave Debow the opportunity to present any evidence or information "which could alter the course of the discipline process" or "stop the immediate suspension pending removal." Bondiskey recalled:
The response from him at that point was that he -- it was stupid, it was a friend of his that because his tooth was hurting had given him some medication. I stopped him at that point, I told him that it was not a time for him -- I did not ask him to incriminate himself, I did not ask him to -- I was not interrogating him or interviewing him for the purpose of receiving any information that could support our case, I was asking him for any information which could, in effect, clear him or stop us from -- stop me from suspending him and terminating.
Debow was served with a Final Notice of Disciplinary Action, removing him from his position. He appealed his termination of employment, and the matter was transmitted to the Office of Administrative Law (OAL) as a contested case.
During the administrative hearing, the Department presented the testimony of Bondiskey and Iuliucci, who related the facts discussed. Debow testified next, followed by his girlfriend, Brooke L. Warner, and his grandparents, Lillian and Myrt Debow. On the final day of the hearing, the Department presented expert testimony from William Dunn, the Deputy Director and Deputy Chief Toxicologist of the New Jersey State Toxicology Laboratory, and Richard Saferstein, Ph.D., a forensic scientist specializing in the fields of toxicology and urinalysis.
Warner, Debow's girlfriend of approximately two years, explained she spent significant time with Debow several days each week and he often stayed the night. Warner recalled the time frame of Debow's dental surgeries, and testified she had never seen him use drugs, appear under the influence of drugs, or otherwise exhibit any behavioral patterns suggesting drug use.
Debow's maternal grandmother, Lillian Debow, stated he had lived with her and her husband Myrt since he was eight years old, due to her daughter's abuse of heroin. Lillian's experience with her drug-addicted daughter enabled her to recognize the signs of drug use. Lillian explained drug users' eyes are different, as are their actions and general demeanor, which become noticeably lethargic. Her daughter's history also made Lillian vigilant in watching for signs of drug use by Debow. Lillian stated her grandson was always involved in sports, and never engaged in substance abuse. Although she conceded he now spent a great deal of time outside her home, Lillian insisted Debow neither used drugs nor exhibited any strange or abnormal behavior. Further, she did not observe him take any pills except those he was prescribed after his dental surgeries.
Myrt Debow confirmed his wife's testimony regarding raising Debow and their efforts to educate him about the dangers posed by drug use. He too had never observed his grandson use or exhibit behavior suggesting he was under the influence of illicit drugs. Additionally, he addressed Debow's dental complications, noting he transported his grandson to the oral surgeon and, thereafter, to the pharmacy to fill his prescriptions. He testified he saw Debow take his prescribed medications and nothing else, other than perhaps a non-prescription medication.
Debow testified in his own defense. He discussed the disruption to his life caused by his mother's drug problem, recalling memories of her under the influence and her multiple attempts at rehabilitation. As a result, Debow asserted:
I've never used drugs. That was like the biggest thing, seeing my mom going in and out of rehab, you know, and just putting people around me that -- just a strong group of friends that don't use drugs, you know. . . . [I]f I found out a couple of my friends were doing drugs or something along that nature, I would definitely cut them out, you know. Like I don't want to surround myself with people like that, you know. I pride myself all grown up without . . . using drugs. Like, that was a big thing.
Debow stated he was completely baffled and caught off-guard when Iuliucci showed up and said he had failed the drug test. Debow denied he said anything about a "friend" or any other person who had possibly given him "something" resulting in the positive drug test. Rather, Debow testified: "I think maybe the only thing I might -- I could have said was, you know, if someone gave me something I wasn't supposed to take, but as far as I know, I definitely didn't take anything purposely or knowingly, you know. But words get mixed around and --." Exploring what he meant by "maybe somebody gave me something I wasn't supposed to take, " Debow stated: "Possibly the pharmacy mixe[d] up the drugs, the IV I got put in my arm when I went to sleep. I was trying to think of something, because there has to be a reason, you know. I know it just doesn't appear magically, you know, so."
Debow testified that to his knowledge, he had never taken oxycodone or any other drugs for which he did not have a prescription. When asked whether he knew how he tested positive for oxycodone, he stated, "I'm thinking maybe a mix up with the pharmacy, maybe IV. I still don't know." He was also unable to explain why he did not test positive for hydrocodone.
On cross-examination, Debow acknowledged this was the third time he had been prescribed hydrocodone, and, despite suggesting his prescription was mistakenly filled with oxycodone, conceded he noticed nothing unusual when he used the medication this time. Also, although he consumed all pills prescribed, he could not explain how frequently he took the medication, and thought he took the last pill "two or three days" before he was tested.
On the final day of the hearing, the Department presented its two expert witnesses. Dunn, a forensic toxicologist, testified telephonically as an expert in toxicology. Dunn supervised Chantle Markovitz, the chemist who had actually tested Debow's urine sample and whose testimony the Department was unable to procure.
Dunn discussed the laboratory's standard procedures, which involved the use of immunoassay to screen a sample for the presence of eight different classes of drugs, and then gas chromatography-mass spectrometry (GC-MS) to identify the specific substance(s). The laboratory tests for six opiates — codeine, morphine, oxycodone, oxymorphone, hydrocodone, and hydromorphone — and the administrative cutoff is 100 nanograms per milliliter (ng/ml). If a substance is found in a concentration exceeding the cutoff, it is reported as a positive test. Debow's urine was found to contain 155 ng/ml of oxycodone and 110 ng/ml of oxymorphone. Dunn opined, within a reasonable degree of scientific certainty, that Debow tested positive for oxycodone and its metabolite, oxymorphone, but not for hydrocodone.
On cross-examination, Debow's attorney questioned Dunn about notations contained in the laboratory testing results data report. Dunn was specifically asked to explain a statement appearing on the bottom of the "[s]ummary of [t]est [r]esults, " which said "Hydrolysis Controls Low – Incomplete TMOR PROF in Range (10-uoc7509)." Dunn explained the hydrolysis for morphine was incomplete because the molecule was "incompletely separated[, ]" but this affected "only the morphine itself" and was "not an issue for things like oxycodone and oxymorphone [that] are not really conjugated to any extent." When asked whether this was "an error in the test with respect to morphine, " he responded affirmatively.
A second series of questions centered on the Chain of Custody Report for the sample, which lists each laboratory person who handles the sample. A June 30, 2010 notation by Markovitz states "repeat op[ia]tes-STD VAL failed." Dunn responded to inquiries on this issue:
Q: Okay, where it says, "Repeat opiates STDVAL failed, " what does that mean?
[DUNN]: One of the values failed, I'm not sure, I'd have to talk to my analyst as to what her abbreviation is with the "STD" means. But that means we would repeat the analysis.
Q: And the failure there was with respect to the opiates test, correct?
A: It would only be for the opiates, yes.
Q: Okay. And you testified before that oxycodone and oxymorphone are opiates, correct?
A: Yes. I'm not sure which one failed on that one, I haven't . . . looked at that.
Q: And it doesn't show after that entry that the -- a time that the opiate test was repeated, does it?
A: No, but I'd have to go back and talk with my analyst was to what the failure meant. It may be only for the opiates -- excuse me, the morphine.
Q: But you don't know, correct?
A: That's correct.
On re-direct examination, inquiries regarding the notation issue continued:
Q: Okay. Now can you tell me whether or not this entry that you're looking at changes your opinion as to you saying that within a reasonable amount of scientific certainty you know that the person tested positive for oxycodone? Does that change your mind?
A: No, it doesn't.
Q: Why not?
A: We know what the standard for the [h]ydrolysis for the morphine failed and those would've been repeated.
A: And that the [h]ydrolysis -- since we're looking for everything all at once we don't know what's going to be positive, so if we don't have a compound that's -- if we have a compound that doesn't undergo -- then those values would not be affected by that procedure.
A: And I would allow that to be reported out.
In light of possible confusion, the ALJ also questioned Dunn:
Q: You lost me. I don't understand what this, "Repeat opiates, STD VAL failed, " means?
A: Again, I would have to find out what the analyst was referring to on this and I'd have to have her review it.
Q: Well, that really doesn't help me here.
A: I believe it means it's referring to the fact that the morphine -- did not pass.
Q: What did not pass?
A: But as --
Q: Hold on, the morphine? What was that word you used?
A: Okay. It's morphine 3, number 3, glucuronide . . . .
Q: What does that mean?
A: That [h]ydrolysis -- well, morphine can be in its removal from the body the body attaches a compound to it to make it easier for the kidney to basically get rid of it. And that compound is glucuronic acid, it's very common, the body does this to almost every compound that comes into it. And what we do since we don't look for the -- because by [GC-MS], we can't look for the glucuronic compounds, we have to cleave or break what is known as a glucuronide bond that basically -- we have to undo what the body has done to it. We have to take apart the morphine glucuronide and separate it into two compounds, the morphine and the glucuronic acid and then we would analyze for the morphine. Does that make sense or should I try again?
Q: Still not sure. What failed here?
A: We have -- in there we have 500 nanograms of morphine glucuronide . . . and it was supposed to come up when you cleave that, when you break it apart completely you should have about three hundred and fifty nanograms of free morphine. Okay? Now, since we only got back 152 nanograms and --
Q: Of what now?
A: Of morphine, and I'm referring -- on this I'm referring -- the number we were talking about, "Summary of tests, " do you see, "MASPEC opiates instrument number four?" I'm referring to page 1 of that two page part. I believe it's three or four pages back from where we are now on the 1C document.
Q: You have to put it in simple terms.
A: Okay. In simple terms, in all the compounds that we look for, codeine, morphine, hydrocodone, hydromorphone, oxycodone and oxymorphone, morphine is bound by -- is bound up in addition to being by itself which the body can do[, ] it also gets rid of it by having morphine -- cleaving morphine 3 glucuronide, that's another way that the body gets rid of it. To find out how much morphine in total there is because our cutoff is for total morphine of two thousand we have it undergo a reaction and it's called enzymatic [h]ydrolysis, okay, and what we do i[s] we put morphine in the urine as the 3 glucuronide strictly and then we break it down and to make sure we break it down completely we use only 3 morphine glucuronide as a control.
Now . . . when we finish hydrolyzing the urine we should get back from this 3 glucuronide approximately three hundred to three hundred fifty nanograms of free morphine. We didn't in this case. But this is only applicable to morphine. So if morphine was an issue in this case then the test would've gone back and been repeated.
Q: Why does it say, "Repeat opiates?" I think that's the key question here. It doesn't say, "morphine, " it says, "opiates?"
A: Again, I would have to talk with -- it's probably poorly worded but I would have to talk with my analyst, she may have put this in prior to my discussing this with her or one of the other directive level people.
A: For this I would have her repeat only --for this run I would have her only repeat the morphine.
Q: Why? It says, "Opiates?"
A: Right, again --
Q: How do you get morphine out of this notation? That's what isn't clear to me.
A: Exactly. But this one is considered our opiates run. Now, of the six compounds that we look for only the one, morphine, would be affected by this. So the analyst would --it's reasonable that the analyst would describe it in terms of the entire testing panel rather than the specific analyte within that testing panel.
Upon the conclusion of Dunn's testimony, Debow moved to strike the laboratory report and the portion of Dunn's testimony regarding the positive test results for oxycodone and oxymorphone. Debow maintained a failure in the opiates test was noted on the report, and Dunn could not otherwise explain the notation. The ALJ denied Debow's motion because although "that notion certainly raise[d] certain questions, " the issue went to the weight of Dunn's testimony and not its admissibility.
The final witness was Saferstein who had reviewed the records in the case, including the toxicology and drug confirmation reports, the State Toxicology Laboratory record, Debow's medication disclosure form, his prescription and dental records, and a list of dietary supplements Debow later claimed he was using at the time of the urine screen.
Having reviewed the laboratory report, Saferstein, who was involved in formulating the State testing program, "found that the protocol that was followed as indicated in the report that is the confirmation of [the presence of 155 ng/ml of oxycodone and 110 ng/ml of oxymorphone] by [GC-MS] yielded a positive result . . . which is specific to these substances and to no other."
Saferstein specifically addressed the substances Debow alleged he had taken prior to the June 2010 drug test, unequivocally refuting the possibility that any would yield positive readings for oxycodone or oxymorphone. He concluded oxycodone and oxymorphone were present in Debow's urine sample, and were "detected in the manner that made the findings specific to th[ose] substance[s] and no other substance." Further, Saferstein stated there was no sign of hydrocodone, which he explained was a "distinct[ly] different chemical species" than oxycodone and oxymorphone, and it is impossible for hydrocodone to metabolize into the other substances; therefore, Debow's alleged ingestion of hydrocodone could not result in a positive test for oxycodone or oxymorphone. Nor could penicillin, Advil, aspirin, the dietary supplements, or any combination of these drugs yield a positive test for either oxycodone or oxymorphone. Finally, Saferstein stated the drugs included in the anesthesia used in Debow's May 10, 2010 oral surgery could not yield a positive test for oxycodone or oxymorphone.
Saferstein concluded, with a reasonable degree of scientific certainty, that Debow had ingested oxycodone within seventy-two hours of the sampling of his urine. Because oxycodone can be metabolized into oxymorphone, the presence of oxymorphone could have resulted directly from the intake of oxymorphone, or indirectly through the metabolism of oxycodone to oxymorphone.
On cross-examination, Saferstein acknowledged receipt of three scientific journal articles Debow forwarded to him regarding "pharmacy error." Although Saferstein had reviewed the articles, he testified they did not change his opinion and suggested the material was not within his area of expertise. This prompted the Department to object to the introduction of the articles. The ALJ agreed:
You don't have an expert, you just attempted to make Dr. Saferstein your expert . . . but he has said that this isn't his field of expertise. So, . . . if I allow these into evidence what you're really saying is, "Here Judge, you read them and you figure it out, " and I have less expertise than Dr. Saferstein. . . . [W]hat you're putting forth is speculative. You have no factual foundation to back it up, I haven't heard any testimony that on such and such a date he was given a pill or he found out something was slipped in his coffee or anything that would allow this theory to come in. I know what you're trying to do and I know without an expert you[r] hands are tied but I can't accept these into evidence. There is nothing in the record that establishes what they are and you can't just ask me to read them and say, "Here, figure this out, Judge." I have to have somebody tell me what they are.
The ALJ issued an Initial Decision within a week, upholding the Department's termination of Debow's employment and concluding:
The proofs in this case establish that [Debow] tested positive for oxycodone. Some of the oxycodone may have metabolized into oxymorphone, but the facts show that oxycodone was present in [Debow]'s urine on the date of the random test. The testimony of Dr. Saferstein establishes that the hydrocodone [Debow] ingested prior to the drug test could not have produced a positive result for oxycodone. Nor could any of the other medicines, dietary supplements, or anesthesia drugs have produced such a result.
[Debow]'s primary defense is that he took prescribed hydrocodone three days prior to the random test. He duly reported that prescription on the information form he filed at the time of the test. [Debow] was able to present no explanation for why he tested positive for oxycodone rather than hydrocodone. He suggested that perhaps the pharmacy made an error and filled his prescription for hydrocodone, but he offered no proof to support such a thesis. In the end, [Debow] admitted he did not know how oxycodone could have been in his urine.
When initially interviewed by Lt. Iuliucci, [Debow] began to state that perhaps someone had given him a pill. That statement may contain the real truth, but [Debow] did not offer such testimony at the time of hearing. Accordingly, the presence of oxycodone in his urine remains a mystery.
What is not a mystery is the state of the law. The County policy specifically states that a positive drug test revealing the presence of illegal drugs/substances requires dismissal from the [D]epartment. Unless properly prescribed, oxycodone is an illegal drug. Accordingly, the results of the urinalysis require a finding that [Debow] has violated the County policy.
It must be noted that the testimony of [Debow] and his grandparents was credible and believable. Given his mother's history of drug abuse, and the manner in which he was raised by his grandparents, it is unlikely that he would have engaged in drug use. His use of painkillers to combat the effects of oral surgery, if appropriate, would provide a logical reason why drugs were in his system, were it not for the definitive testimony of Dr. Saferstein that oxycodone and hydrocodone are distinctly different drugs that produce specific results when detected through the urinalysis process.
I also note that, in his testimony, Warden Bondiskey indicated a reluctance to terminate[Debow]. The inference to be drawn is that the warden believed [Debow] to be a good officer. But the warden stated that he had no choice, given the policy.
This tribunal finds itself in a similar circumstance. Despite the positive credibility finding, the fact remains that [Debow] tested positive for oxycodone and had no prescription for that drug. The policy regarding that set of facts is specific: [Debow]'s employment must be terminated.
The CSC accepted and adopted the ALJ's findings of fact and conclusions of law, affirming the Department's action. See N.J.S.A. 52:14B-10(c). Debow appealed.
Our review of a final administrative agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citations omitted). A "'strong presumption of reasonableness attaches to the actions of the administrative agencies.'" In re Carroll, 339 N.J.Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J.Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001).
We afford deference to such a determination unless our review reveals it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of legislative policy. In re Taylor, 158 N.J. 644, 656-57 (1999); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); In re Juvenile Det. Officer Union Cnty., 364 N.J.Super. 608, 614 (App. Div. 2003). Deference is particularly appropriate when the agency has adopted the findings of the ALJ because the ALJ, and not the agency, has the opportunity to hear "live testimony" and "judge the witnesses' credibility." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988). We do not independently assess the evidence. Id. at 588. Rather, "considering 'the proofs as a whole, '" and giving due regard to the opportunity of the ALJ to judge the credibility of the witnesses, we determine only whether the agency's findings could reasonably have been reached on sufficient credible evidence found in the record. Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
Certainly, however, we do not merely rubber-stamp the agency's decision, id. at 657 (citation omitted), and a manifestly erroneous determination must be set aside, L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995) (citation omitted). Moreover, we are not bound by an agency's interpretation of a statute or resolution of a question of law. Taylor, supra, 158 N.J. at 658. See also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Our review of legal issues is de novo. Mayflower Sec. Co., supra, 64 N.J. at 93.
Debow challenges the factual findings made by the ALJ and accepted and relied upon by the CSC. He identifies three undisputed facts in the record — the drug testing report contained the notation "repeat opiates-STD VAL failed, " for which Dunn testified he could not be entirely sure of its meaning, no opiates test was reported as repeated, and hydrocodone, oxycodone, and oxymorphone are all opiates. Debow argues "the ALJ [e]rroneously [c]oncluded that the [d]rug [t]esting [e]rrors were [l]imited to the [t]est for [m]orphine" and the reported test results were reliable. We are not persuaded, as the record contains sufficient evidence which, when combined with the ALJ's credibility determinations, supports the finding that the test results were reliable.
On this record, although Dunn was not absolutely certain the challenged June 30, 2010 notation on the "Chain of Custody Report" addressed testing for morphine, he was confident, based upon the entire report, that the notation did not alter or undermine the results of the test completed on July 9, 2010, which revealed Debow had oxycodone and oxymorphone in his system in excess of the allowable limits. Dunn concluded the glitch in the testing occurred during hydrolysis, which is only used to detect the concentration of morphine in the sample. The ALJ specifically sought clarification on this point, asking Dunn why the Chain of Custody Report notation said "repeat opiates, " rather than "repeat morphine." Dunn stated it was "probably poorly worded, " and explained the "incomplete hydrolysis" notation, affecting only the morphine results, occurred during the GC-MS for opiates; that is, the "repeat opiates-STD VAL failed" notation referred to the error in hydrolyzing the morphine. Dunn concluded "it's reasonable that the analyst would describe it in terms of the entire testing panel rather than the specific analyte within that testing panel."
We also note, the error notation on the Chain of Custody Report is not repeated on the forms recording the actual completed test results, which served as the foundation for Saferstein's accepted expert testimony. Contrary to Debow's suggestion, the Chain of Custody Report is designed to document who used or otherwise handled the sample on any given date, and it does not detail any aspect of the actual testing process or results. The Chain of Custody Report reflects use of Debow's sample on July 9, the date testing actually occurred. Those test results recorded concentration levels for oxycodone and oxymorphone, which are listed on various lines on the testing results report, and are unaccompanied by any error notation. The testing confirmed clear readings for all of the tests except morphine. Therefore, the ALJ's finding that no issue compromised the integrity of the oxycodone and oxymorphone testing process is supported by and consistent with a review of the entire testing report, and supported by Dunn's explanation and Saferstein's testimony.
We further note Debow failed to rebut the uncontroverted testing results, as he did not introduce any expert testimony supporting his theory of pharmacy error or other chemical interaction. The record includes only Debow's recitation of such possibilities, which is rank speculation. Moreover, notwithstanding the ALJ's permission to access and test the first urine sample, which remained securely stored in the Department's facility, the record contains no indication whether Debow exercised this opportunity.
The Department presented evidence to support Debow's termination based on unlawful drug use. The record contains no countervailing evidence discrediting those proofs.
We turn to Debow's suggestion of inconsistencies between the ALJ's credibility findings and his conclusion. Debow and his grandparents were found "credible and believable, " such that "it [wa]s unlikely that [Debow] would have engaged in drug use." Certainly, the proffered testimony established Debow was not a drug abuser and held an aversion to illicit drug use. However, other evidence showed, and the ALJ found, Debow used "painkillers to combat the effects of oral surgery, " including pain in "the left side of his mouth, where there remained an open wound for a protracted period of time."
Finally, Debow offered no factual basis to explain the positive drug test results. Debow could not recall definitively when he took his last hydrocodone pill. Similarly, his recollection of how often he utilized his medication was vague and, at times, inconsistent. Accepting Debow's statements that he used a pill at night starting two days after surgery, the Department suggests he would have exhausted his supply of medication long before the June 15, 2010 drug test, a scenario consistent with the omission of hydrocodone from Debow's urine sample.
The ALJ also credited "the definitive testimony" of Saferstein, who stated "oxycodone and hydrocodone are distinctly different drugs that produce specific results when detected through the urinalysis process." Debow acknowledged his familiarity with hydrocodone, having taken it several times. No one suggested confusion between hydrocodone and oxycodone based on, for example, the similar shape, size, or color of the pills.Finally, the possibility of a false positive was fully refuted by Saferstein. Frankly, there is no evidence supporting a possible pharmacy mix-up.
In weighing all credited testimony and evidence, the ALJ concluded the test results were reliable. Despite the sincerity of Debow's expressed repulsion for drug use, the fact remains the test results confirmed he utilized oxycodone, which metabolized to oxymorphone, during the time of his dental distress.
Debow also claims legal error resulted from the ALJ's failure to strike Dunn's testimony, and from excluding the three scholarly journal articles discussing hospital studies that revealed medication errors. We conclude these arguments lack sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(1)(E). We add these brief comments.
Debow failed to lay a foundation for the admission of these articles, N.J.R.E. 901, and, more important, offered no nexus between the studies discussed and his pharmacy's past mis-filled prescriptions, if any. None of the witnesses had expertise or even basic knowledge of the nature and extent of pharmacy error in filling prescriptions. The ALJ properly excluded these documents from evidence.
No mistaken exercise of discretion occurred in admitting Dunn's testimony, including the introduction of the State Laboratory drug testing report. The ALJ also clearly understood his need to assign weight to Dunn's opinion, which was challenged on cross-examination.
Debow further contends the ALJ mistakenly allocated the burden of proving pharmacy error to him, rather than the Department. The argument is unfounded.
N.J.A.C. 4A:2-1.4(a) provides: "In appeals concerning major disciplinary actions, . . . the burden of proof shall be on the appointing authority." As we noted, the Department's burden was to prove, by a preponderance of the evidence, that Debow tested positive for illicit substances so as to warrant dismissal under its drug policy. The Department also would have had to rebut evidence of pharmacy error, or address the possibility of inadvertent ingestion, had such evidence been presented. Here, no evidence was presented to challenge the drug testing results and the Department's expert testimony. The Department is not required to refute speculation or unsupported possibility.
Finally, we also reject as baseless Debow's claim of "mistake of fact" as a defense to illegal conduct. As we have noted, the question of whether involuntary or unintentional use of illegal drugs constitutes a violation of law enforcement drug testing policies need not be addressed because no evidence was presented on this issue.