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In re Debow

Superior Court of New Jersey, Appellate Division

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM.

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.[1] 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[2] 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 ...


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