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In re Rivera

Superior Court of New Jersey, Appellate Division

August 22, 2013

IN THE MATTER OF JOSE RIVERA, CITY OF CAMDEN POLICE DEPARTMENT.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2013

On appeal from the Civil Service Commission, Docket No. 2009-4100.

William H. Buckman Law Firm, attorneys for appellant (Surinder K. Aaggarwal, on the brief).

Caryl M. Amana, Special Counsel for City of Camden, attorney for respondent City of Camden.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, statement in lieu of brief).

Before Judges Graves and Espinosa.

PER CURIAM

Jose Rivera, a former sergeant with the City of Camden Police Department, appeals from a final agency decision of the Civil Service Commission (the Commission) dated May 18, 2011, terminating his employment. We affirm.

On November 14, 2008, while employed by the Camden Police Department, Rivera submitted a urine analysis for a random police drug test, in accordance with Attorney General's Law Enforcement Drug Testing Policy. As part of the drug testing process, Rivera completed a drug testing medication information form in which he listed the prescription and non-prescription medication that he had taken in the last thirty days:

A. During the past 30 days I have taken the following medication prescribed by a physician:

Name of Medication

Prescribing Physician

Date Last Taken

1

Appetite Suppressant

(diet medicine)

Daily

2

Increase medicine

(diet Metabolism)

Daily

B. During the past 30 days, I have taken the following non-prescription medication (cough medicine, cold tablets, aspirin, diet medication, nutritional supplements, etc.)

Non-Prescription Medication

Date Last Taken

1

Nexium

Occasional

The toxicology report dated February 2, 2009, stated that Rivera's urine sample was positive for amphetamine, a controlled dangerous substance. The report also noted that amphetamine was not listed on the medication form Rivera provided with his sample.

A preliminary notice of disciplinary action was issued to Rivera on February 10, 2009, charging him with a violation of Chapter 3, Rule 3.1.19 of the Rules and Regulations of the Camden Police Department, Disciplinary Code (the Code), which states "a member shall not use any narcotic, hallucinatory, stimulating or dangerous drug while on duty or off duty, unless prescribed by a physician for illness"; and a violation of Chapter 8, Rule 8.1.6(k) of the Code, "conduct unbecoming an employee in the public service." The preliminary notice specified:

On November 14, 2008, Camden Police Sergeant Jose Rivera #648, a twenty-year veteran of the department, while assigned to central, did submit a urine specimen, based upon mandatory random police drug testing, ordered by the Camden County Prosecutor's Office, which subsequently proved positive for amphetamine. The egregious conduct of Sergeant Jose Rivera clearly indicates an absence of discipline and good judgment, which negatively reflects upon all members of the Camden City Police Department and severely compromises the public's trust in law enforcement.

Rivera was suspended without pay effective February 10, 2009. A subsequent laboratory report dated March 17, 2009, identified Fenproporex, a controlled dangerous substance, and Fluoxetine, a prescription drug, in the sample.

In a report dated June 30, 2009, Dr. Pieter Cohen stated that Rivera used "compound diet pills from Brazil" from July or August 2008 through November 2008, and his weight went from 250 pounds to 220 pounds. The doctor also stated, "There's a misunderstanding about the benign nature of these pills in the Brazilian community and people share them readily and pass them along because they do lead to weight loss. Neither his wife nor [Rivera] would have known there was an amphetamine in these pills, and were very surprised by the urine tox screen result." In a letter dated November 23, 2009, Dr. Cohen explained that "Fenproporex is a prescription medication in Brazil but not available in the U.S." and "[w]hen consumed, some Fenproporex is converted to amphetamine which leads to the positive urine test."

A final notice of disciplinary action was issued on July 9, 2009. The final notice stated the charges were sustained and Rivera was removed from his position with the police department effective that same day. Rivera appealed the decision and the matter was transferred to the Office of Administrative Law (OAL) for a hearing.

The parties agreed the matter would be decided on the papers, and they submitted the following joint stipulation of facts to the Administrative Law Judge (ALJ):

1. Jose Rivera was, at all relevant times, a sergeant in the Camden Police Department.
2. On November 25, 2008, in accordance with General Order 2001-007, created pursuant to Attorney General's Law Enforcement Drug Testing Policy, Sergeant Rivera was ordered to participate in a random drug test.
3. Prior to submitting to said test, Sergeant Rivera filled-out a Drug Testing Medication Information sheet in which he listed the prescription and non-prescription medication he had taken in the last thirty (30) days.
4. In the aforesaid Information sheet, Sergeant Rivera listed a tablet intended to suppress one's appetite and another tablet intended to increase metabolism as the prescribed medications he was taking. The Sergeant did not enter the name(s) of the prescribing physician(s). In the non-prescription medication category, the Sergeant entered the prescription drug "Nexium." Sergeant Rivera produced the two (2) capsules he was taking for appetite suppression and increased metabolism.
5. The urine sample was properly collected, cataloged, and transported to the New Jersey State Toxicology Laboratory in Newark, N.J. by Sergeant Mario Ortiz of the Internal Affairs Unit of the Camden Police Department.
6. The analysis of Sergeant Rivera's urine was properly performed and a report was generated on February 2, 2009.
7. Sergeant Rivera's urine was positive for amphetamine.
8. On March 4, 2009, Sergeant Mario Ortiz, Internal Affairs, delivered the two (2) capsules, that Sergeant Rivera claimed he had taken for appetite suppression and increased metabolism, to the Office of Forensic Sciences – Division of State Police for analysis for "possible narcotics."
9. In a Certified Laboratory Report, dated March 17, 2009, revealed that a Fenproporex, a Schedule IV drug on the N.J. Controlled Dangerous Substance Schedule (N.J.S.A. 2C:35-1, et seq.) was present in one of the capsules. The second capsule contained the prescription medication, Prozac.
10. The forensic scientist of the N.J. State Police and medical experts for Sergeant Rivera agree that Fenproporex is a prescription medication that is not available in the United States. It is a weight loss medication that is found in several places in the world, including Brazil. There is no dispute among the experts that Fenproporex metabolized in the body into amphetamine.
11. Through his counsel at the departmental "Loudermill" hearing and also in the history given to his experts, Sergeant Rivera acknowledged taking the Brazilian diet pills from June or July 2009, until November 2009.
12. Sergeant Rivera, through counsel, denied having any knowledge that the diet pills contain[ed] a Controlled Dangerous Substance.

In a written decision dated January 18, 2011, the ALJ determined that Rivera was guilty of the charges by a preponderance of the evidence and that his removal was justified:

In his defense, appellant maintains that the positive test result was due to his taking of a Brazilian diet pill, not sold in the United States, which does not contain amphetamine but rather contains a non-banned substance, Fenproporex, which metabolizes in the body into amphetamine.
While the parties have stipulated that a capsule provided by appellant in concert with his drug test did contain Fenproporex, and that Fenproporex can produce a positive test for amphetamine, there was no stipulation of fact that the positive test was caused by this capsule. Although the parties agreed that appellant offered, through counsel, during his "Loudermill" hearing and to his experts that he had taken the Brazilian diet pills, the parties did not agree that he had been taking the pills nor that they were the cause of the positive test. No sworn testimony was offered to this fact nor was a certification of such attached to appellant's brief.
This essentially reduces appellant's argument to an assertion that a pill in appellant's possession, which he identified as a prescription medication (though no proof of prescription for the Brazilian diet pill was offered) and admitted to ingesting in what amounts to a hearsay situation outside of the OAL proceedings, contains a substance which will produce a positive test result for amphetamine. This constitutes little more than offering an unsubstantiated hypothetical situation that something other than illegal drug use could possibly, if true, be the cause of the positive drug test, and is insufficient to overcome the result of the test.

Following a de novo review, the Commission adopted the ALJ's findings and conclusions, and determined "the action of the appointing authority in removing [Rivera] was justified." On appeal, Rivera argues the Commission's decision should be reversed because the City failed to show by a preponderance of the evidence that the positive drug test was caused by "illegal drug use, " or anything other than "ingestion of a diet capsule." Alternatively, Rivera argues that if we find that an offense occurred, "the penalty imposed is disproportionate to the evidence submitted."

"Courts have only a limited role to play in reviewing the actions of other branches of government. In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). In determining whether an agency action is arbitrary, capricious, or unreasonable, we consider: (1) whether the agency followed the law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether the agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011) (citing In re Carter, 191 N.J. 474, 486 (2007)).

When reviewing agency actions, we "must defer to an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Therefore, if substantial credible evidence supports an agency's conclusion, we may not substitute our own judgment for the agency's even though we may have reached a different result. Ibid. This deferential standard also applies to our review of disciplinary sanctions. Stallworth, supra, 208 N.J. at 194.

The test for reviewing an administrative sanction is "whether such punishment is 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Polk License Revocation, 90 N.J. 550, 578 (1982) (quoting Pell v. Bd. of Educ., 313 N.E.2d 321, 327 (1974)). "[C]ourts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486 (citing In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006)).

Guided by these principles, we conclude there is no basis to intervene. There is sufficient credible evidence in the record to support the ALJ's findings and conclusions which were accepted by the Commission and the penalty imposed is appropriate in light of Rivera's misconduct.

Affirmed


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