December 23, 2013
IN THE MATTER OF CHRISTOPHER ANGELINI, CITY OF TRENTON, POLICE DEPARTMENT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2013
On appeal from the Civil Service Commission, CSC Docket No. 2011-4971.
Mark W. Catanzaro argued the cause for appellant Christopher Angelini.
David J. Sprong argued the cause for respondent City of Trenton Police Department (Becker Meisel L.L.C., attorneys; Wesley Bridges, of counsel; Mr. Sprong and Michael A. Oxman, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
Before Judges Messano and Hayden.
The City of Trenton (the City) charged one of its police officers, Christopher Angelini, with two counts of conduct unbecoming a public employee, N.J.A.C. 4A:2-2(a)(6), and a single count of official misconduct, N.J.S.A. 40A:14-147. The specifications supporting the charges alleged that, as part of a random drug test, Angelini supplied a urine sample that tested positive for methadone, and he failed to list all prescription and non-prescription medications on the department's testing information form. After a Loudermill hearing, Angelini was suspended without pay. Following a formal disciplinary hearing, Angelini was found guilty of all charges and was removed from his position. He appealed to the Civil Service Commission (CSC), and the matter was referred to the Office of Administrative Law as a contested case.
A hearing took place before an administrative law judge (ALJ), who issued an initial decision sustaining the charges and affirming Angelini's removal. In a final decision issued September 5, 2012, after accepting the findings of fact and conclusions of law in the ALJ's initial decision, the CSC determined that the City's action "in removing [Angelini] was justified[, ]" and it dismissed his appeal. This appeal ensued.
Before us, Angelini argues the CSC's decision was arbitrary, capricious and unreasonable. The contention is premised upon the City's alleged failure to present any competent evidence establishing that the urine sample was actually provided by Angelini. In this last respect, Angelini argues that the ALJ, and the CSC in turn, erred in considering "the law as to the . . . chain of custody" of the sample. Lastly, Angelini contends that if we reverse the agency's decision, he is entitled to back pay pursuant to N.J.A.C. 4A:2-2.10.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We briefly recite some of the evidence adduced at the hearing, much of which was specifically referenced in the ALJ's initial decision.
Detective Manuel Montez of the Trenton Police Department Internal Affairs Division (IAD) testified that in July 2010, Angelini was randomly selected through a computerized process for drug testing. Montez was present for the selection process, as was a representative of the PBA, in accordance with the Attorney General's Law Enforcement Drug Testing Policy (the AG's policy).
However, Montez was not present when Angelini actually submitted his sample. He testified that in the usual course and pursuant to the AG's policy, the individual officer would seal the sample and give it to the "monitor." On July 15, 2010, the monitor was Detective Luis Medina, who had since passed away. Montez testified that if a monitor received any sample that appeared to have been tampered with, he was to "disregard the sample." Samples were stored in a freezer in the IAD under lock and key, and only five IAD officers had access. Thereafter, Medina would transport the samples the next day to the State Toxicology Lab (Lab).
Montez identified a "Law Enforcement Drug Testing (LEDT) — Chain of Custody" form signed by Medina. It indicated that Medina was the monitor for a sample, identified with Angelini's social security number and collected on July 15, which Medina delivered to the Lab on July 16. The form also indicated that the sample was accepted by Lab personnel.
On September 16, 2010, Montez received the Lab results indicating that the sample bearing Angelini's social security number tested positive for Methadone and Methadone metabolite, as well as Oxycodone and Oxymorphone. Montez immediately contacted Angelini and advised him of the positive results. When asked for a possible explanation, Angelini indicated that he came into contact with raw heroin during the execution of a search warrant. However, Montez stated that if that had occurred, Angelini failed to follow departmental procedures requiring an officer to contact his supervisor and seek medical treatment. Based upon his experience, Montez did not believe such contact would cause a positive urine test for the presence of methadone. Montez also testified that Angelini never raised any issue regarding the seal on the sample he provided.
Montez explained that officers had the option to submit a "split sample, " that is, a second sample taken at the same time. In this case, Angelini supplied a split sample and, in July 2011, Angelini requested that it be tested. Montez observed the split sample before it left the police department and was given to a courier from an independent laboratory, Quest Diagnostics (Quest). Montez testified there was no problem with the seal. Quest subsequently furnished a report of its analysis of the split sample; it was positive for methadone.
Detective Timothy Thomas was the lieutenant in command of the IAD when Angelini provided his sample in July 2010. After receiving the positive Lab results, Thomas reviewed the departmental form completed by Angelini before collection of the urine samples. Angelini listed Oxycodone as one of his prescription medications. Thomas requested that Angelini supply doctor's notes regarding the prescription medications, which he did as to most. He also gave Thomas bottles of prescription medications, including Oxycodone. However, Angelini supplied no doctor's note or prescription for methadone.
Thomas contacted the Attorney General's Office to determine if any of the medications would have caused a positive result for methadone and was advised they would not. Thomas also reviewed the report of an expert retained by Angelini, Steven Klein, D.O. Klein stated that Angelini claimed to use Nyquil on a nightly basis to help him sleep, and Klein opined that regular use of Nyquil "mimics the presence of methadone." Klein reported that Angelini's urine sample taken in November 2010 was negative. Thomas testified that Nyquil was listed on neither the medication form Angelini completed before the test nor a handwritten list of medications Angelini supplied to Thomas after the positive results were received.
Thomas also testified that he spoke to Medina before his death. Medina stated that, when randomly chosen in July 2010 to provide a urine sample, Angelini became upset and insisted on speaking to his PBA president before providing the sample.
William Dunn was the deputy director of the State Toxicology Lab with over thirty years of experience. He reviewed the medication form completed by Angelini before submitting his sample, as well as all the information provided by Angelini's doctors regarding his medications. Dunn concluded that none of those medications would have produced a positive result for methadone or methadone metabolite. Dunn disagreed with Klein's opinion that frequent use of Nyquil "mimics" the presence of methadone. Moreover, Dunn explained that additional testing at the Lab using more sensitive gas chromatography/mass spectrometry (GMAS) confirmed the presence of methadone in the sample.
Dunn did not personally receive Angelini's purported specimen, test it or prepare the initial report. However, he reviewed the test results and prepared the final report. Dunn stated that when samples are received at the Lab, they are sealed with a plastic top that must be cut off with a sharp blade, or else the container itself must be broken. Each container includes a "piece of paper, the I.D. number, the date and . . . who collected it, . . . and a social security number is written in pencil . . . and . . . placed inside the container itself." Dunn was unaware of anything suggesting that the sample in this case was tampered with. Angelini did not testify or call any witnesses.
In his initial decision, the ALJ recited much of the above, noting the lack of any testimony "as to how the specimen was collected, sealed or stored." However, he noted that both Montez and Dunn testified there was no evidence of tampering with the sample. The ALJ also took note of the chain of custody form, which included Angelini's social security number for the specimen.
Citing our decision in In re Lalama, 343 N.J.Super. 560, 566 (App. Div. 2001), and N.J.S.A. 52:14B-10(a), the ALJ noted that in order to prove the chain of custody of the urine sample, the City needed "only . . . to show 'a reasonable probability' that the integrity of the sample has been maintained, because a relaxed standard of admissibility of evidence applies in administrative proceedings." He further stated, "Reasonable probability does not require proof of an uninterrupted chain of possession or the negation of every possibility of substitution or change in condition." (Citing State v. Brown, 99 N.J.Super. 22 (App. Div.), certif. denied, 51 N.J. 468 (1968); Middlesex Cnty. Dept. of Health v. Importico, 315 N.J.Super. 397, 423-25 (Law Div. 1998)).
The ALJ concluded:
Dunn's testimony together with the other records admitted in evidence barely meet the minimum requirements of the Residuum Rule. N.J.A.C. 1:1-15.5. Dunn's testimony is not only admissible, but there is a residuum of competent evidence for his opinions to support an ultimate finding of fact.
There was no evidence presented that the collection of the specimen or the transportation of the specimen to the State lab denigrated it for testing. The assertion that appellant's positive test was from falling into raw heroin, or that the chain of custody for the urine sample was defective, or that the sample was tampered with at the scene or the State Laboratory are all speculation. No facts or proofs were offered to support these assertions.
Based upon the testimony of the witnesses that the specimen did not appear to be tampered with, the chain of custody form, the initial screening, the GMAS test, and the split sample test from Quest Labs[, ] the [City] has shown the reasonable probability that the integrity of the sample has been maintained.
Our review of decisions by administrative agencies is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In our review, we only determine:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Mazza v. Bd. of Trustees, 143 N.J. 22, 25 (1995) (citation omitted)).]
"[I]f substantial evidence supports the agency's decision, a court may not substitute its own judgment for the agency's even though the court might have reached a different result . . . ." Id. at 483 (citation omitted).
However, "we are 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Our review of a "strictly legal issue" is de novo. In re Langan Eng. & Environ. Svcs., Inc., 425 N.J.Super. 577, 581 (App. Div. 2012).
Angelini contends that there was no competent evidence establishing that the sample he supplied was the sample actually tested that yielded positive results for methadone. In this regard, he argues the ALJ relied solely upon hearsay, in violation of N.J.A.C. 1:1-15.5(b), the residuum rule. He also contends that in Lalama, supra, we "previously ruled on the issue of the sufficiency of the chain of custody in a drug testing case." He argues that in this case, the evidence was insufficient because Medina, who died prior to the hearing, never testified regarding the gathering of the sample, or that it was properly sealed, stored and delivered to the lab, and the ALJ and the CSC wrongly concluded that the City had adequately proven the chain of custody regarding the tested urine sample.
In contested administrative proceedings, "[t]he parties shall not be bound by rules of evidence whether statutory, common law, or adopted formally by the Rules of Court[, ]" and, with certain exceptions, "[a]ll relevant evidence is admissible." N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.1(c).
Subject to the judge's discretion to exclude evidence under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.
However, the "residuum rule" provides:
Notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness.
In Weston v. State, 60 N.J. 36, 51 (1972) (citations omitted), the Court explained that, "in the final analysis[, ] for a court to sustain an administrative decision which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it." "The risks of relatively free use of hearsay and other forms of evidence not sanctioned by the Rules of Evidence are mitigated by a correlative standard requiring the existence of some legally competent evidence as the foundation of every adjudicative determination made by an administrative agency." DeBartolomeis v. Bd. of Review, 341 N.J.Super. 80, 84 (App. Div. 2001).
However, the Court has cautioned against a rigid application of the rule:
It is not possible to state a hard and fast rule as to the extent hearsay may be utilized in evaluating the sufficiency of the evidentiary basis of a particular administrative determination. Suffice it to say that much may be left to the discretion of the administrative official who should be aware of the principle which warrants reception of hearsay, as well as the qualification thereon that the decision should not be predicated on hearsay alone. On judicial review, in deciding whether the evidence in its totality sustained the administrative conclusion, naturally the same rule of admissibility would apply. Of course more sensitive awareness would be expected of a court weighing the combined probative force of the relevant hearsay and the relevant competent evidence.
[Weston, supra, 60 N.J. at 52.]
"Applying the residuum rule requires identifying the 'ultimate finding of fact' that must be supported by a residuum of competent evidence." In re Cowan, 224 N.J.Super. 737, 750 (App. Div. 1988). "[T]here need not be a residuum of competent evidence to prove each act . . . so long as 'the combined probative force of the relevant hearsay and the relevant competent evidence' sustains the [agency's] ultimate finding of unbecoming conduct." Id. at 751 (quoting Weston, 60 N.J. at 52) (emphasis added). This is to be contrasted with circumstances where proof of the ultimate finding of fact rested solely upon hearsay. See, e.g., Dolan v. City of East Orange, 287 N.J.Super. 136, 139, 145 (App. Div. 1996) (concluding that procedure leading to the employee's discharge lacked basic fairness and due process because the hearing officer relied solely upon an unsigned, unsworn letter).
As we observed in Lalama, supra, "whether the chain of custody of a drug sample has been sufficiently established to justify admission of test results is committed to the discretion of the trier of fact." 343 N.J.Super. at 565. "Such evidence should be admitted if there is a 'reasonable probability that the evidence has not been changed in important respects.'" Id. at 565-66 (quoting State v. Brunson, 132 N.J. 377, 393-94 (1993)). "Thus, it is not necessary for the party introducing such evidence 'to negate every possibility of substitution.'" Id. at 566 (quoting Brown, supra, 99 N.J.Super. at 27). The "reasonable probability" standard is even more appropriate in the context of a contested administrative proceeding where the rules of evidence do not apply. Ibid.
Initially, we agree with the City that Angelini "seeks to turn . . . [our] holding in Lalama into the definitive primer on the manner in which chains of custody must be established in drug test cases." We acknowledge that the proofs in Lalama may have been more extensive, but the method of adequately proving a chain of custody will necessarily vary from case to case.
In this case, we are convinced that the chain of custody was adequately proven and that "the combined probative force of the relevant hearsay and the relevant competent evidence" sustained the CSC's ultimate finding of unbecoming conduct. Cowen, supra, 224 N.J.Super. at 751. Montez witnessed the selection of Angelini for a random drug test in accordance with the AG's guidelines. He testified that in accordance with those guidelines, every officer was required to seal his sample and provide it to his monitor, in this case Medina. Montez also stated that if a sample evidenced any form of having been tampered with, it was discarded. Montez testified that the samples were stored in a locked freezer in the IAD until transported to the lab.
Angelini lodged no objection at any point in the process. We also note that the AG's Policy, which is in the record, specifically prohibits the use of an officer's name on the specimen. The chain of custody form utilized social security numbers to identify the samples delivered by Medina to the lab on July 16. Medina initialed the form next to each sample, specifying the date of collection, in this case July 15.
Dunn testified that a sample would not be accepted if it evidenced any sign of tampering. He also stated that each specimen contained a sheet of paper with an identifying social security number on it. In this case, the specimen bearing Angelini's social security number and collected on July 15 was accepted, as evidenced by the signature of lab personnel on the form.
We note that the lab results also evidenced the presence of Oxycodone, medication that Angelini listed on his disclosure form and turned over to Thomas during the investigation. Moreover, when Angelini's split sample was tested nearly one year later, it too revealed the presence of methadone.
We are convinced that under these circumstances and relying upon both direct testimony reasonable inferences drawn therefrom and expert testimony the ALJ did not abuse his discretion by concluding that the urine sample supplied by Angelini on July 15 2010 was the same sample Medina transported to the lab on July 16 that yielded positive results for methadone and that "there [was] a reasonable probability that the evidence ha[d] not been changed in important respects" Lalama supra 343 N.J.Super. at 565-66 (citations omitted)