IN THE MATTER OF MICHAEL HUCHKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1228-04T11228-04T1

IN THE MATTER OF

MICHAEL HUCHKO,

BOROUGH OF CARTERET.

________________________

 

Submitted February 27, 2006 - Decided

Before Judges Lintner, Holston, Jr. and Gilroy.

On appeal from a final administrative decision of the Merit System Board.

Wilentz, Goldman & Spitzer, attorneys for appellant Michael Huchko (Darren M. Gelber, of counsel and on the brief).

Genova, Burns & Vernoia, attorneys for respondent Borough of Carteret (Sandro Polledri, of counsel; Mr. Polledri and Dina C. Kerman, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Appellant, Michael Huchko, appeals from the final decision of the Department of Personnel's Merit System Board (Board) entered on September 23, 2004, upholding his termination from the Borough of Carteret's Police Department because he tested positive for cocaine during a random drug test. We affirm.

On January 25, 2002, the Borough of Carteret (Borough), through its Police Department, served appellant with a Preliminary Notice of Disciplinary Action (Preliminary Notice), notifying him that he was suspended without pay, effective January 24, 2002, based on the positive results of a random drug test report dated January 23, 2002. The Preliminary Notice charged appellant with violations of N.J.S.A. 40A:14-147, N.J.A.C. 4A:2-2.3(a)1, N.J.A.C. 4A:2-2.3(a)3, N.J.A.C. 4A:2-2.3(a)6, N.J.A.C. 4A:2-2.3(a)11, N.J.A.C. 4A:2-2.5(a)1, and of the Attorney General's guidelines regarding drug use. The Preliminary Notice also advised appellant that the Borough was proposing his removal from employment, effective January 24, 2002. On January 30, 2002, appellant requested a departmental hearing.

On August 14, 2002, a disciplinary hearing was held before the Mayor and Borough Council at which time appellant denied that he ever ingested cocaine. On October 18, 2002, the Borough issued a Final Notice of Disciplinary Action (Final Notice), sustaining the charges and terminating appellant's employment, effective January 24, 2002.

On November 7, 2002, appellant appealed the Borough's decision to the Board, seeking reinstatement, back pay, and attorney fees, and the matter was transmitted to the Office of Administrative Law (OAL). An Administrative Law Judge (ALJ) conducted a hearing on November 17, 2003, and March 23, 2004. On July 13, 2004, the ALJ issued his initial decision affirming the Borough's termination of employment. Exceptions were filed by both parties. On September 8, 2004, after considering the ALJ's initial decision, and having made an independent evaluation of the record, the Board not only accepted and adopted the ALJ's findings of fact and conclusions of law, but also his recommendation that the removal be upheld. On September 23, 2004, the Board issued its final administrative action denying the appeal.

The facts are mostly undisputed. In October 1986, the Attorney General of New Jersey issued a law enforcement drug testing policy (the State's policy), with amendments in August 1990, September 1998, and June 2001. Division of Criminal Justice, Office of the Attorney General, Drug Testing, Attorney General's Law Enforcement Drug Testing Policy, at 1. The State's policy contains the Attorney General's guidelines (AG's guidelines) for drug testing "[s]worn law enforcement officers who are responsible for the enforcement of the criminal laws of this State, come under the jurisdiction of the Police Training Act[,] and are authorized to carry a firearm under N.J.S.A. 2C:39-6." Ibid. The State's policy requires law enforcement agencies to order drug testing of officers when there is reasonable suspicion to believe that an officer is illegally using drugs, and permits such agencies to implement random drug testing programs. Concerning random drug testing, the State's policy provides in pertinent part:

1. Law enforcement agencies may choose to implement a random drug testing program for their sworn law enforcement officers. Law enforcement agencies which establish a random drug testing program must do so by rule and regulation as defined in N.J.S.A. 40A:14-118 for municipal law enforcement agencies or by appropriate standard operating procedures for county and [S]tate law enforcement agencies. Random drug testing cannot be implemented until rules and regulations establishing such a procedure have been in effect for a minimum of 60 days.

2. Each agency's rules and regulations or appropriate standard operating procedures will, at a minimum:

a. State that all sworn members of the agency are eligible for random drug testing, regardless of rank or assignment[;]

b. State the number of officers to be selected each time a random selection takes place. This can be expressed as either a number of sworn officers or a percentage of the sworn officers, which in every case shall be less than the total number of sworn officers employed by the agency[;]

c. Establish a method of random selection which ensures that every sworn officer in the agency has an equal chance to be selected for a testing each and every time a selection takes place[;]

d. Establish a system by which the selection process can be verified and documented[;]

. . . .

g. Establish a system to collect urine specimens from selected officers in a prompt, efficient and confidential manner.

[Id. at 4.]

For a specimen acquisition, the State's policy requires that a selected officer void into a specimen collection container, seal the container, and deliver it to the monitor. Additionally, the officer is to be given the option to provide a second urine specimen at the time his first specimen is collected, with the caveat that "[t]he second specimen shall be collected in the same fashion as the first specimen." Id. at 7. The State's policy requires the monitor to place the second specimen in a secured refrigerated storage area "for a period of sixty days[,] or until the agency receives notification from the State Toxicology Laboratory [(the State Lab)] that the first specimen tested negative for the presence of controlled dangerous substances [(CDS)]." Ibid. If the first specimen tests positive, the agency, upon request of the officer, is to release the second specimen to the officer for independent testing. Lastly, the State's policy provides that if an officer tests positive for illegal drug use, the officer: 1) is to be "immediately suspended from all duties;" 2) "shall be terminated from employment as a law enforcement officer, upon final disciplinary action;" 3) "shall be reported by his or her employer to the Central Drug Registry maintained by the Division of State Police;" and 4) "shall be permanently barred from future law enforcement employment in New Jersey." Id. at 11.

The Middlesex County Prosecutor established a random drug testing policy (the County's policy), substantially similar to the State's policy. The County's policy included a provision that "[a]fter the monitor has inspected the appropriate forms for accuracy, the . . . sworn officer shall void into two (2) specimen collection containers" and that "[t]he second specimen will be collected in the same fashion as the first specimen."

In October 2000, Captain James V. Hojecki, of the Borough's police department, attended a chain of custody and specimen acquisition training program for law enforcement drug testing sponsored by the Attorney General's Office, and conducted by the Middlesex County Prosecutor's Office. The training instructor was Dr. Mike Emmanuel of the State Lab. The course included instructions on how to split urine specimens by voiding into one container, and if the officer being tested wanted to do so, pouring the urine from the first container into a second one.

On August 16, 2001, members of the Borough Council's Police Committee met with Captain Hojecki, Police Chief John Pieczyski, Civilian Police Director Chris Elg, and the Borough attorney, to discuss the implementation of a drug testing policy for the Borough's police department. At the meeting, Hojecki produced a draft of a proposed "Carteret Police Department Law Enforcement Officer Drug Testing Policy and Procedure" (Carteret's policy). Carteret's policy mirrored the County's policy, except, with respect to specimen collection, it provided that the "sworn officer shall void into one (1) of the two (2) specimen collection containers that shall be provided. Thereafter, the individual shall split (divide) the volume of the obtained specimen between the first specimen collection container and the second specimen collection container." Carteret's policy further provided that "the second specimen will be collected in the same fashion as the first specimen," and also provided that ten percent of its officers would be selected each time random testing took place and that those officers would be selected through the use of RandomWare Software, a computer software program provided by the Prosecutor's Office.

On August 16, 2001, the Borough Council adopted a resolution that "approved[,] for implementation by the Carteret Police Department," the County's policy, and authorized the Police Committee, pursuant to N.J.S.A. 40A:14-118, to "adopt and incorporate the aforementioned drug testing policy and procedure into the 'Rules and Regulations for the Police Department of the Borough of Carteret' in accordance with the authority set forth in the . . . Carteret Code." The purpose of Carteret's policy was to establish guidelines for drug testing "in accord with the Attorney General's guidelines as set forth in the Middlesex County drug testing policy."

Janet Santoro, Chairperson of the Police Committee, notified Chief Pieczyski that Carteret's policy should be enforced. The Prosecutor's Office provided the RandomWare computer software and instructions to Hojecki, who also was the police department's Internal Affairs Officer. Lieutenant Daniel Tarrens, who oversaw the police department's computers, installed the software on a secured computer in Hojecki's office. The names of the police department's fifty officers were entered for the random selection of ten percent of officers consistent with the drug testing policy and procedures. The Prosecutor's Office also provided bagged and sealed specimen collection containers with temperature strips and labels, along with caps that could be pressed into place, thereby sealing them. The bags and specimen collection containers were supplied by the State Lab through the Middlesex County Prosecutor's Office.

On August 28, 2001, Chief Pieczyski sent an e-mail to all police stating: "Effective 10/16/01 all sworn members of the Carteret Police Department are subject to Random Drug Testing." On November 28, 2001, Hojecki personally served all officers with a memorandum concerning the new drug testing policy and procedure. Attached to his memorandum was a copy of Carteret's policy, designated as Appendix I to the "Carteret Police Department Rules and Regulations." Each officer was required to sign a receipt acknowledging service of the memorandum.

During November 2001, and December 2001, appellant was out sick for extended periods because of various ailments, including Epstein-Barr Syndrome. On December 7, 2001, Hojecki delivered Carteret's policy to his house, where he gave it to appellant's mother. When appellant returned home, he authorized Hojecki by telephone to sign his name on the acknowledgment receipt.

On December 10, 2001, Hojecki and Detective Gregory Denton, the officers' representative, used the RandomWare software program to generate the first list of officers to be subjected to random drug testing. Of the fifty officers in the department, 10%, or five officers, were selected, including appellant. Appellant returned to work on December 21, 2001.

On January 1, 2002, Hojecki informed appellant that his name had been selected for random drug testing. After verifying that appellant had read the drug testing policy, Hojecki requested him to complete the medical information form. Because appellant could not recall all of the medications that he had taken during the past fourteen days, appellant was permitted to complete the form after the test.

Although most of the facts are uncontroverted, the testimony concerning the test differed. Appellant testified that he followed Hojecki into an office, where he observed two specimen collection containers out of their plastic bags, with their caps off on a desk. Hojecki, however, testified that the two containers were sealed when they entered the room; and he instructed appellant to open the bags, remove the containers, the lids and the labels, fill out the labels in pencil, and place one label onto each container.

After checking the bathroom beforehand, Hojecki instructed appellant to enter the bathroom alone with the door left open, where, at Hojecki's instruction, appellant voided into one container and split the sample by pouring part of the sample into the second container. After the containers were sealed, Hojecki checked the temperature gauge to verify that he had a proper sample (a temperature consistent with recent urination), and placed them in the freezer part of a locked refrigerator used for that purpose only. Appellant went home and completed the medication form, identifying numerous prescription and non-prescription drugs that he had taken in the fourteen-day period prior to the drug test.

On January 2, 2002, Hojecki delivered appellant's urine specimen and medication form to the State Lab where forensic toxicologist Robert Havier, Ph.D., supervised the law enforcement drug testing program. Havier testified that Rene Biziak, a State Lab analyst, received appellant's collection container from Hojecki. Biziak followed standard operating procedures, inspecting the sample to determine its coloration, making sure the container was sealed and not leaking, and confirming that the social security number and name were printed on the label. After being assigned an identification number, appellant's specimen was placed into a secured refrigerator in the State Lab.

On January 4, 2002, Biziak performed an initial screening test using the AxSYM FPIA instrument on an aliquot of urine. This test uses fluorescence polarization immunoassay (FPIA) technology to screen for certain drugs at specified threshold levels. The initial test result was positive for benzoylecgonine, with a reading in excess of 5,000 nanograms per millimeter, the maximum range of the instrument. If an AxSYM FPIA screening returns a positive result, the State Lab is required, within ten business days of the positive screening, to conduct a gas chromatography-mass spectrometry (GC-MS) test. Appellant's sample was placed in a secured refrigerator, and on January 23, 2002, Sorin Diaconescu, a State Lab analyst, performed the GC-MS test on another aliquot taken from the original sample, which tested positive for both cocaine and benzoylecgonine. The GC-MS test confirmed the presence of 41.5 nanograms per millimeter of cocaine and 4,342 nanograms per millimeter of benzoylecgonine. Havier opined that the level of cocaine detected was "high" or "medium to high," while the level of benzoylecgonine was "probably medium to high."

In positive cases, the State Lab requires a medical officer to review all of the data, including the medication form. Dr. John Krolikowski performed the review of appellant's medication form and found no indication that the listed medicines could have produced the positive results. Concerning the Borough's method of obtaining a split sample of appellant's urine, rather than having appellant void into two separate containers, Havier opined that use of the split sample method would not have caused any problems with the test.

On January 24, 2002, Hojecki drove to the State Lab, and picked up the report. After returning to police headquarters, Hojecki filled out an internal affairs complaint form, noting that appellant failed the drug test. At approximately 3:30 p.m. the same day, Hojecki, the police chief, and the on-duty shift commander, Sergeant Robert Terebetski, met with appellant, informed him of the positive test results, and notified him that he was suspended immediately without pay. Hojecki gave appellant copies of the personnel order, the lab report, and a list of independent laboratories that he could use to have his second sample tested.

On February 11, 2002, appellant served the Borough with notice that he intended to have his second urine specimen tested by an independent laboratory. On February 28, 2002, a courier for Bio-Reference Laboratories, Inc., took possession of the second urine specimen. On August 14, 2002, appellant appeared at a disciplinary hearing before the Borough Council. When asked, appellant denied that he ever ingested cocaine and stated that he could not explain the positive results.

On August 8, 2003, the Borough wrote to the ALJ requesting discovery to determine if appellant had the second sample tested; and if so, to obtain a copy of the report, as well as copies of appellant's medical history and records, in order to confirm the accuracy of his testimony at the disciplinary hearing of August 14, 2002. Appellant objected to the Borough's request for the test results, claiming attorney work-product privilege. On September 17, 2003, the ALJ denied the Borough's request for appellant's medical records, but ordered the disclosure of information and documents relating to the split sample. On September 23, 2003, appellant produced a one-page report prepared by Bio-Reference Labs dated March 7, 2002, that stated the specimen tested positive for cocaine.

At the OAL hearing on March 22, 2004, appellant testified that he never ingested cocaine, and did not recall any situation in which he might have unwillingly ingested cocaine. When asked if he could explain the positive result of his urine test, appellant replied: "I can[not]. I had stated when I was first suspended, though, '[t]his is impossible. It must be because of the medication I [am] taking.'"

Additionally, appellant testified that the Borough owed him benefits and back pay, claiming he was suspended without pay while no criminal charges had been filed against him. He claimed that he was owed back pay for sick time, vacation time, holidays, earned college credits, and four hours of overtime for the day he was called in to be suspended.

At the hearing, the ALJ addressed the issue of the two methods of specimen collection, stating:

It does appear that there is a different method of collection. The Borough provides for urination into one of these urine specimen specialized sealed bottles and then you pour that into a second such bottle, whereas, the A.G.'s and the Middlesex County, as I understand it, has the officer urinating into two. I just do [not] see in there any basis or belief that there is a lack of reliability in the collection of the sample.

I mean, these are specialized containers, and yes, there is a different method, but I do [not] see any reason in the Borough's method of collect[ing] specimens that would lead me to believe that it [is] less reliable, that it [is] more likely in this case to have been tampered with, so that the positive result should be excluded.

On July 13, 2004, the ALJ issued his initial decision, determining that the Borough's witnesses were credible, and that appellant had possessed and ingested cocaine. The ALJ found that Havier credibly described the State Lab's procedures for the initial screening and the GC-MS confirmation test. The ALJ also found Hojecki credible concerning the reliability of the computer software used for the random selection, and that appellant's specimen containers had not been contaminated.

Turning to the merits of the charges, the ALJ determined that: (1) the Borough properly adopted its drug testing policy; (2) the Borough adopted the policy on August 16, 2001, sixty days before the first random drug tests; (3) the Borough adequately proved that the computer program used for the random selection was reliable based on Hojecki's unchallenged and uncontradicted testimony that the Prosecutor's Office provided the RandomWare software; (4) the evidence established a reasonable probability that appellant's urine sample had not been changed in important respects before it was reliably analyzed (screening and confirmation) for the presence of a CDS metabolite, the results of which should not be excluded from evidence; (5) the containers presented to appellant were properly sealed, and the container received by the State Lab was capped, showing no evidence of tampering; (6) there was no evidence that appellant's medications caused the positive results; (7) the time for completing the State Lab's testing did not affect the results; and (8) appellant failed to prove the Borough leaked information to the press; and even if it had, there was no authority to dismiss the charges. Accordingly, the ALJ concluded that appellant was properly removed from his employment as a police officer.

On September 23, 2004, after considering the ALJ's initial decision and having made an independent evaluation of the record, the Board issued its seven-page written decision in which it accepted and adopted the ALJ's findings of fact and conclusions, and recommended that appellant's removal be upheld.

The Board determined that:

[I]n the instant matter, the appellant was randomly selected to submit a urine specimen, he privately produced the requisite urine specimen, he observed the placement of tamper-proof seals on the two containers holding his primary urine specimen and his split sample, and his specimen was sent to the laboratory for analysis. Following a positive test result, the confirmation of that positive test result using GC[-]MS analysis, and the review and confirmation of that result by a medical review officer, the appellant's split sample was sent to a second laboratory for analysis. The split sample also tested positive for cocaine. The procedure employed by the Borough afforded the appellant the necessary due process and assurance that the test results produced were reliable. Accordingly, while the Borough's use of the split sample methodology does not precisely mirror that suggested in the AG Guidelines, the Board agrees with the ALJ's conclusion that the appointing authority has proven the charges against the appellant.

The Board found that the ALJ's credibility determinations were proper, and the evidence in the record supported his conclusion that the Borough had met its burden of proof. The Board further found that the Borough had proper authority pursuant to N.J.S.A. 11A:2-13 to suspend appellant without pay prior to a departmental hearing, given the "egregious nature of the offense," and the fact that a law enforcement officer is held to a higher standard than other public employees. The Board upheld the penalty of removal, concluding that it was neither unduly harsh nor disproportionate to the offense.

On appeal, appellant raises the following issues for our consideration:

POINT I.

THE TESTING PROCEDURES UTILIZED IN THIS MATTER RAN AFOUL OF ESTABLISHED ATTORNEY GENERAL GUIDELINES AND CANNOT BE CONSIDERED RELIABLE.

POINT II.

THE MERIT BOARD ERRED IN RELYING UPON THE PROFFERED TEST RESULTS BECAUSE INSUFFICIENT[,] COMPETENT EVIDENCE WAS PRESENTED TO VERIFY THEIR ACCURACY.

POINT III.

THE RESULTS OF THE RANDOM URINE TEST CANNOT PROVIDE A BASIS FOR SERGEANT HUCHKO'S TERMINATION BECAUSE THE RANDOM DRUG TESTING POLICY WAS NEVER FORMALLY ADOPTED BY THE BOROUGH OF CARTERET.

POINT IV.

CARTERET'S RANDOM DRUG TESTING-POLICY IS UNLAWFUL[,] AND THE TEST RESULTS NOT ADMISSIBLE AGAINST SERGEANT HUCHKO.

POINT V.

SERGEANT HUCHKO IS ENTITLED TO BACK PAY AND BENEFITS IMPROPERLY WITHHELD DURING AN IMPROPER PERIOD OF SUSPENSION WITHOUT PAY.

POINT VI.

THE ALJ AND THE MERIT BOARD ERRED IN CONSIDERING THE RESULTS OF THE TESTING OF THE SPLIT SAMPLE OF SERGEANT HUCHKO'S URINE AFTER REJECTION OF HIS CLAIM OF PRIVILEGE.

POINT VII.

A NEW HEARING SHOULD BE ORDERED BECAUSE NEITHER THE MERIT BOARD NOR THE ALJ MADE ANY FINDINGS CONCERNING THE CREDIBILITY OF SERGEANT HUCHKO'S TESTIMONY.

We begin our consideration of the issues raised by restating certain applicable principles. The role of an appellate court in reviewing a final decision reached by an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision, such as the Board's, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of express or implicit legislative policy. Id. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Juvenile Det. Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003). Thus, an appellate court must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, an agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). Nor is an appellate court bound by an agency's interpretation of a statute or resolution of a question of law. Taylor, supra, 158 N.J. at 658.

Because this was a disciplinary case against a Civil Service employee, the appointing authority bears the burden of proof. See N.J.A.C. 4A:2-1.4(a) ("In appeals concerning major disciplinary actions, [N.J.A.C.] 4A:2-2.1 et seq., the burden of proof shall be on the appointing authority."); see also In re Vey, 124 N.J. 534, 540 (1991) (finding the appointing authority had the burden of proving that a candidate met the regulatory description of a police officer, and was subject to removal for psychological unfitness).

After analyzing the record in light of the arguments presented, we affirm, concluding that the decision of the Board is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). We add the following comments as to issues raised in Points I, IV, V, and VI.

A.

Appellant argues that the Borough's random drug testing policy failed to adhere to the AG's guidelines and, therefore, his test results cannot be considered reliable. Appellant contends that the Borough: (1) failed to give proper notice to appellant when it directed him to provide a urine sample on January 1, 2002, a date earlier than sixty days after he received Hojecki's November 28, 2001 memorandum advising of the Borough's implementation of its drug testing policy; (2) failed to establish that the procedure used to select his name was "truly random" given that Hojecki had never before attempted to generate a random list of officers, had no training in using the RandomWare software program, had not known if the program had been installed properly on his computer, and could not say whether his computer had sufficient updated technological capabilities to ensure the program's proper functioning; (3) failed to collect the second specimen "in the same fashion" as the first by using the split-sample methodology, which increased the likelihood of contamination; (4) failed to prove that (a) the specimen containers were sterile and approved by the State Lab, (b) appellant broke the seal on the bag containing the specimen containers, not Hojecki, and (c) Hojecki properly stored the containers by placing them in a refrigerated storage area, not in a freezer; (5) failed to obtain the State Lab's written results within the required fifteen-day time frame; and (6) disclosed the test results to a newspaper in violation of strict confidentiality rules pertaining to random drug testing.

The Board rejected the same arguments, concluding that the ALJ's determinations on witness credibility were proper and that the credible evidence in the record supported the ALJ's conclusions. The Board found that although the Borough's use of the split-sample methodology had not precisely mirrored the suggested AG's guidelines, the deviations had not amounted to any violation of appellant's rights to due process, nor did the deviations call into question the validity of the positive test result. The Board found that appellant was randomly selected, he privately produced the urine specimen, and he observed the placement of seals on the primary and split specimens. The Board determined that the primary specimen's test results were reliable, given that the State Lab subjected the urine sample to an initial test and a confirmation test using GC-MS analysis, and a medical officer reviewed and confirmed the results. Lastly, the Board noted that the split sample tested positive for cocaine.

The question is whether there was substantial credible evidence in the record to support the Board's determination that any technical deviations from the State's policy did not require the voiding of appellant's drug test results.

The Attorney General is the chief law enforcement officer in the State. N.J.S.A. 52:17B-98; Carberry, supra, 114 N.J. at 577-78. To promote the public policy of encouraging cooperation among law enforcement officers, the Legislature authorized the Attorney General to provide for "'uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State.'" In re Carroll, 339 N.J. Super. 429, 439 (App. Div.) (quoting N.J.S.A. 52:17B-98), certif. denied, 170 N.J. 85 (2001).

Consistent with that authority, the Attorney General issued guidelines concerning the appropriate application of the State's criminal laws. Ibid. The Supreme Court has acknowledged the validity of various AG's guidelines. Ibid. Where the purpose of such guidelines is to establish procedures for investigating employee misconduct or determining whether criminal or disciplinary action is required, they are enforceable. Id. at 442-43 (holding Attorney General's internal affairs policy and procedures were binding on municipal police departments because they fell within the statutory exception in N.J.S.A. 52:14B-2(e)(1), for "statements concerning the internal management or discipline of any agency," and thus, were not required to be promulgated as rules pursuant to the Administrative Procedure Act).

In October 1986, based on the recommendations of the New Jersey Criminal Advisory Council, the Attorney General issued the State's policy, concluding that it was necessary to establish uniform statewide drug testing guidelines to maintain a "drug-free law enforcement community and at the same time safeguard the rights of individual police officers." Carberry, supra, 114 N.J. at 582 (citation omitted); N.J. Transit PBA Local 304 v. N.J. Transit Corp., 290 N.J. Super. 406, 409-10 (App. Div. 1996), aff'd, 151 N.J. 531 (1997). Appellant contends that the procedures used to obtain his urine specimen were in violation of the AG's guidelines because they did not "mirror" them exactly. We disagree.

The argument disregards the statutory requirement, case law, and the plain language of the AG's guidelines. N.J.S.A. 40A:14-181, enacted as part of the Law Enforcement Protection Act of 1996, mandates law enforcement agencies to adopt and implement policies and procedures "consistent with" those set forth in the Internal Affairs Policy and Procedures promulgated on behalf of the Attorney General. Carroll, supra, 339 N.J. Super. at 435. The statutory requirement that the policy and procedures, adopted by a law enforcement agency, be "consistent" with the AG's guidelines by definition requires that the adopted policy be "accordant; harmonious; compatible; and not contradictory." Black's Law Dictionary 279 (Special Deluxe 5th ed. 1979).

Nor is there anything in the AG's guidelines requiring law enforcement agencies to implement a random drug testing program that exactly follows all of its recommended procedures. Importantly, the AG's guidelines state that each agency's rules and regulations must meet only minimum requirements, including, but not limited to, the establishment of a system "to collect urine specimens from selected officers in a prompt, efficient and confidential manner." There is no requirement that law enforcement agencies adopt a sampling methodology that precisely mirrors the State's policy.

Appellant argues that the Borough did not give its police officers the required sixty-day notice before implementing the random drug test, because Hojecki had not distributed the Carteret policy until November 28, 2001, less than sixty days before his random drug test on January 1, 2002. As the ALJ and Board found, however, the AG's guidelines did not call for advance notice to officers, but only that random drug testing had to have been "in effect" for a minimum of sixty days. Here, the Borough adopted the policy on August 16, 2001, more than sixty days before December 10, 2001, when Hojecki randomly selected appellant, and more than sixty days before appellant was tested. Additionally, in August 2001, the Borough notified its officers that, effective October 16, 2001, they would be subject to random drug testing.

Appellant argues next that the Borough did not follow the AG's guidelines because his selection was not "truly random." He contends that Hojecki had never before attempted to generate a random list of officers, had no training in using the RandomWare software, had not known if the program had been installed properly on his computer or if it had been tested following installation, and could not say if his computer had sufficient updated technological capabilities to ensure the program's proper functioning. The ALJ, however, found that the Borough adequately proved that the computer program used for random selection was reliable. The ALJ's determination is supported by evidence in the record. Hojecki's testimony that the Prosecutor's Officer provided the RandomWare software was not challenged, and his testimony was found credible and reliable. Hojecki also testified that Tarrens, a police lieutenant who oversaw the department's computers, installed the software and set up the list of all officers from which the random selections would take place; and Denton, the officers' representative, was present when Hojecki used the program to generate the first list of names.

Appellant argues next that the Borough failed to comply with the AG's guidelines for specimen collection. Appellant contends that the Borough's policy of having an officer void into one container and then split or divide the volume between the first and second containers violated the AG's guidelines and the County's policy. By not collecting his second specimen "in the same fashion" as his first one, appellant argues that there was an increased potential to produce a contaminated sample. The evidence is to the contrary. Havier testified about the debate over the two methods, and stated that some people favor the use of separate cups, but he was not aware of any problems that could develop as a result of pouring urine from one container into another as opposed to voiding directly into separate containers. Hojecki testified that representatives of the State Lab instructed him on how to split urine specimens at the program sponsored by the Attorney General.

We are satisfied that there was sufficient and competent evidence that appellant's tests were reliably obtained and the test results were not compromised by splitting the sample. Nor is there evidence that any of the other alleged deviations, such as whether the specimen cups were sterile, whether they were approved by the State Lab, whether Hojecki opened the seal on the bags containing the cups, and whether the specimens were properly stored, amounted to material violations. To the contrary, appellant admitted on cross-examination that he had no information that the containers had been used before or were otherwise contaminated. Havier also testified that when the State Lab received plaintiff's specimen container, it was sealed and not leaking, and there were no problems with the sample.

Appellant argues next that the Borough violated the AG's guidelines by failing to obtain the State Lab's written report within fifteen days. As the ALJ found, however, appellant's specimen was collected on January 1, 2002, and the State Lab performed its initial test on January 4, 2002. Moreover, the ALJ found "[t]he January 23, 2002, confirmation was shortly thereafter and Dr. Havier's testimony that those few days did not affect the result of the test was credible and not contradicted." Havier testified that he was not aware of any kind of chemical degradation that could have affected the validity of the confirmation analysis as a result of the nineteen-day gap.

Finally, appellant argues that his test results should be voided because someone involved in the drug testing process disclosed confidential information about his test results to The Star Ledger newspaper in violation of the AG's guidelines. The guidelines specifically provided that "any member of the agency who discloses the identity of an officer selected for random testing or the fact that a random selection is scheduled to take place prior to the collection of urine specimens shall be subject to discipline." (emphasis added). Appellant, however, failed to prove that the Borough leaked the information. Even if that were the case, the ALJ correctly determined that such misconduct might provide a basis for discipline of that official, but that the disclosure was no reason for dismissal of the serious charges against appellant.

Appellant cites three cases where police officers were reinstated because their drug tests were not administered in accordance with the policies at issue. We conclude that they are factually distinguishable.

In Mattielli v. Bayonne Department of Public Safety, 2 001 N.J. AGEN. LEXIS 615, at *35-*36 (OAL Sept. 17, 2001), the ALJ concluded that the police officer trainee should be reinstated based on the academy's failure to advise the trainee that he had the option of maintaining a second urine sample which could have been used to challenge his dismissal. Otherwise, the ALJ concluded that the AG's guidelines were followed, even though the monitor arguably allowed the trainee to leave the bathroom alone for a drink of water, given the overwhelming weight of the evidence that the trainee voided the sample, the lab properly tested it, the tests were accurate, and the results were positive for cocaine. Id. at *33-*34. Here, unlike Mattielli, appellant gave a split sample which tested positive.

In In re George, DOP 2002-447, final decision, (Dec. 18, 2003) (slip op. at 2), vacated and remanded, 384 N.J. Super. 232 (App. Div. 2006), the Board reversed the ALJ's recommendation and ordered the reinstatement of a police officer because of the agency's failure to instruct the laboratory to test his second urine sample at the same threshold level as the primary sample. The Board determined that the failure to test both samples at the same threshold deprived the officer of the opportunity to "demonstrate that the initial test is somehow invalid or to dispute a 'false positive' finding." Ibid. Accordingly, the Board concluded that the drug testing process was "fundamentally flawed." Ibid. This court remanded for further proceedings to determine whether the failure to test the second sample "rendered the testing process 'fundamentally flawed.'" George, supra, 384 N.J. Super. at 245. To the contrary, appellant had the opportunity to demonstrate that the initial test result was a "false positive" when he had his second sample tested by an independent laboratory.

Appellant also cites In re Martin, DOP, final decision, (Dec. 7, 2000). In that case, the Board adopted the ALJ's recommendation that the correction officer's removal be reversed because the conditions and circumstances surrounding his drug screening were flawed. The ALJ found that the agency violated its own drug testing policy by having four drug tests, including the officer's test, performed at one time with at least three of those tests being performed simultaneously. The Board determined that such procedural irregularities constituted, "a substantial abandonment of proper drug testing procedures as testified to by several witnesses . . . sufficient to invalidate the appellant's test." Id. at 2 (emphasis added). Here, none of the alleged procedural variations from the AG's guidelines rose to the level of egregious or substantial violations.

B.

Appellant argues under Point IV that the exclusionary rule applied to his administrative proceeding and, therefore, the results of his urine test should have been suppressed. While the Board did not address this issue in its decision, the ALJ determined that the exclusionary rule did not apply to appellant's civil proceeding. We agree.

The guarantees against unreasonable searches and seizures embodied in the Fourth Amendment's exclusionary rule apply to law enforcement and government officials. City of New Brunswick v. Speights, 157 N.J. Super. 9, 14 (Cty. Ct. 1978). The goal of the exclusionary rule is to deter police and government officers from infringing on an individual's constitutional rights. Tartaglia v. Paine Webber, Inc., 350 N.J. Super. 142, 149 (App. Div. 2002). The exclusionary rule, however, does not apply to administrative or disciplinary proceedings. Kelly v. Sterr, 62 N.J. 105, 107 (holding constitutional safeguards guaranteed an accused in a criminal proceeding did not apply to state trooper's departmental hearing to determine if trooper failed to properly carry out his assigned duties), cert. denied, 414 U.S. 822, 94 S. Ct. 122, 38 L. Ed. 2d 55 (1973); Speights, supra, 157 N.J. Super. at 22 (holding exclusionary rule did not apply to civil disciplinary hearing involving removal of police officer from employment). Because the matter here concerns a civil administrative proceeding, appellant's argument lacks legal support.

C.

Appellant argues that the Board erred by upholding the imposition of an immediate suspension without pay pending resolution of the charges against him. Appellant contends that the Borough should reimburse him for salary and benefits that were improperly withheld during his period of suspension.

The Board found that appellant mistakenly relied on the provisions of N.J.S.A. 40A:14-149.1 in support of his argument that he was entitled to pay during suspension, and held that N.J.S.A. 40A:14-149.1 did not apply because there was no indication in the record that appellant was charged with a criminal offense. Instead, the Board determined that N.J.S.A. 11A:2-13 vests the Borough with the authority to immediately suspend an employee without pay prior to a departmental hearing. Because appellant's drug test was positive for cocaine, the Board concluded that the Borough was within its authority to immediately suspend him without pay. Moreover, given the offense's "egregious nature," the Board determined that removal was the proper penalty. We agree.

N.J.S.A. 40A:14-149.1 mandates a suspension with pay, only in those cases where a criminal or quasi-criminal offense is charged as the basis for a disciplinary proceeding, unless the offense charged was especially grave or an indictment returned. Herzog v. Twp. of Fairfield, 349 N.J. Super. 602, 605 (App. Div. 2002) (holding police officer charged solely with violations of department rules or regulations could not be suspended without pay). Because appellant here was not charged with a criminal offense, N.J.S.A. 40A:14-149.1 does not apply. However, N.J.S.A. 11A:2-13 does.

N.J.S.A. 11A:2-13 provides that as part of the disciplinary process an employee may be suspended immediately if the employee "is unfit for duty or is a hazard to any person if allowed to remain on the job," or if "an immediate suspension is necessary to maintain safety, health, order or effective direction of public services." N.J.A.C. 4A:2-2.5(a)(1) authorizes the immediate suspension of an employee on the same grounds. Moreover, N.J.A.C. 4A:2-2.4(b) provides that "[i]n local service, the appointing authority may provide that a suspension be with or without pay."

Carteret's policy determines the disciplinary action that a police officer is subject to on failing a drug test. Section IX, "CONSEQUENCES OF A POSITIVE TEST RESULT," provides, in pertinent part:

C. When a sworn law enforcement officer tests positive for illegal drug use:

1. The officer shall be immediately suspended without pay from all law enforcement duties by the CARTERET POLICE DEPARTMENT pending a disciplinary hearing. In cases involving testing of the second specimen, the disciplinary hearing will not be held until the results of the second specimen test are received by the department.

2. The officer shall be terminated from employment as a law enforcement officer, upon final disciplinary action by the CARTERET POLICE DEPARTMENT.

The results of appellant's test indicated that he ingested cocaine. Because a police officer's primary duty is to enforce and uphold the law, he must present an image of personal integrity and dependability in order to gain the public's respect. Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966). An officer who uses cocaine poses a threat to public safety. Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 189 (1993). Here, the Borough, determined by adoption of its drug testing policy, that police officers who are found to have violated the Borough's drug policy are unfit for duty as police officers, and they should be "immediately suspended without pay from all law enforcement duties." Given the seriousness of appellant's offense, the Borough's immediate suspension of appellant without pay, and the penalty of removal were appropriate.

D.

Lastly, appellant asserts that the ALJ and Board erred by considering the test results of his second urine sample. Appellant argues that the test results were attorney work-product, and the compelled production of those results warrant reversal of the Board's decision.

In its September 19, 2003, ruling on appellant's discovery objections, the ALJ concluded that the independent analysis of appellant's split sample might lead to the discovery of admissible evidence and thus, ordered appellant to produce the independent laboratory's graph or printout showing the presence, or absence, and concentration of any CDS metabolite in the split sample. The ALJ determined:

Providing such data will not compromise or inhibit appellant's attorney's development of defense, strategy, and/or tactics. Consistent with the work-product privilege, the appellant will not provide to the Borough any letter, memorandum, narrative, or report from any expert to appellant's attorney.

An appellate court gives deference to the sound discretion of the trial court on the disposition of discovery issues. Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999). Deference, however, is not appropriate if the court's determination is based on a mistaken understanding of the applicable law. Ibid.

The purpose of discovery in administrative proceedings is "to facilitate the disposition of cases." N.J.A.C. 1:1-10.1(a). The discovery rules achieve that purpose by "giving litigants access to facts [that] tend to support or undermine their position or [the position] of their adversary." Ibid. The rules specifically permit parties to propound interrogatories and document requests, and issue subpoenas. N.J.A.C. 1:1-10.2; N.J.A.C. 1:1-11.1. Moreover, New Jersey court rules permit parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." R. 4:10-2(a).

Privileges are generally "construed narrowly in favor of admitting relevant evidence." Kinsella v. Kinsella, 150 N.J. 276, 294 (1997); Dougherty v. Gellenthin, 99 N.J. Super. 283, 287 (Law Div. 1968) (holding restriction against discovering work product violates basic concept of rules of discovery and, therefore, must be construed narrowly). "A privilege against [the] compelled disclosure of relevant evidence 'runs counter to the fundamental theory . . . that the fullest disclosure of facts will best lead to the truth.'" Kinsella, supra, 150 N.J. at 294 (quoting In re Selser, 15 N.J. 393, 405 (1954)).

For the attorney work-product doctrine to apply, "the materials must have been prepared in anticipation of litigation and not in the ordinary course of business." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554 (1997); accord LaPorta v. Gloucester County Bd. of Chosen Freeholders, 340 N.J. Super. 254, 260-61 (App. Div. 2001) (citing Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S. Ct. 385, 393, 91 L. Ed. 451, 462 (1947)); Wylie v. Mills, 195 N.J. Super. 332, 336-37 (Law Div. 1984) (rejecting attorney work-product privilege where report was not prepared in anticipation of litigation or the result of counsel's thought processes). The doctrine essentially is a rule of procedure that recognizes the need for protection of "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." R. 4:10-2(c); see LaPorta, supra, 340 N.J. Super. at 260. Bio-Reference Lab's report did not constitute attorney work-product. The report was not the result of the thought processes of appellant's counsel, but it did contain factual information demonstrating the presence of cocaine in appellant's urine specimen.

Even if the reports were prepared in advance of litigation, they still would not be fully protected. Under Rule 4:10-2(c), if a party shows that it has a "substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means," then the materials should be disclosed absent any "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

Here, the Borough demonstrated a need for the laboratory report to corroborate the State Lab's findings. Appellant denied ingesting cocaine or any other prohibited drugs. Appellant also contested the accuracy of the urine specimen tested by the State Lab. Under these facts, the Borough was entitled to receipt of a copy of the Bio-Reference Lab report to confirm the accuracy of the original test results. The Borough could not obtain a substantial equivalent of the report. Appellant cannot claim that the report is protected by the attorney work-product privilege solely because the test results were unfavorable to his case. Even assuming that we were to reach a different determination concerning the Borough's right to access and use of the report, we are satisfied that its admission does not constitute harmful error requiring reversal. "Not every trial error in a . . . case requires a reversal . . . ." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); see also R. 2:10-2. "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the [finder of facts] to a result [he or she] otherwise might not have reached." Burton, supra, 309 N.J. Super. at 289. Here, the other evidence adduced by the Borough was sufficient to meet its burden of proof on the charges. Any error was harmless. R. 2:10-2.

Appellant argues that notions of fundamental fairness require the exclusion of the test results from his second specimen. Appellant contends that it would be fundamentally unfair to use the results of the split sample against him even though he does not raise a similar objection to the test results from the primary sample.

Depending on the context, New Jersey's doctrine of fundamental fairness serves as an augmentation of existing constitutional protections or as an independent source of protection against state action. Doe v. Poritz, 142 N.J. 1, 108 (1995). It "'serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 377 (1987)). The doctrine, however, must be applied sparingly "only in those cases where the interests involved are especially compelling." Ibid. To apply the doctrine, there must be a determination that someone was being subjected to potentially unfair treatment where "there was no explicit statutory or constitutional protection to be invoked." Id. at 109. Here, appellant fails to present any compelling reason why it was unfair to consider the test results of his split sample or why the failure to apply the doctrine would subject him to "'oppression, harassment, or egregious deprivation.'" Id. at 108 (quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi, J., concurring and dissenting)).

Affirmed.

 

Benzoylecgonine is the primary metabolite excreted in the urine after cocaine has been processed in the body.

A nanogram is one-billionth of a gram. In re Gen. Disciplinary Hearing of Carberry, 114 N.J. 574, 580 (1989).

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A-1228-04T1

July 12, 2006