IN THE MATTER OF JASON L. POOLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0421-10T2

IN THE MATTER OF JASON L. POOLE and

SOUTHERN STATE CORRECTIONAL FACILITY/

DEPARTMENT OF CORRECTIONS

March 6, 2013

Submitted June 5, 2012 - Decided

Before Judges Baxter and Nugent.

On appeal from the Civil Service Commission, Docket Nos. 2010-1027 and 2010-1995.

Chance & McCann, L.L.C., attorneys for appellant Jason L. Poole (Deana L. Walsh, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Southern State Prison, New Jersey Department of Corrections (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole P. Col n, Deputy Attorney General, on the brief).

PER CURIAM

Former Senior Corrections Officer Jason L. Poole appeals from the Civil Service Commission's (CSC) final administrative decision upholding his removal from office by the Department of Corrections (DOC). The DOC had filed disciplinary charges against Poole as the result of two incidents: Poole took a stranger's purse from a North Wildwood bar, and he attempted to obtain Vicodin with an altered prescription. In this appeal, Poole contends the administrative law judge's (ALJ) factual determinations and legal conclusions, which were adopted by the CSC, were not supported by substantial credible evidence on the record; and the CSC's final administrative decision was arbitrary and capricious because it did not consider his involuntary intoxication. Having considered the record in light of Poole's arguments, we affirm.

I.

The DOC presented seven witnesses, introduced eight exhibits, and developed the following facts at the hearing before the ALJ. Poole worked for the DOC as a corrections officer from June 2001 until the DOC removed him from office on September 8, 2009. Four months earlier, on May 16, 2009, Poole slipped and fell during the course of his employment at Southern State Correctional Facility (SSCF). He remained out of work, on either workers' compensation or disability leave, until he was removed from office. Poole claims that while out on disability he became addicted to prescription medication.

The first incident leading to Poole's removal occurred when he took a purse from the Flip Flopz Bar and Grill in North Wildwood at approximately 3:00 a.m. on June 13, 2009. The incident was recorded on video surveillance, which the ALJ described as follows:

The bar manager testified there are forty-three surveillance cameras in the bar. The first scene shows [Poole] and his girlfriend's arrival at a table upon which a woman had placed a purse. This camera recorded [Poole] pulling the purse over to his side of the table and his girlfriend pushing it back. [Poole] again pulled it over to his side of the table and again his girlfriend pushed it back. Then the girlfriend left the room. [Poole] took the purse and proceeded to walk through the bar. [Poole] and his girlfriend are seen examining the contents of the purse, and then driving away with it.

Shortly after Poole and his girlfriend left the bar, North Wildwood police sergeant Mark Rucci responded to a call, drove to the bar, and spoke with the owner of the purse and the security manager. Approximately one hour later, Rucci received a text message that a woman had telephoned the victim in order to return the purse. Rucci drove to the victim's home where he saw Poole and his girlfriend standing by a car parked in front of her house. Rucci looked through the open car window and saw a large red pocketbook on the floor beneath the steering wheel. After Rucci read Miranda1 warnings to Poole and his girlfriend, Poole's girlfriend told Rucci she found the purse in the street near the tire of her car. She drove to her home, telephoned the purse's owner, and then drove to the owner's home to return it. Poole then asked to speak to Rucci privately.

Poole told Rucci he took the purse accidentally, believing that it belonged to his girlfriend. After they drove home he discovered that it did not belong to her, so he decided to return it. When Rucci asked why his girlfriend said she found it by the tire of her car, Poole just gazed at him, but did not respond. Rucci asked them for identification, recorded the information, and told them that North Wildwood detectives would likely contact them. He forbid them to drive because they appeared to be under the influence of alcohol or drugs. Someone called a taxi cab and they left.

The purse's owner did not want Poole arrested; rather, she wanted to give him a reward. Nevertheless, on July 27, 2009, the North Wildwood police charged Poole with theft and conspiracy. Poole did not inform the DOC of the charges until August 10, 2009. In written and oral statements, Poole characterized the incident as a mistake.

The second incident leading to Poole's removal occurred when he attempted to obtain Vicodin at a CVS pharmacy on October 23, 2009. After Poole dropped off the prescription, pharmacist John Reed noticed that it was written for a "strength" for which there was no commercially prepared Vicodin. The prescription had been written for "Vicodin 7.5/500." Reed explained that the first prescription number, 7.5, is Hydrocodone, and the second prescription number, 500, is Acetaminophen. The combination of Hydrocodone and Acetaminophen comes in three strengths: Vicodin 5/500; Vicodin ES 7.5/750; and Vicodin HV 10/660. There is a Hydrocodone 7.5, but not a Vicodin 7.5.

In an attempt to verify the prescription, Reed faxed a copy to a nurse at the hospital where the prescribing doctor practiced. The nurse thought it looked like the doctor's signature, but could not be sure.

Reed explained the delay to Poole, who had been waiting for the prescription. Poole said he was having pain in his jaw. After Reed verified Poole's identification and gave Poole a copy of the prescription, Poole left.

The doctor who wrote the prescription testified he had never written a prescription for "the quantity of Vicodin, '7.5,'" because "that strength . . . does not exist." Rather, he would have written a prescription for "Vicodin ES," which he always wrote for 5/500. After examining the prescription, the doctor confirmed that with one exception, he wrote everything on the original prescription, including 5/500. He did not recognize the number seven and the dot between the numbers seven and five as his writing.

Poole testified on his own behalf. He had been employed as a corrections officer for eight years before he was injured on May 16, 2009, when he tripped on a copper pipe, landed on his left side, and injured his left hand, shoulder, back, and neck. He was evaluated by a "tech" in the SSCF infirmary, and then another corrections officer transported him to South Jersey Medical Center in Vineland where he was treated, given medication, and released. The DOC referred him to "a place called Occupational Health [that] treats State employees injured on the job."

Poole came under the care of an orthopedist who prescribed a narcotic as pain medication. Poole also underwent physical therapy, but that increased his pain. He continued to "report to [his] doctor weekly to be prescribed more medication," which he took as needed. Although he did not recall the name of the medicine, Poole knew it was a controlled substance. He was prescribed sixty narcotic pills each week, which he took. The pills made him feel disoriented, "out of himself," and occasionally sick. Poole testified he continued to treat with the orthopedist through August 2009, when a workers' compensation representative called and told him the doctor was prescribing too much medication. He was under that doctor's care when the incident involving the purse took place.

On the day he took the purse, Poole spent the day watching television and taking his prescription medication as needed. He took his girlfriend to a local restaurant for dinner around six o'clock that evening, and he had a few drinks. After dinner, they went to another bar, where he drank some more. The two then went to a Wildwood bar called "Goodnight Irene's," where they socialized for "a good amount of time." Flip Flopz was the fourth bar he went to that night. Poole's girlfriend drove to Flip Flopz because Poole was in no condition to drive. Poole did not recall anything that happened at Flip Flopz, other than a brawl that he was not involved in. Poole and his girlfriend left and returned home. Although Poole watched the DVD depicting him taking the purse, he had no recollection of the incident.

The next thing Poole remembered after leaving the bar was his girlfriend waking him when he was home in bed and saying they had to go somewhere to return someone's purse. They drove to a residence in Wildwood Crest where Rucci showed up. After gathering information from the owner of the purse, Rucci upset Poole's girlfriend by speaking to her in an aggressive, unprofessional manner. Because his girlfriend was upset, Poole intervened and asked to speak with Rucci privately. Poole explained that he was at a bar and must have picked the purse up by mistake, believing it belonged to his girlfriend. They had come to the home in Wildwood Crest to return the purse to its rightful owner. Rucci would not allow Poole or his girlfriend to drive her car, so they took a cab, which Poole paid for.

Approximately six weeks later, a Lower Township detective and a North Wildwood detective stopped Poole and his girlfriend while they were traveling in his car. The North Wildwood detective told Poole there were charges pending against him. Poole said he would come to the North Wildwood Police Department in a day or two, and he did. He delayed reporting the charges to the DOC because he was scared and did not know what to do. Later, after speaking with a lawyer and a family friend, he reported the charges to the DOC. Approximately two days later, the DOC filed disciplinary charges against him as a result of the incident at the bar.

Meanwhile, Poole was still out of work due to the injuries he sustained while at work. The workers' compensation case manager referred him to a new doctor, who had him undergo three epidural injections in his lower back in August and in September. The doctor also prescribed "narcotic medication, but it wasn't to excess of what [Poole] was getting . . . in the beginning." Poole recalled the new doctor prescribing "at least half" of what the original doctor had prescribed.

Poole denied that he had forged or altered a prescription. One night, at approximately 10:00 p.m., he went to the emergency room of Burdette Tomlin hospital because he was suffering from a toothache and back pain. After being evaluated by a doctor, an R.N. gave him a prescription. He tried to fill the prescription at a pharmacy in Northfield, but that pharmacy was unable to fill it, so he drove to a pharmacy in Vineland.

At the time, according to Poole, he was under the influence of a drug called Klonopin, which his psychiatrist had prescribed for insomnia. While driving to Vineland, New Jersey State Troopers pulled him over because his car was swerving all over the road. They made him take field sobriety tests and determined he was unfit to drive. They then drove him to a police barracks where he stayed several hours until he was "suited to drive home." When the troopers released him, he drove to the pharmacy in Vineland.

Upon his arrival at the pharmacy, he gave the prescription to the pharmacist, who said he might have to call and verify it. After making Poole wait nearly forty minutes, the pharmacist told Poole the prescription was fraudulent. Poole said the prescription was not fraudulent and explained that a doctor at Burdette Tomlin had written it for him. Poole asked the pharmacist for the prescription, but the pharmacist refused to return the original; instead, he gave Poole a copy. Poole left and drove to another hospital where he was examined and given another prescription, which he filled at an ACME pharmacy.

Poole moved into evidence, and the ALJ admitted, the March 30, 2010 report of Robert J. Pandina, Ph.D. In that report, Dr. Pandina recounted the history of Poole's accident and course of treatment, including his use of prescription medication, and noted that Poole took Oxycodone and Vicodin "from the time of his injury through his admission to drug rehabilitation at Archstone Recovery Center on November 23, 2009." Personnel at Archstone Recovery Center diagnosed Poole, upon his admission, as "opioid dependen[t], alcohol dependen[t] and [with] substance induced anxiety." Dr. Pandina agreed that Poole satisfied the criteria for that diagnosis. Dr. Pandina related Poole's opiate dependence to his treatment for pain following the accident, and noted specifically that Poole's "progression to dependence was relatively rapid and indicates a severe level of dependence."

Dr. Pandina further noted that "[d]ependence upon narcotic analgesics, particularly when they are used with alcohol, result in alterations in mental states and behavioral capabilities, including potential impairments and multiple domains of functioning . . . ."

According to the doctor, the events involving the purse "appear to have been significantly influenced by Mr. Poole's state of alcohol and drug induced intoxication." The doctor characterized those events as "at best, senseless and erratic, if not bizarre." Nevertheless, the doctor concluded that "this does not necessarily excuse the behavior of Mr. Poole or his companion but does indicate the lack of judgment and insight one might expect from an intoxicated and drug dependent individual."

As to the October 23, 2009 incident involving the prescription, Dr. Pandina stated in his report: "It appears that Mr. Poole obtained a prescription from an emergency room visit for Vicodin to sustain his dependence and then enhanced that prescription by altering the document for the purposes of increasing the dose." Dr. Pandina believed that Poole's behavior was "indicative of poor judgment and reasoning even for . . . drug seeking individuals." The doctor concluded that Poole's impaired thinking and judgment related to his level of dependence.

Dr. Pandina summarized his conclusions as follows:

I conclude, to a reasonable degree of scientific certainty, that the subject's state of drug dependence, chronic intoxication and related degree of impairment were major factors contributing to the subject's behavior during the period spanning June 13 through October 23, 2009. His drug dependence was a consequence of the medication regime necessitated by his work related injury. It is probable that Mr. Jason Poole was acutely intoxicated as a result of narcotic medications and alcohol during the time of, and subsequent to, the alleged robbery of the purse. Further, his actions in altering the prescription for Vicodin on October 23, 2009 were indicative of significant impairments in cognitive and emotion domains of functioning including reasoning judgment and emotional evaluation and expression fueled by his need to sustain his dependence on narcotic analgesics. . . . In my opinion, these factors should be weighed carefully in adjudicating the outcome of the outstanding charges. Finally, it is my opinion that Mr. Poole should remain in treatment and participate in appropriate support groups such as AA/NA to sustain his sobriety for the foreseeable future.

On August 17, 2009, the DOC served Poole with a preliminary notice of disciplinary action in which they proposed to remove him from employment for conduct unbecoming an employee and other sufficient causes, such as violations of the DOC rules and regulations, including falsifying reports. The charges stemmed from Poole taking the purse from the bar, allegedly falsifying reports about that incident, and not timely notifying the DOC of the criminal charges filed against him by the North Wildwood Police Department. The DOC charges were upheld at a hearing on September 2, 2009, following which the DOC served Poole with a final notice of disciplinary action removing him from office on September 9, 2009.

On December 2, 2009, the DOC served Poole with a preliminary notice of disciplinary action proposing to terminate his employment for conduct unbecoming a public employee, other sufficient causes, and violation of the DOC rules and regulations. These charges stemmed from Poole presenting to CVS an altered prescription for Vicodin. Poole did not request a hearing, the charges were sustained, and the DOC served Poole with a final notice of disciplinary action removing him from office on December 22, 2009.

Poole timely filed appeals with the Office of Administrative Law (OAL). The appeals were consolidated on January 20, 2010. Following the hearing conducted on March 4, May 5, and May 12, 2010, the ALJ rendered his initial decision in which he concluded that Poole "committed conduct unbecoming a public employee when he altered a prescription, stole a purse, and uttered false statements to the police and his employer about those events." The ALJ affirmed the actions of the DOC, "which twice removed [Poole] from his position . . . ."

In his Initial Decision, the ALJ noted that Poole took no responsibility for his actions. The ALJ also noted that while asserting he did not change the prescription from 5/ 500 Vicodin to 7.5/500 Vicodin, Poole was "quick to point out he was a drug addict at the time."

The ALJ specifically found that the video evidence refuted Poole's claim in his report to the DOC that he took the purse because he thought it belonged to his girlfriend. The ALJ also questioned Poole's testimony that he could not recall his conduct in the Flip Flopz bar, when he had made a written and oral statement to police describing the whole thing as a mistake. The ALJ found that Poole was not credible when he testified he did not remember the incident. Similarly, the ALJ explicitly found that Poole's written and oral statements to the police were not credible. Additionally, the ALJ found that Poole's "assertion that he did not change the prescription for Vicodin to what he thought was a stronger pill, was simply incredible."

Poole filed exceptions with the CSC, and the DOC filed cross-exceptions. The CSC accepted and adopted the findings of fact and conclusion of the ALJ, as set forth in his initial decision. The CSC affirmed the DOC's action of removing Poole from office. This appeal followed.

II.

Our review of agency determinations is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We will not disturb an agency's decision unless we "find [it] to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Additionally, we give "due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility[,]" In re Taylor, 158 N.J. 644, 656 (1999), and therefore accept their findings of fact "when supported by adequate, substantial and credible evidence." Id. at 656-57. "Furthermore, it is not our function to substitute our independent judgment for that of an administrative body[, and] . . . we will not weigh the evidence, determine the credibility of witnesses, . . . draw inferences and conclusions from the evidence, or resolve conflicts therein." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

When reviewing a final agency action under the arbitrary, capricious, and unreasonable standard, we must examine whether the agency's decision conforms with relevant law; whether the decision is supported by substantial credible evidence in the record; and whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. Stallworth, supra, 208 N.J. at 194.

Poole first argues that the ALJ's findings of fact and conclusion, which the CSC adopted, were not supported by sufficient credible evidence on the record. As to the purse, Poole argues that the victim did not want to press charges and that the charges filed by the North Wildwood Police were, ultimately, administratively dismissed. He cites his own testimony and statements in which he stated that he took the purse by mistake.

As to the prescription, he again cites to his testimony that he did not alter the prescription in any way. He also cites the prescribing doctor's testimony that Hydrocodone comes in a dosage of 7.5/500. Lastly, he argues that as of the date of the ALJ hearing, he had never been arrested for altering the prescription.

The purse owner's unwillingness to press charges, and the subsequent administrative dismissal of the charges filed by the North Wildwood police, are not evidence of Poole's state of mind at the time he took the purse. Sufficient credible evidence on the record supported the charges against Poole. The video surveillance depicted Poole's "arrival at a table upon which a woman had placed a purse." Poole twice pulled the purse over to his side of the table, and each time his girlfriend pushed it back. When his girlfriend left the room, Poole took the purse and walked through the bar. He and his girlfriend then examined its contents, and drove away with it. Those facts support the conclusion that Poole knew the purse did not belong to his girlfriend. It is not our function to independently weigh the evidence, make credibility determinations, and substitute our independent judgment for that of the CSC. De Vitis, supra, 202 N.J. Super. at 489-90.

We also reject Poole's argument that there was insufficient evidence to support the conclusion that he altered the prescription. The prescribing doctor's testimony could not have been clearer: He did not write "7.5/500." According to the doctor, both the seven and the period following it were not made by him. He had never written such a prescription in his medical career. The only other people that could have altered the prescription were a nurse, the Northfield pharmacist, and Poole. On that evidence, the CSC and ALJ reasonably inferred precisely what defendant's expert assumed or was told: Poole altered the prescription to obtain a stronger dose of Vicodin.

In his second argument, Poole contends the CSC's and the ALJ's decisions were arbitrary and capricious because those decisions did not consider his involuntary intoxication as a defense to the charges. Poole asserts the defense of involuntary intoxication is available because his intoxication was not "self-induced" as that term is defined in N.J.S.A. 2C:2-8(e)(2). N.J.S.A. 2C:2-8 provides in pertinent part:

d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under the subsection must be proved by clear and convincing evidence.

e. Definitions. In this section unless a different meaning plainly is required:

. . . .

(2) "Self-induced intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime[.]

Poole argues that because he took his narcotic medicine "pursuant to medical advice" his intoxication at the time of both episodes was not self-induced. Poole's argument is flawed. In the first place, in the hours before he took the purse, Poole drank a considerable quantity of alcohol. Moreover, he offered no proof, nor was there any in the record, that his intoxication was due to his prescription medicine rather than the alcohol he had voluntarily consumed. The record was devoid of any evidence that Poole would have been intoxicated had he not voluntarily consumed alcohol. Neither the CSC nor the ALJ erred by disregarding the defense of intoxication.

We reach the same conclusion concerning the prescription. Although Poole testified that he was under the influence of Klonopin when he presented the altered prescription to the pharmacist in Vineland, the credible evidence in the record refutes his assertion. After State Troopers stopped him for driving erratically, they detained him until he was capable of driving. There is no competent evidence in the record to suggest that he was intoxicated as the result of ingesting Vicodin, Klonopin, or a combination of those medications, when he arrived at the drugstore in Vineland. There is, however, sufficient credible evidence in the record to support the contrary conclusion; namely, that he knew precisely what he was doing when he presented the altered prescription.

Having determined that Poole deliberately took a woman's purse, and attempted to obtain Vicodin after altering a prescription, the CSC upheld both the charges against Poole and his removal from office. Because the CSC's final determination was supported by substantial credible evidence on the record, we will not disturb it. Stallworth, supra, 208 N.J. at 194.

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).