WILLIAM BURGESS v. CUMBERLAND COUNTY DEPARTMENT OF CORRECTIONS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM BURGESS,

Plaintiff-Appellant,

v.

CUMBERLAND COUNTY DEPARTMENT

OF CORRECTIONS,

Defendant-Respondent.

December 30, 2015

 

Submitted November 4, 2015 Decided

Before Judges Hoffman, Leone and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket L-0418-14.

Alterman & Associates, attorneys for appellant (Matthew R. Dempsky, on the briefs).

Theodore E. Baker, Cumberland County Counsel, attorney for respondent.

PER CURIAM

In this appeal we address the issue of whether evidence arising out of an arrest, charge, and prosecution prohibited by the Overdose Prevention Act (OPA), N.J.S.A. 2C:35-31, can otherwise be admitted in civil disciplinary proceedings against a public employee. We conclude that the evidence is admissible, and therefore affirm the Law Division's August 1, 2014 decision dismissing plaintiff's complaint, as modified in this opinion.

I.

On May 15, 2013, officers of the Vineland Police Department responded to a 9-1-1 call seeking medical assistance for plaintiff, who had overdosed on heroin at a local hotel. Upon arrival at the scene, the officer found plaintiff who was unconscious, with a needle still in his arm along with a woman identifying herself as plaintiff's "ex-fiancé." Shortly thereafter, paramedics arrived at the scene. Plaintiff was resuscitated and transported to a local hospital, where he made a full recovery.

Plaintiff was subsequently charged with being under the influence of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(b). This charge was ultimately dismissed in light of the newly-enacted OPA, N.J.S.A. 2C:35-31,1 which immunizes persons from criminal liability who seek medical assistance for a drug overdose.

At the time of his heroin overdose, plaintiff was employed as a corrections officer by defendant Cumberland County Department of Corrections. On May 17, 2013, defendant initiated disciplinary proceedings against him concerning the overdose incident, charging him with conduct unbecoming a public employee. Following a departmental hearing, the disciplinary charge was upheld, with plaintiff receiving a penalty of indefinite suspension. Plaintiff filed an appeal of this determination with the Civil Service Commission, which transferred the matter to the Office of Administrative Law (OAL) as a contested case.2

During these proceedings, plaintiff filed a petition, in the Criminal Part, to expunge the criminal records maintained in connection to his drug case. This petition was denied without prejudice in light of the pending administrative proceedings against plaintiff. See N.J.S.A. 2C:52-14(d).

On June 9, 2014, plaintiff filed a verified complaint and order to show cause in the Law Division, seeking an injunction barring admission of evidence of his overdose incident during the OAL proceedings. The administrative proceedings were stayed pending the outcome of the case under review. At an August 1, 2014 hearing, the court dismissed plaintiff's complaint and terminated the stay of the OAL proceedings, concluding that "the use of evidence obtained as a result of seeking medical assistance for an overdose is not barred from use in plaintiff's pending [administrative] appeal." Plaintiff now challenges this decision on appeal, arguing that the trial court erred in concluding that the OPA does not preclude evidence of his drug overdose incident during his employment disciplinary proceedings.

II.

Our review of the trial court's statutory interpretation is de novo. State v. Vargas, 213 N.J. 301, 327 (2013). When construing a statute, we first consider its plain language. State v. Toussaint, 440 N.J. Super. 526, 530 (App. Div. 2015). If we find the statutory language to be ambiguous, we then consider the legislative history and purpose of the law. State v. Gandhi, 201 N.J. 161, 176 77 (2010).

We begin with the statutory language. The OPA provides, in pertinent part

a. A person who experiences a drug overdose and who seeks medical assistance or is the subject of a good faith request for medical assistance . . . shall not be

(1) arrested, charged, prosecuted, or convicted for obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of, a controlled dangerous substance . . . .

[N.J.S.A. 2C:35-31 (emphasis added).]

The plain language of the statute provides us with all the information we need to resolve the matter before us. The OPA is specific and clear as to the scope of protection afforded to those who seek medical assistance for a drug overdose. Although the law expressly precludes arrests, charges, prosecutions, or convictions for seeking medical assistance, it does not afford immunity from civil disciplinary proceedings. Plaintiff does not contest this point, nor does he argue that the OPA is ambiguous in its terms.

Nonetheless, plaintiff argues that his disciplinary proceedings should be dismissed because subjecting public employees to disciplinary proceedings for seeking medical assistance for a CDS overdose would undermine the Legislature's intent when enacting the OPA. Although the plain language of the statute before us is sufficiently clear that the OPA does not preclude evidence of plaintiff's overdose from being used against him during disciplinary proceedings, we briefly address plaintiff's argument regarding the Legislature's intent.

Fortunately, we need not speculate on what the Legislature intended when enacting the OPA, as the Legislature clearly stated its intent

The Legislature finds and declares that encouraging witnesses and victims of drug overdoses to seek medical assistance saves lives and is in the best interests of the citizens of this State and, in instances where evidence was obtained as a result of seeking of medical assistance, these witnesses and victims should be protected from arrest, charge, prosecution, conviction, and revocation of parole or probation for possession or use of illegal drugs.

[N.J.S.A. 24:6J-2 (emphasis added).]

If the Legislature intended for the OPA to protect against more than arrest, prosecution, convictions, and revocation of parole or probation, it had every opportunity to codify such a purpose. While the Legislature clearly wanted to encourage persons to seek medical attention in the event of a drug overdose, it did not state that it wanted to insulate public employees from civil discipline for drug use. We decline to rewrite the statute to include such a protection.

In his written opinion, the judge set forth other convincing reasons for rejecting plaintiff's position that the OPA should apply to plaintiff's pending civil proceedings

In the employment context, law enforcement officers are held to a higher standard of conduct than most other occupations. See In re Phillips, 117 N.J. 567, 576 77 (1990). This higher standard applies to conduct both [on] and off duty. Id. at 577. Corrections officers fall within that expected higher standard of conduct. (citation omitted). "In matters involving discipline of police and corrections officers, public safety concerns may also bear upon the propriety of the dismissal sanction." In re Carter, 191 N.J. 474, 485 (2007).

. . . .

The secreting and transporting of illegal drugs into jails and prisons is a known, persistent and serious problem which departments of corrections must face on an ongoing, daily basis. Preventing a department of corrections from being proactive by not permitting a correction officer with a heroin problem from working at a jail or prison could have serious security and safety consequences for the officer himself, other staff and inmates. Plaintiff essentially asks the court to do just that.

The court deems the concerns raised by defendant to be legitimate and serious. They justify invoking disciplinary proceedings against correction officers who use or possess narcotics while on or off duty.

Plaintiff also asserts that, because the OPA rendered his drug-related arrest unlawful, "any evidence stemming [therefrom] should be viewed as fruit[] of the poisonous tree." This argument, however, ignores our long-standing policy of declining to extend the exclusionary rule to civil proceedings. See, e.g., In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 95 (App. Div. 2007), aff'd, 197 N.J. 563, 586 87 (2009); see also Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 2019, 141 L. Ed. 2d 344, 351 (1998). Accordingly, the fact that the OPA rendered plaintiff's arrest illegal has no bearing on the issue before us.

To the extent that plaintiff argues that admission of evidence of his drug overdose violates N.J.R.E. 401 and 403, we find such arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In sum, we conclude that the OPA does not immunize public employees who seek medical assistance in the event of a drug overdose from being subject to civil disciplinary proceedings. We note, however, that defendant's notice of disciplinary action did reference that defendant was "arrested." As plaintiff's arrest, charge, and criminal prosecution was clearly prohibited by the OPA, we hereby modify the trial court's decision to specifically provide that the fact of plaintiff s arrest, charge, and criminal prosecution shall be excluded, and entitled to no consideration, during the OAL proceedings or any other future civil proceedings. However, evidence of plaintiff s drug possession and use, even if uncovered as a result of plaintiff s arrest and prosecution, shall not be excluded.

Affirmed as modified.


1 N.J.S.A. 2C:35-31 became effective May 2, 2013.

2 On November 14, 2013, defendant initiated further disciplinary proceedings concerning the May 15, 2013 overdose incident, but seeking removal rather than indefinite suspension.


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