IN THE MATTER OF BRUCE NORMANAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5633-03T15633-03T1
IN THE MATTER OF
CITY OF ASBURY PARK.
Argued October 6, 2005 - Decided January 26, 2006
Before Judges Wefing, Wecker and Graves.
On appeal from a Final Administrative Decision
of the Merit System Board, Docket No. 2003-2822.
Michael R. Hobbie argued the cause for appellant
(Hobbie, Corrigan, Bertucio & Tashjy, attorneys;
Mr. Hobbie, of counsel and on the brief).
Steven S. Glickman argued the cause for respondent
City of Asbury Park, (Ruderman & Glickman,
attorneys; Mr. Glickman, of counsel and on the
Peter C. Harvey, Attorney General, attorney for
respondent New Jersey Merit System Board (Pamela N.
Ullman, Deputy Attorney General, on the statement
in lieu of brief).
Bruce Norman appeals from a final determination of the Merit System Board (the Board) issued on June 10, 2004, upholding a decision to remove him from the City of Asbury Park Police Department after his random drug test sample tested positive for cocaine. The Board concluded that the provisions of the Attorney General's Law Enforcement Drug Testing Policy (AG Guidelines) were not strictly adhered to by Asbury Park, but that the deviations from the procedures outlined by the AG Guidelines "did not amount to violations of the appellant's right to due process or call into question the validity of the positive test result[s]."
On appeal, Norman presents the following arguments:
RESPONDENT'S FAILURE TO COMPLY WITH THE NEW JERSEY ATTORNEY GENERAL'S DRUG TESTING GUIDELINES WARRANTS A REVERSAL OF THE MERIT SYSTEM BOARD'S DECISION.
ASBURY PARK'S FAILURE TO COMPLY WITH THE ATTORNEY GENERAL'S GUIDELINES REQUIRES THAT SERGEANT NORMAN'S DRUG TEST BE VOIDED, NULLIFIED, AND SUPPRESSED.
THE MERIT SYSTEM BOARD IGNORED AND FAILED TO CONSIDER THAT SERGEANT NORMAN PASSED AN INDEPENDENT DRUG TEST.
ASBURY PARK'S DEVIATION FROM THE ATTORNEY GENERAL'S GUIDELINES IS PART OF A PATTERN OF DISREGARD FOR THE ATTORNEY GENERAL.
RESPONDENT'S ALLEGED COMPLIANCE WITH FEDERAL STANDARDS IS IRRELEVANT.
RESPONDENT FAILED TO PROVIDE ANY SUPPORT FOR ITS PROPOSITION THAT THE ATTORNEY GENERAL'S GUIDELINES DO NOT HAVE TO BE FOLLOWED.
After reviewing the record in light of the arguments advanced on appeal, we conclude that Norman's contentions are without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(1)(D), (E). The record contains ample support for the findings of fact and conclusions of law adopted by the Board. See Watson v. City of East Orange, 175 N.J. 442, 444 (2003) (finding that under limited standard of review, no basis existed to overturn Merit System Board's determination). We therefore affirm with only the following comments.
At the time of his termination, Norman was a sergeant in the Asbury Park Police Department. He had been a member of the police department for approximately fifteen years, and there is no dispute that Norman was "a good police officer."
On April 14, 1992, Norman acknowledged receiving a document entitled "Asbury Park Division of Police Rules and Regulations," which prohibited members of the police department from taking "any drugs that are not prescribed and necessary for their health at any time." In April 1999, Norman also received a copy of the Asbury Park Department of Public Safety Substance Abuse Policy which included a provision for random drug testing effective April 26, 1999.
The City of Asbury Park contracted with Prevention Specialists, Inc. (PS) to conduct their random drug testing. On June 13, 2002, Norman participated in a random drug test, and his test results were positive for the presence of cocaine. Following a departmental hearing, Norman was served with a Final Notice of Disciplinary Action immediately removing him from employment for violating Asbury Park's rules regarding insubordination, use of alcoholic beverages and drugs, and physical fitness for duty.
Norman filed an administrative appeal with the Department of Personnel of the Merit System Board, which referred the matter to the Office of Administrative Law as a contested case. Following a hearing, Administrative Law Judge Douglas H. Hurd determined that Norman's drug test results were reliable and valid. The Administrative Law Judge rejected Norman's argument that the test results should be suppressed because the appointing authority failed to adhere to the AG Guidelines and declined to suppress Norman's test results. Judge Hurd found that the evidence "overwhelmingly establishes that the testing performed by the Department was reliable and valid. There was no credible evidence to indicate that the integrity of the sample was not maintained, or that the chain of possession was interrupted."
Jean Denes, President of PS, was one of the witnesses to testify at the hearing before the Administrative Law Judge. When asked to provide her qualifications, Denes testified:
I've been doing this for 30 years. My education is I have a Bachelor's Degree in Sociology, Master's Degree in Public Administration, a certified employee assistant professional, certified by the New Jersey Licensure Board as a social worker, and also completed the certification and exam for a substance abuse professional . . . . I worked for the State Department of Health, Division of Narcotics and Drug Abuse Control. I . . . worked in Chelsea School, [a] residential program for adolescents, was CEO and director of Discovery Institute for Addictive Disorders. I worked for the State Prevention Department, president of the New Jersey Association for the Prevention and Treatment of Substance Abuse, Advisory Board for the Governor's Council for a Drug Free Workplace. I'm currently on the advisory board for the Rutgers Center of Alcohol and Drug Studies, National Board Therapeutic Communities of America. I guess that's it.
When she was asked to explain how her company protects the integrity of random urine drug samples, Denes testified that the individuals who provide the sample are in the presence of the sample at all times until the sample is sealed in a lab bag: "They sign off that it's being sealed with forensic evidence tape and then placed in the lab bag, which is hermetically sealed and then sent via bonded courier, and they sign the chain of custody form which attests to that." She also testified that the lab bag "conforms with all the Federal Workplace Drug Testing Guidelines," and the two vials for the primary specimen and a secondary specimen, the seals, and the laboratory bag are all part of a self-contained kit routinely used by PS for the collection of urine specimens.
According to Denes, the donor provides a sample that is then split into two samples and sealed in the presence of the donor, who initials and dates each of the seals, before the samples are placed in the lab bag and sealed again. The record includes the following colloquy:
Q. Just so I understand the process, the specimen's voided into the cup, and then, it's split into two samples by that person?
A. Yes. Yes, by the collector in the presence of the donor, the individual.
Q. And then, is the seal put on in the presence of the donor?
A. Yes. Yes. And they sign and initial -- they date and initial the seal.
Q. Who signs and dates it, the donor?
A. The donor.
Q. And how many seals do they put on it?
A. One seal on each and the seal on the bag. And if any of those are breached, the laboratory will not test it.
Q. Now, they're put into the bag, and then, the donor puts the seal on the bag? And does he or she sign the bag?
A. Oh, yes. They seal all the seals. The bag is initialed itself. There are two seals, one on A and one on B.
Q. But if the bag was breached --
A. The laboratory would not test it.
Q. But how would the lab know? Couldn't somebody just seal it back up and put a different seal on it?
Q. Why not?
A. Because it's forensic evidence sealed, so that if it were breached, it can't --
Q. Well, couldn't they just take the two vials and put them in another bag and then seal it?
A. They wouldn't have the initial.
Q. Signature, okay. Okay.
When asked whether the procedures used by PS were as reliable as the procedures outlined by the AG Guidelines "for protecting the integrity of the sample," Denes stated that the Federal Guidelines minimize any opportunity for tampering:
Because both samples are sealed together. They're signed off together. They remain together. So, one's not being held in one site and another one at another site. They're collected at the same time. They're sealed at the same time. They're both sent to the same laboratory where one is then analyzed according to [immunoassay] and then confirmed according to GCMS process and then, medical review.
Q. The laboratories you use for samples, how do you choose those labs?
A. They're all Federally certified SAMHSA [Substance Abuse and Mental Health Services Administration] certified. Those are Federal guidelines that they have to follow.
Based on its independent evaluation of the record, the Board accepted the findings and conclusions of the Administrative Law Judge and his recommendation that the removal be upheld. In his exceptions to Judge Hurd's decision, Norman argued, as he does now, that the random drug test administered to him on June 13, 2002, must be "voided, nullified, and suppressed" because the appointing authority and PS failed to strictly adhere to the AG Guidelines. The Board, however, determined that Norman had violated the Asbury Park Police Department's substance abuse policy and that termination was the appropriate penalty:
In examining the differences between the random drug testing procedures utilized by the City in the instant matter and the procedures outlined in the AG Guidelines, the Board finds that deviations from the AG Guidelines did not amount to violations of the appellant's right to due process or call into question the validity of the positive test result[s]. In fact, the appellant makes no argument that any of the deviations from the AG Guidelines in any way affected the reliability and validity of his positive test results. Moreover, in 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 a federally approved laboratory for analysis. Following a positive test result, the confirmation of that positive test result using gas chromatography/mass spectrometry, and the review and confirmation of that result by a medical review officer, the appellant's split sample was sent to a second federally approved laboratory for analysis. The appellant's split sample also tested positive for cocaine. The procedure employed by the City afforded the appellant the necessary due process and assurance that the test results produced were reliable. Accordingly, while the Board does not in any way condone the City's failure to adhere to the AG Guidelines, the Board agrees with the ALJ's conclusion that the appointing authority has proven the charges against the appellant.
With regard to the penalty, it is clear that drug usage cannot be tolerated in a law enforcement officer . . . . Accordingly, the Board concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld.
Norman also contends that both the Board and the Administrative Law Judge improperly failed to consider the fact that he tested negative for the presence of cocaine when his personal physician subsequently submitted his urine sample to Quest Diagnostics. Norman asserts that "[h]ad [he] been using said illegal CDS, he would not have had negative urine tests within days of his original test." Norman has not provided any support for this assertion. Cocaine can be detected in urine between two and five days after the last use. See Rawlings v. Jersey City Police Dep't, 133 N.J. 182, 202 (1993) (O'Hern, J., dissenting) (citing Kurt M. Dubowski, Drug-Use Testing: Scientific Perspectives, 11 Nova L. Rev. 415, 530 (1987) (containing table entitled "Typical Duration of Drug Detectability in Urine After Last Use")); see also Mark A. Rothstein, Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law, 63 Chi.-Kent L. Rev. 683, 695 (1987) (containing table entitled "Approximate Duration of Detectability of Selected Drugs in Urine").
In this case, Norman provided the original sample, which tested positive for cocaine, on June 13, 2002. He gave the sample that tested negative to his doctor seven days later on June 20, 2002. If Norman had used cocaine on or before June 13, 2002, it may not have been detected in his urine on June 20, 2002. Accordingly, we find Norman's argument unpersuasive.
Our role in reviewing the final decision of an administrative agency is limited. When reviewing the Merit System Board's decision, we do not disturb the Board's ruling unless we find that the Board's action was arbitrary, capricious, or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). A presumption of validity attaches to the agency's decision, which will be sustained unless it is "arbitrary, capricious, or unreasonable [or] . . . . [C]learly inconsistent with its statutory mission or with other state policy." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); see also Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 382-83 (2002); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In this case, the decision by the Board "could reasonably have been reached on sufficient credible evidence present in the record." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Accordingly, the decision is not arbitrary, capricious, or unreasonable.
January 26, 2006