IN THE MATTER OF MICHAEL GONSALVES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4080-05T54080-05T5

IN THE MATTER OF

MICHAEL GONSALVES.

__________________________________

 

Argued: October 11, 2007 - Decided October 31, 2007

Before Judges Cuff and Lihotz.

On appeal from a Final Administrative Decision of the Merit System Board, OAL Docket No. CSV-8601-02.

Charles J. Sciarra argued the cause for appellant Michael Gonsalves (Sciarra & Catrambone, attorneys; Mr. Sciarra, of counsel and on the brief; Cynthia B. Molkenthin, on the brief).

Saju C. Mathew, Deputy Attorney General, argued the cause for respondent Merit System Board (Anne Milgram, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Mathew, on the brief).

PER CURIAM

Appellant Michael Gonsalves was employed as a Custody Senior Corrections Officer for the Juvenile Justice Commission (JJC). A random drug screen detected cannabinoids in appellant's urine sample. Gonsalves was terminated from his position with the JJC. He appeals from a final decision of the Merit System Board (MSB) that found that the action of the JJC was justified. Appellant argues that the MSB improperly rejected the credibility findings of the Administrative Law Judge (ALJ) and erroneously substituted its interpretation of the record. We affirm.

Following service in the U.S. Marines, appellant enrolled in the JJC Satellite Training Academy, graduating first in his class. He commenced his employment for the JJC at the Jamesburg Training School for Boys. He then transferred to the Stabilization and Reintegration Program, commonly referred to as Boot Camp. Gonsalves never contested that he received a copy of the JJC Random Drug Testing Policy. He also acknowledged that he was familiar with random drug testing in his former capacity as a Marine and as a casino security guard.

On May 6, 2002, Gonsalves was notified that he had been selected for drug testing and should report to submit a urine sample before the end of the workday. On that day, Assistant Chief Wimson Crespo met with Gonsalves and instructed him to read and sign the paperwork associated with submission of a urine sample. The paperwork included a medication information form and a donor notification form.

The donor notification form included appellant's name, Social Security number, and a summary of the drug testing policy. Gonsalves was informed that an officer who tests positive for a controlled dangerous substance will be dismissed from employment. Appellant was given the opportunity to supply a second sample for retesting, if necessary, but he declined.

The medication information form required a thumbprint and disclosure of all medication taken by appellant. Gonsalves disclosed that he takes Xanax (an anti-anxiety drug), Ambien (a sleep aid), and Lisinopril (a blood pressure drug). Although the form noted that each drug was taken daily, Gonsalves testified that he took Xanax only on an as-needed basis. Appellant also disclosed that he took various over-the-counter medications, including Advil and ibuprofen, daily.

Prior to providing the urine sample, Gonsalves washed his hands as directed by Crespo. Then, he opened a factory-sealed specimen bottle and wrote in pencil his Social Security number, date, time and Crespo's name on a separate label and placed it inside the specimen bottle. The number assigned to appellant's sample was 050254. Gonsalves and Crespo proceeded to the men's room where appellant voided into the specimen bottle and sealed the bottle with its tamper-proof security lid. Then, Gonsalves and Crespo returned to the drug testing room and both signed a continuity of evidence form. This form included appellant's name, Social Security number, date, time, location, and a notation of the temperature of the specimen. Gonsalves also acknowledged that the specimen collection process complied with the multi-step procedure prescribed by the drug testing policy.

Gonsalves left and Crespo placed the specimen in a cooler with several other specimens collected that day. Crespo transported the specimens to his office in Bordentown. On arrival, Crespo signed the Internal Affairs master log book and placed appellant's urine specimen in a locked refrigerator to which only he and a few other Internal Affairs investigators had the key. The master log sheet entry for May 6, 2002, reveals that the specimen was placed in the secure refrigerator at 3:15 p.m.

Each specimen stored in the locked refrigerator in the Bordentown office is logged into the Internal Affairs log book. Crespo completed the top portion of a specimen submission form and placed the form in the log book. He testified that urine specimens were stored in the refrigerator for a day or two until transported to the laboratory for analysis. On May 8, 2002, Investigator Eric Cloud removed appellant's urine specimen from the locked refrigerator and verified that the identification number and Social Security number listed on the continuity of evidence form matched the information on appellant's urine specimen container and medication information form. Cloud signed the continuity of evidence form and transported appellant's specimen from the locked refrigerator in Bordentown to the laboratory.

Appellant's specimen was analyzed on May 8, 2002. The analysis revealed the presence of 41 nanograms per milliliter of Carboy-9-Delta THC in his urine, more than four times the maximum permitted level of 10 nanograms per milliliter. When a specimen tests positive for a controlled dangerous substance, the sample results and medication form are presented to a medical review officer to determine if the medication used by the tested employee may account for the positive results.

Once notified of his positive test result, appellant's physician wrote to the JJC. The physician contended that the medications used by appellant and his frequent ingestion of poppy seed bagels created a false positive. Dr. Havier, a forensic toxicologist and the Assistant Director of the New Jersey State Toxicology Laboratory, advised the JJC that none of appellant's medications contributed to the positive result. He noted that the "screening procedure relies on the high specificity of a antibody for only the major metabolite of marijuana. The screening result is then confirmed by a completely different analytical procedure called gas chromatography/mass spectrometry (GC/MS). This second technique specifically identifies and quantifies the major metabolite of marijuana based on its chemical structure." Dr. Havier also rejected the notion that poppy seeds would produce the metabolite of marijuana.

Dr. Havier described the laboratory procedures and containers used for testing and collecting specimens. The specimen containers are tamper-proof. When containers are initially received at the laboratory, they are examined for any marks that indicate tampering or suggest an attempt to either introduce to or remove something from the urine specimen container. The specimen container labels are also examined to ensure that there are no identifying characters aside from the individual's Social Security number written in pencil.

Next, a special instrument is used to cut the top off the specimen bottle, and a small sample of the urine is placed in a vial and then into the screening instrument, called an AxSYM. Once in the AxSYM, the specimen is tested using Fluorescence Polarization Immunoassay (FPIA) technology, which tests the specimen for the presence of eight drugs (amphetamine-methamphetamines, barbiturates, benzodiazepines, cocaine, cannabinoids, methadone, phencyclidine, and opiates). The FPIA test on appellant's urine sample revealed the presence of cannabinoids, specifically, 111.85 nanograms per milliliter of the cannabinoid metabolite in appellant's urine. Dr. Havier noted that any reading over 20 nanograms per milliliter for the metabolite of cannabinoid is a positive reading; therefore, appellant's results exceeded by five times the threshold level. The doctor explained that a metabolite is the leftover result after one's body processes a drug. He stated that when an individual consumes cannabinoids, the body changes the pure parent drug into a metabolite, Carboxy-9-Delta THC.

Dr. Havier testified that once the AxSYM FPIA instrument detects the presence of drugs in the specimen, the sample is tested again by a separate instrument called the Gas Chromatography Mass Spectrophometer (GCMS) to confirm the positive result. The doctor stated that the GCMS testing involves taking an aliquot, or chemical extraction, of the urine from the original specimen container.

Appellant challenged the test result. Following an internal hearing, the JJC issued a final notice of disciplinary action to terminate appellant's employment. Gonsalves requested a hearing and the matter was transmitted to the Office of Administrative Law (OAL). Following several days of hearings, the ALJ issued an Initial Decision questioning the credibility of the appointing authority's witnesses concerning compliance with the continuity of evidence requirements and recommending reinstatement of Gonsalves to his position with the JJC.

The MSB reviewed the Initial Decision but did not accept and adopt the findings of fact and conclusions of law of the ALJ. Rather, the MSB found that the record contained substantial credible evidence to establish the chain of custody of appellant's urine specimen. The MSB also rejected the ALJ determination that the specimen containers are not the containers specified by the Attorney General Guidelines for random drug screens. The MSB further found the ALJ's consideration of Internal Affairs work schedules irrelevant, the ALJ's credibility determinations unsupported by the record, and incontrovertible evidence that appellant's specimen tested positive for cannabinoids.

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 MSB'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). Therefore, 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." In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). 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.

This was a disciplinary case against a Civil Service employee; therefore, the appointing authority bore the burden of proof. N.J.A.C. 4A:2-1.4(a). In a contested case that has been referred to the OAL, the MSB is not free to reject findings of fact as to issues of credibility at will. N.J.S.A. 52:14B-10(c) states, in pertinent part, that "[an] agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious, or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." See also, N.J.A.C. 1:1-18.6(c); Cavalieri v. Bd. of Trs. Pub. Employees Ret. Sys., 368 N.J. Super. 527, 533-34 (App. Div. 2004).

The MSB evaluation of an Initial Decision is also guided by the law governing certain issues. Here, the MSB was required to recognize that in the case of a termination of employment due to the presence of banned substances, the appointing authority carries the burden of proof that the chain of custody of the specimen is unbroken. In re Lalama, 343 N.J. Super. 560, 567 (App. Div. 2001). The legal standard for proving chain of custody is a reasonable probability that no tampering has occurred. State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968). Generally, this threshold is met if the trier of fact finds by a reasonable probability that evidence has not changed in any important respect. Ibid. Reasonable probability does not require proof of an uninterrupted chain of possession or "negat[ing] every possibility of substitution or change in condition." Id. at 27.

In Lalama, we emphasized that chain of custody evidence should be admitted and considered reliable if it demonstrates a reasonable probability that the sample has not been altered in any important respect. 349 N.J. Super. at 565-66. See also State v. Brunson, 132 N.J. 377, 393-94 (1993). A corollary to this rule is that one or two departures from stated policy do not require rejection of the chain of custody evidence, if the cited departures do not suggest a real prospect for substitution. Here, the MSB found that the ALJ focused on departures from the Attorney General's Guidelines for random drug screens that did not and could not raise a real possibility of substitution of the specimen. We agree.

The ALJ highlighted discrepancies on the continuation of evidence forms regarding samples other than appellant's specimen. The record demonstrates clearly that the urine sample taken from appellant on May 6, 2002, was the very sample delivered to the laboratory on May 8, 2002, and analyzed that same day. Furthermore, the ALJ ignored a provision of the Attorney General Guidelines that specifically allowed refrigeration of the specimen overnight or for a brief period, if the specimen cannot be delivered to the laboratory on the day of collection. The ALJ also rejected the testimony by Dr. Havier that the specimen containers provide significantly more security and assurance of non-tampering than the container prescribed in the Attorney General Guidelines. Finally, the ALJ failed to acknowledge appellant's testimony that he did not take Xanax every day. The ALJ, therefore, did not appreciate that the levels of that medication found in the analysis were consistent with the intermittent use described by appellant. Thus, even though there may have been some discrepancies with other specimens and the container did not conform to the precise terms of the Attorney General's Guidelines, those discrepancies did not undermine the reasonable probability that the specimen had not been altered in any important respect between collection and analysis.

We are also satisfied that the MSB did not reject the ALJ's findings and credibility assessments summarily. To the contrary, the decision document issued by the MSB contains a comprehensive analysis of the record and a reasoned explanation of the basis for its decision. The MSB's findings of fact are well-supported by the record and its application of the law governing the central issue in this case, the chain of custody of the specimen, is correct. We, therefore, affirm the March 23, 2006 order affirming the action of the JJC terminating appellant's employment.

 
Affirmed.

"In the event a specimen cannot be submitted to the laboratory within one working day of its collection, the law enforcement agency shall store the specimen in a controlled access refrigerated storage area until submission to the State Toxicology Laboratory."

(continued)

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A-4080-05T5

October 31, 2007