JOHN BARRY v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN BARRY,

Plaintiff-Appellant,

v.

PORT AUTHORITY OF NEW YORK

AND NEW JERSEY,

Defendant-Respondent.

_________________________________

December 16, 2016

Telephonically argued January 28, 2016 - Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2648-12.

Ty Hyderally argued the cause for appellant (Hyderally & Associates, P.C., attorneys; Mr. Hyderally and Francine Foner, on the briefs).

Cheryl N. Alterman argued the cause for respondent (Darrell Buchbinder, General Counsel, attorney; Ms. Alterman and Paulo C. Alves, on the brief).

The opinion of the court was delivered by

Nugent, J.A.D.

Following binding disciplinary arbitration, an arbitrator upheld the termination of plaintiff John Barry's employment as a police officer at the Port Authority of New York and New Jersey (the Authority) based on his testing positive for amphetamines on a random drug screen. Plaintiff filed a Law Division action seeking to set aside the arbitration award. The trial court granted summary judgment to the Authority and dismissed plaintiff's complaint with prejudice. He appeals. We affirm.

This action's procedural history is not complex. Plaintiff had been employed by the Authority as a police officer for nine years when, on August 23, 2011, the Authority randomly selected him, among others, to undergo drug testing. His urine sample tested positive for amphetamines. The following month, on September 19, 2011, the Authority served him with disciplinary charges for violating the Authority's Public Safety Department's Drug Policy and Procedures. Following a three-day arbitration hearing on the disciplinary charges, the arbitrator issued an award upholding the Authority's proposed termination of plaintiff's employment. On March 12, 2012, the Authority's Director of Human Resources notified plaintiff his employment was terminated effective February 24, 2012, the date of the arbitration award.

Two months after receiving notice of his discharge from employment, on May 23, 2012, plaintiff, representing himself, filed a six-count complaint in the Law Division seeking to vacate the arbitrator's award. The Authority answered and plaintiff retained counsel, who filed an amended complaint. After discovery ended, the Authority moved for summary judgment. The trial court conducted a plenary hearing to afford the parties the opportunity to present extrinsic evidence concerning the meaning of certain provisions of the Authority's drug screening policy. Thereafter, the trial court granted summary judgment to the Authority. Plaintiff filed this appeal.

These are the facts viewed in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). Plaintiff became employed by the Authority in 2002. During his employment, he was a member of the Port Authority Policemen's Benevolent Association (PBA). In 2011, the PBA and Authority were parties to a Memorandum of Agreement (MOA), which contained, among other things, a negotiated drug testing policy and procedure (the policy) applicable to Authority police officers.1

According to the policy's preamble, the Authority and PBA mutually intended "to [e]nsure that any individual subject to [the] Agreement who is engaged in the illegal or unauthorized use of drugs (as defined herein) shall be separated from employment with the . . . Authority[.]" The policy authorized the Authority to administer screening tests to detect the presence of certain enumerated drugs, including amphetamines, in three instances: (1) reasonable suspicion a PBA member was under the influence or engaged in the illegal or unauthorized use of enumerated drugs; (2) on a random basis, without advance notice; and (3) pursuant to a rehabilitation opportunity agreement. The Authority and PBA agreed in the policy "to be bound by 49 C.F.R. Part 40, subpart A General with respect to drugs only, and subpart B Drug Testing."2

According to the policy: "[t]ermination is the only penalty for a member who receives a verified positive drug test, if the charge is sustained in a disciplinary action . . . ." Disciplinary proceedings were to be conducted by an arbitrator, who was limited to deciding whether: (1) there was a fatal flaw in the testing procedures that resulted in positive drug test results; (2) the member refused to cooperate; (3) the Authority committed any serious and material violations during the course of the drug testing process; and (4) the Authority had reasonable suspicion to require a member to submit to a "reasonable suspicion" drug test.

The cutoff level for determining whether a sample revealing amphetamines should be designated positive was initially 1000 ng/ml. This cutoff level was modified prior to plaintiff's drug screen from 1000 ng/ml to 500 ng/ml for the initial threshold and from 500 ng/ml to 250 ng/ml for a confirmation test.

Appendix M explicitly states, "[t]he arbitrator may not consider any mitigating circumstances . . . in determining whether a member should be disciplined for violating the Drug Testing Policy and Procedures." The parties to the MOA agreed the arbitrator's decision would be final and binding. Additionally, the parties to the MOA agreed the disciplinary procedures provided in Appendix M "are the only procedures for a charge of a violation of the provisions of this Drug Testing Policy and Procedures. Specifically, the parties agree that the [grievance and arbitration provisions otherwise contained in the parties' MOA] do not apply to violations of the Drug Testing Policy Procedures."

On August 23, 2011, plaintiff and others were selected for random drug screening and plaintiff's urine sample tested positive for methamphetamine. When the Authority sought to terminate plaintiff's employment, the disciplinary charges were submitted to binding disciplinary arbitration in accordance with the MOA, Appendix M. Following three days of hearings, the arbitrator determined plaintiff's employment should be terminated.

During the arbitration, the Authority presented five witnesses: (1) Joanne Brooks, the primary nurse and manager of the drug and alcohol testing program at All Metro Health Care, the agency under contract with the Authority to conduct urine collections for drug screening; (2) Susan Mills, the Operations Director for Quest Diagnostics Laboratory in Norristown, Pennsylvania, a federally certified drug testing lab; (3) Dr. Xialoing Li, a certified Medical Review Officer (MRO); (4) Lieutenant Robert Greff who served as the "superintendent designated for the drug testing program"; and (5) Dr. Howard Fisher, the Authority's Chief Medical Officer. Plaintiff presented the testimony of a single witness, David John McAusland, the PBA's General Counsel.

All Metro Health Care's primary nurse and drug and alcohol testing program manager testified in detail about the procedures for collecting urine samples for random drug tests. She also testified about collecting plaintiff's urine sample on August 23, 2011.

The Operations Director for the Employer Relations Laboratory of Quest Diagnostics testified about the lab's use of gas chromatography/mass spectrometry testing, the testing of plaintiff's urine specimen, and the positive results on the primary and split samples.3 Although she could not estimate the quantity of the substance consumed based on the concentration levels found in plaintiff's urine, she acknowledged Adderall was one possible source of the amphetamine detected in his test.

Dr. Xialoing Li, an MRO, testified she interviewed plaintiff after reviewing the documentation of his positive screen 727 ng/ml of amphetamines and determining there were no mistakes in the documentation. The doctor informed plaintiff he tested positive for amphetamines, gave him copies of the custody and control forms, and explained the verification process. Next, Dr. Li reviewed a letter from plaintiff's doctor and a list of medications and vitamins he took on a regular basis. She asked plaintiff to return the next day and bring every bottle of medication he had ingested during the two weeks before the drug test, including over-the-counter medication and supplements.

Plaintiff returned the next day. Dr. Li reviewed an MRO checklist and examined plaintiff's prescription and over-the-counter medicine, as well as vitamins and supplements. Nothing plaintiff presented provided a legitimate medical explanation for the positive drug screen. Consequently, Dr. Li verified his drug screen was positive, advising plaintiff and Dr. Fisher of her conclusion. Dr. Li also informed plaintiff he had the right to request a split specimen test, which he later requested. The split specimen test confirmed the primary test result, namely, plaintiff tested positive for amphetamines.

By the time the disciplinary arbitration hearing began, plaintiff had informed personnel at the Authority he believed he had inadvertently ingested an Adderall pill prescribed for his wife, which she mistakenly mixed with medication he was taking. According to Dr. Li's arbitration testimony, under 49 C.F.R. 40, a donor's accidental ingestion of Adderall was not a legitimate medical explanation for the positive test results.

During cross-examination, Dr. Li said she did not provide plaintiff with the actual MRO checklist. She did, however, explain to him the verification process and that "one of the purposes of the . . . process was to try and figure out if there was a legitimate source for the amphetamine . . . ." Although the MRO checklist mentioned only an "alternate" medical explanation, according to Dr. Li, she always explained to donors that she was looking for a "legitimate" medical explanation. Dr. Li testified she was not required to use a checklist. Dr. Li further testified that plaintiff had sixty days to amend the information provided in his interview. However, she did not recall advising him of this sixty-day window, and the MRO checklist contained no explanation of the same.

Lieutenant Robert Greff was employed by the Port Authority and was a "superintendent designated for the drug testing program." In this capacity, he served as a liaison between the Office of Medical Services (OMS) and officers during random drug testing procedures. He also oversaw the random drug test selection process. He testified that on August 25, 2011, Dr. Fisher telephoned the Lieutenant and advised him plaintiff's urine sample had tested positive. Dr. Fisher requested to speak to plaintiff. When Lieutenant Greff attempted to reach plaintiff, he learned plaintiff was on vacation.

When plaintiff returned from vacation, Lieutenant Greff called to notify plaintiff of a discrepancy with his drug test. Lieutenant Greff advised plaintiff to speak with Dr. Li. On September 7, 2011, and after plaintiff met with Dr. Li at the OMS, he told the Lieutenant he was returning the next day with his prescriptions and their containers. The next day, plaintiff returned with his prescriptions and medication containers, but they did not reconcile the test results.

Upon receiving this information from Dr. Fisher, Lieutenant Greff notified his commanding officer, Captain Ferrigno, who accompanied him to the OMS. They met plaintiff and escorted him into a waiting room, where the Captain "explained the protocol for a positive drug test, and [advised plaintiff he] was going to be administratively suspended." The Captain and Lieutenant relieved plaintiff of his badge and identification and later retrieved plaintiff's service weapon from his gun locker.

According to Lieutenant Greff, the Captain also advised plaintiff to speak with a PBA representative who could answer questions and "look out" for [plaintiff's] interests. While waiting for a PBA representative, plaintiff asked to speak with Lieutenant Greff "off the record." He told the Lieutenant he took various medications and supplements. Additionally, his wife took various medications and some of her medication looked similar to his. He and his wife laid out their medications the night before taking the required doses the next morning. Plaintiff believed he may have accidentally handled or ingested his wife's medication. Based on plaintiff's comments, Lieutenant Greff advised plaintiff to convey this information to Dr. Li. He then left plaintiff to speak with the PBA representative.

Dr. Howard Fisher, the Authority's chief medical officer in 2011, explained all drug test screening must comply with the MOA as well as 49 C.F.R. 40. He noted the DOT occasionally changed their cutoff levels and made amendments to the required process. When the DOT made any such changes, his office would "sen[d] a letter and a copy of the changes [by certified mail, return receipt requested] to the union presidents[, including] . . . the PBA president[.]" The doctor identified a document sent by the medical director in his office to the president of the Port Authority PBA disclosing a final rule change of the DOT, lowering the initial and confirmation test cutoff levels for amphetamines from 1000 to 500 ng/ml and from 500 to 250 ng/ml respectively.

Dr. Fisher said he reviewed all drug tests. If a test result was positive, he or one of the MROs followed the procedure set forth in 49 C.F.R. 40.

In August 2011, Dr. Fisher received documentation, including a certificate from a certifying scientist, that plaintiff's drug screen had tested positive. The doctor contacted Lieutenant Greff and requested plaintiff be instructed to attend an evaluation with Dr. Li at the medical services office. Dr. Fisher did not disclose to the Lieutenant that plaintiff's screen had testified positive, but informed the Lieutenant plaintiff needed to bring a list of his medications and prescriptions. The doctor later informed the Lieutenant plaintiff's results were confirmed positive and that a split specimen test was available.

Lieutenant Greff told Dr. Fisher plaintiff may have "inadvertently taken somebody else's medication[,]" but the doctor did not record this in his notes because plaintiff needed to disclose such information to the MRO, rather than the Lieutenant. Nonetheless, Dr. Fisher told Dr. Li about plaintiff consuming someone else's medication. Dr. Li responded that it did not "make a difference if he took somebody else's medication or not, he still tested positive." Dr. Fisher agreed accidental ingestion of another's medication was not a legitimate medical explanation of a positive test result.

Dr. Fisher acknowledged the MRO checklist did not contain a provision regarding the sixty-day period during which the donor could provide additional information to an MRO and confirmed the accuracy of Dr. Li's testimony that MROs are not required to use the MRO checklist during donor interviews.

Plaintiff's sole witness, David John McAusland, was the Authority PBA's General Counsel. In that role, McAusland participated in the negotiation of the MOA's terms and was thus familiar with the terms of Appendix M and the MOA as a whole. According to McAusland, in September 2011 he became involved in plaintiff's disciplinary proceedings after learning plaintiff had tested positive and needed advice regarding whether he should request a split specimen test. As plaintiff was not entitled to an attorney retained by the PBA or its funds, McAusland advised plaintiff to hire his own attorney. He also contacted the Authority on plaintiff's behalf to request a new MRO interview, which was denied.

Following the three-day hearing, the arbitrator determined no fatal flaw existed in the testing procedures resulting in the positive drug test results, and the Authority committed no serious or material violations during the course of the drug testing process. The arbitrator sustained the disciplinary charges and thereafter plaintiff's employment with the authority was terminated.

In finding no fatal flaw in the testing procedure, the arbitrator noted it was undisputed that "the process of random selection of police officers [during which plaintiff was selected] . . . was conducted in the proper manner." The arbitrator found "Brooks was meticulous in her procedure; that the actual drug testing procedures were followed correctly and completely; that it was [plaintiff's] specimen that was sent for testing and [plaintiff] tested positive for amphetamines." Lastly, the arbitrator commented plaintiff raised no concerns about the drug testing procedure.

In determining that the Port Authority did not commit any serious and material violations during the course of [plaintiff's] drug test, the arbitrator rejected plaintiff's claim the Authority improperly disclosed his confidential information. The arbitrator found that Dr. Fisher appropriately contacted Lieutenant Greff, "the designee who is to be contacted in the event of a positive test[,]" and advised him to instruct plaintiff to report to the OMS with his prescriptions and medications. Although Lieutenant Greff may have deduced plaintiff had tested positive, the arbitrator was not convinced that Dr. Fisher actually told the Lieutenant plaintiff had failed his drug test. Moreover, the arbitrator found that the Lieutenant was a person authorized to advise plaintiff to bring his prescriptions and medication to the OMS.

The arbitrator also rejected plaintiff's claim that the drug test was invalid because Dr. Li failed to accept additional information from plaintiff. Plaintiff never told Dr. Li, during his interview or afterwards, that he may have had relevant evidence concerning a legitimate medical explanation for the positive results, and in any event, because it was undisputed plaintiff did not have a prescription for Adderall, his alleged accidental ingestion of the prescription medication would not have constituted a legitimate medical explanation.

Similarly, the arbitrator was not convinced that plaintiff should have been afforded an extra sixty days to offer information regarding his alleged accidental ingestion of his wife's Adderall medication. The arbitrator explained that the relevant regulation, 49 C.F.R. 40.149(a)(3), provides for an extension of sixty days only when the MRO is provided with information "that could not reasonably have been provided" at the time of the verification decision that would have demonstrated a legitimate medical explanation. The arbitrator reiterated plaintiff's accidental consumption of his wife's Adderall medication would not have demonstrated a legitimate medical explanation.

As previously noted, plaintiff filed a Law Division action seeking to set aside the arbitration award. Following discovery, the Authority filed a summary judgment motion, which the trial court granted. Before doing so, the court conducted hearings to clarify when termination was required by the Authority and PBA's MOA, and whether reinstatement of an employee would mandate back pay. The testimony taken during the hearings made clear there was no dispute about termination for drug use.

In a thorough written opinion, the trial court explained the grounds for setting aside an arbitration award are narrow, namely, that the award was procured by undue means or the arbitrator exceeded his or her authority. The court found plaintiff had established neither ground. Significantly, the court noted, "[t]hroughout the arbitration proceeding plaintiff did not contest the validity of the drug testing process or deny that amphetamines were accurately detected in his system. Rather his contention was that he accidently had ingested . . . Adderall pills which contained amphetamine . . . ."

The court also rejected plaintiff's claims he had been denied due process because the MOA prevented him from presenting his defense of innocent ingestion. The court noted plaintiff was afforded notice and a full opportunity to be heard, including the opportunity to "defend himself and present his evidence (within the confines of the [MOA])." The court found plaintiff's position "that 'due process' is in conflict with the drug testing policy that forbids the defense of innocent ingestion (as agreed to by the parties) has no foundation in New Jersey law that plaintiff can point to."

The trial court also rejected, among other contentions, plaintiff's claims that the Authority's policy was flawed because the threshold levels of amphetamines constituting a positive test had changed; the Authority breached the MOA as to the testing procedures; the Authority violated plaintiff's right to confidentiality; and plaintiff was wrongfully terminated. The trial court found, as had the arbitrator, the Authority provided appropriate notice when the threshold levels for a positive drug test were changed; the Authority did not breach the MOA because the entire process concerning plaintiff's drug test followed the MOA; plaintiff's right to confidentiality was not violated because only people authorized to know about his drug test knew about it; and plaintiff was properly terminated pursuant to the MOA.

On appeal, plaintiff contends the arbitration award should be vacated because there was at least one fatal flaw in the testing and because there were multiple serious and material violations in obtaining and testing his urine sample. He also claims the trial court erred in concluding both that there were no statutory grounds for vacating the arbitration award and the award did not violate public policy. Aside from these contentions, plaintiff argues the Authority's drug testing policies violate his constitutional rights to due process, privacy, and freedom from unreasonable searches and seizures; and the trial court applied an erroneous summary judgment standard with respect to his constitutional claims. We reject plaintiff's arguments.

We begin our analysis with the principle that "[a]rbitration simply is not a mere gateway to the courthouse. The resolution of arbitrated disputes should ordinarily end with the conclusion of the arbitration. Such an approach gives credence to the notion that arbitration provides a straightforward and effective way to resolve legal matters." Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 209 (2013). Plaintiff has overlooked this fundamental principle concerning binding arbitration.

In Borough of E. Rutherford, the Court emphasized that these precepts are "particularly so in the case of public-sector labor disputes." Ibid. The Court reminded litigants and lawyers that "[p]arties that agree to arbitrate contractual disputes must recognize that courts give arbitrators significant discretion to make reasoned conclusions based on interpretations of the contractual language and the relevant law[,]" and "[t]he mere fact that this Court or any other court may disagree with an arbitrator's decision is not sufficient to overturn an arbitration award." Ibid.

Here, during the disciplinary arbitration proceedings, plaintiff did not assert there was either a fatal flaw or serious and material violations in the procedures used to obtain and test his urine sample. According to the MOA, the arbitration was binding and final. Having failed to present the arbitrator with evidence or arguments of such a fatal flaw or such serious and material violations, plaintiff cannot now assert such arguments as a basis for upsetting the arbitration award; nor can plaintiff resort to the courthouse as a means of making the record he should have made during arbitration.

The parties do not dispute that "N.J.S.A. 2A:24-1 through N.J.S.A. 2A:24-11 . . . apply to an arbitration or dispute arising from a collective bargaining agreement or a collectively negotiated agreement," and therefore to plaintiff's disciplinary arbitration proceeding. N.J.S.A. 2A:24-1.1. N.J.S.A. 2A:24-8 sets forth the grounds on which an award can be vacated

The court shall vacate the award in any of the following cases

a. Where the award was procured by corruption, fraud or undue means;

b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;

c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;

d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.

When an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

Here, plaintiff asserts the arbitration award should be vacated pursuant to subsection (a) because it was procured by undue means: preclusion of his right to assert a defense of accidental ingestion, disregard of the Authority's breach of the covenant of good faith and fair dealing, and ignoring serious and material procedural violations. Aside from his failure to raise the procedural arguments during the arbitration proceedings, the principal flaw in plaintiff's argument concerning his innocent ingestion defense is that it is not a defense.

The MOA provided the Authority and PBA would be bound by 49 C.F.R. Part 40, subparts A and B. Under 49 C.F.R. 40.137(b), medical review officers "must offer the employee an opportunity to present a legitimate medical explanation in all cases." However, the Code of Federal Regulations prohibits medical review officers from

consider[ing] explanations of confirmed positive . . . test results that would not, even if true, constitute a legitimate medical explanation. For example, an employee may tell [review officers] that someone slipped amphetamines into her drink at a party, that she unknowingly ingested a marijuana brownie, or that she traveled in a closed car with several people smoking crack. [Review officers] are unlikely to be able to verify the facts of such passive or unknowing ingestion stories. Even if true, such stories do not present a legitimate medical explanation. Consequently, [review officers] must not declare a test as negative based on an explanation of this kind.

[49 C.F.R. 40.151(d).]

In Gabbard v. FAA, 532 F.3d 563, 564 (6th Cir. 2008), a commercial pilot submitted to a random drug test pursuant to the FAA's mandated drug-testing policy. The results came back positive for cocaine, and his pilot's license was revoked. Ibid. The pilot argued, among other things, that The National Transportation Safety Board failed to consider his "inadvertent ingestion of cocaine as a legitimate medical explanation" for his test results. Id. at 566. Specifically, the pilot contended "he smoked a cigarette that he did not know was laced with cocaine until after a couple puffs." Ibid. The Sixth Circuit did not consider this contention to be a "legitimate medical explanation" in light of 49 C.F.R. 40.151(d). Ibid. Generally, the same reasoning applies to plaintiff in the case before us.

Plaintiff's remaining arguments attacking the arbitration award as having been procured by corruption, fraud or undue means are equally devoid of merit. These arguments, for the most part, are premised on the arbitrator's failure to consider his claim of accidental ingestion and the alleged procedural flaws in the testing process that plaintiff never raised before the arbitrator.

We also find unavailing plaintiff's arguments that he was denied procedural and substantive due process, as well as his claim that his constitutional right to privacy was violated. He claims his due process rights were violated because he was not afforded a full and fair opportunity to defend the allegations against him and because he did not have adequate notice. Specifically, plaintiff maintains that because he was not permitted to advance his defense of innocent ingestion, he was not provided a meaningful opportunity to be heard. Additionally, he claims that because the MOA did not define certain terms, such as "unauthorized drug use," he did not "receive proper due process notice" as to the grounds that could be used to terminate his employment.

"The essence of due process is the requirement that a person in jeopardy" of a deprivation of a constitutionally protected interest be given notice of the case against him and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 909, 47 L. Ed. 2d 18, 41 (1976) (citation omitted); see also Seoung Ouk Cho v. Trinitas Regional Med. Ctr., 443 N.J. Super. 461, 472-73 (App. Div. 2015) (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)) ("Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner."), certif. denied, 224 N.J. 529 (2016). Here, plaintiff was afforded an opportunity to be heard both when he interviewed the MRO and again when he attended the arbitration disciplinary hearing. He does not complain about the denial of an opportunity to be heard, but rather about being unable to offer evidence of innocent ingestion, which he insists should have been a defense to the disciplinary charges. It was not. Consequently, he was prevented from doing nothing more than adducing irrelevant evidence.

Plaintiff claims that he did not have notice of the policies reflected in the MOA that could lead to his termination. We find nothing ambiguous about the MOA's prohibition of illegal or unauthorized drug use. Moreover, we fail to discern how different terminology or definitions in the MOA would have resulted in a different outcome, given plaintiff's claim he unknowingly ingested his spouse's medication. In any event, plaintiff does not dispute that he was given notice of the results of the drug test, the Authority's intent to seek termination of his employment, and the opportunity to fully participate in the disciplinary arbitration proceedings.

Plaintiff also contends his federal constitutional substantive due process rights were violated because there is no rational relationship between application of the Authority's drug policy to cases of innocent ingestion and the Authority's legitimate interest in providing and maintaining a work environment free of unlawful drug use. We disagree.

The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, 1. This provision guarantees "more than fair process, and . . . cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them[.]" Cty. of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S. Ct. 1708, 1713, 140 L. Ed. 2d 1043, 1053 (1998) (internal citations omitted).

In Lewis, the Court emphasized "the touchstone of due process is protection of the individual against arbitrary action of government[.]" Id. at 845, 118 S. Ct. at 1716, 140 L. Ed. 2d at 1057 (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935, 952 (1974)). The Court went on to explain, however, "[w]hile due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities, criteria to identify what is fatally arbitrary differ[s] depending on whether it is legislation or a specific act of a governmental officer that is at issue." Id. at 846, 118 S. Ct. at 1716, 140 L. Ed. 2d at 1057 (citations omitted). As to acts of governmental officers, the Court noted "for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience." Id. at 846, 118 S. Ct. at 1717, 140 L. Ed. 2d at 1057. In a similar vein, legislation must be "rationally related to a legitimate state interest." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320, (1985).4

Here, plaintiff's substantive due process argument fails under either test. The Authority's drug testing policy is not conscience shocking in either its content or its application. Moreover, the policy is rationally related to the Authority's legitimate interest in ensuring the officers that protect some of the nation's busiest transportation hubs and thoroughfares do so unimpaired by illegal or unauthorized drug use.

We have considered plaintiff's other arguments and found them to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 According to the testimony of the PBA's general counsel, the MOA was the parties' collective bargaining agreement. Although the MOA was effective from January 21, 2003 through January 20, 2010, under the terms of a savings clause, it remained in effect in 2011 because the parties had not completed negotiations of a successor agreement.

2 The policy provided the Authority and PBA would be bound by 49 C.F.R. Part 40, subparts A and B, "for all drug testing conducted pursuant to this 1996-2003 Memorandum of Agreement." Plaintiff does not dispute that this provision did not change in the 2003-2010 MOA.

3 In a split specimen test, a part of the urine specimen is sent to a laboratory and retained unopened. The specimen is then transported to a second laboratory in the event the employee requests that it be tested following a verified positive test of the primary specimen. See 49 C.F.R. 40.3.

4 Rational basis review gives way when legislation impinges on a fundamental right. City of Cleburne, supra, 473 U.S. at 440, 105 S. Ct. at 3254, 87 L. Ed. 2d at 230. Such legislation is "subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." Ibid. (citations omitted).