IN THE MATTER OF ANTHONY CALDARISE

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
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     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1768-16T2

IN THE MATTER OF ANTHONY
CALDARISE, NEW JERSEY STATE
PRISON, DEPARTMENT OF CORRECTIONS.
__________________________________

           Submitted March 21, 2018 – Decided June 20, 2018

           Before Judges Fuentes and Suter.

           On appeal from the New Jersey Civil Service
           Commission, Docket No. 2016-1439.

           Fusco & Macaluso Partners, LLC, attorneys for
           appellant Anthony Caldarise (Anthony J. Fusco,
           Jr., on the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent Department of Corrections
           (Melissa Dutton Schaffer, Assistant Attorney
           General, of counsel; Jana R. DiCosmo, Deputy
           Attorney General, on the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent New Jersey Civil Service
           Commission (Pamela N. Ullman, Deputy Attorney
           General, on the statement in lieu of brief).

PER CURIAM

     Petitioner Anthony Caldarise appeals from the November 28,

2016 final agency decision of the Civil Service Commission that

affirmed the termination of his employment by the New Jersey
Department of Corrections (DOC) for conduct unbecoming a public

employee,   N.J.A.C.     4A:2-2.3(a)(6),     after   his     urine   test   was

positive for anabolic steroids.             We affirm the final agency

decision because it was supported by the evidence and was not

arbitrary, capricious or unreasonable.

      Caldarise was employed by the DOC as a senior corrections

officer.    On July 13, 2015, the police were called to his house

on a matter unrelated to this case. His girlfriend told the police

Caldarise was using steroids and showed them where the vials and

syringes were kept.      The police contacted the DOC.         Caldarise was

directed to provide a urine sample to test for anabolic steroids.

He   provided   the    sample;   it   was   forwarded   to   Aegis   Sciences

Corporation (Aegis) in Nashville, Tennessee for testing.                    The

sample tested positive for "exogenous testosterone," meaning that

its origin was "synthetic."1

       The DOC's preliminary notice of disciplinary action sought

Caldarise's removal as a corrections officer.           It charged him with

conduct unbecoming a public employee, in violation of N.J.A.C.

4A:2-2.3(a)(6).       A Final Notice of Disciplinary action sustained

this charge, following a departmental hearing.          Caldarise appealed


1
   The sample exceeded the testosterone to epitestosterone ratio
(T/E ratio) of six, which was the reporting threshold. Caldarise's
sample reported a T/E ratio of 54.1.


                                       2                              A-1768-16T2
to the Civil Service Commission.      The case was transmitted to the

Office of Administrative Law (OAL) for a hearing.

      At the September 12, 2016 OAL hearing, Caldarise testified

that he had taken "a host of different supplements" since playing

football in high school twenty-five years ago.       These were non-

prescription   health   food   supplements   that   he   described    as

"testosterone boosters, [to] help you cut weight, help your body

heal, different types of supplements to help your body." Caldarise

submitted a letter from Dr. John A. Ricci, M.D., who did not

testify, but said in the letter, that "certain [over the counter]

supplements can cause elevated testosterone in particular Tribulis

[t]errestris, Maca and DHEA.     All have been studied and shown in

sufficient dosing to raise testosterone."      Caldarise also relied

on journal articles, but he did not call any expert witnesses at

the hearing to testify about the articles.2

      Dr. Melinda Shelby, a Senior Scientist with Aegis, testified

for the DOC that DHEA could increase the T/E ratio but not "so

much that it looks like testosterone abuse."3        Caldarise's T/E

ratio of 54 was not indicative of DHEA administration.          Shelby

testified that DHEA had "little or no effect on the T/E ratio."


2
    The journal articles were not included in the record.
3
  The DOC expert witnesses relied on their certifications.       These
certifications were not included in the record.

                                  3                            A-1768-16T2
According    to   Dr.     Shelby,     herbal     substances    such    as   Tribulus

terrestris      and     Maca    did     not    significantly     increase         serum

testosterone and they would be endogenous or natural, not the

synthetic substance found in Caldarise's urine sample.                          Another

study cited by Dr. Shelby showed that Maca did not affect "serum

hormones, including testosterone."

      Lora McCord, a Lead Scientist with Aegis, testified the tests

performed on the sample were consistent with the protocols of

their laboratories.          Caldarise's urine sample tested positive for

the anabolic steroid testosterone, using two different metrics.

His T/E ratio indicated the presence of synthetic testosterone.

      The administrative law judge's (ALJ) initial decision on

October   12,     2016,      affirmed    Caldarise's     removal      as    a    senior

corrections officer, concluding that Caldarise "violated the rules

and   regulations       as   charged"    and     also   that   his    removal       from

employment was "the appropriate penalty."                The ALJ found that the

DOC had provided the "preponderating credible evidence" and that

both expert witnesses for the DOC provided "credible" testimony.

He did not give any weight to Dr. Ricci's letter because the doctor

did not testify nor to the journal articles, because they were not

supported by expert testimony.                Caldarise did not "explain away

the preponderating scientific evidence supplied by Aegis, both in

test results and in testimony."               The ALJ found "the factual record

                                          4                                     A-1768-16T2
fits within the charges and rule and regulation violations cited

in the final notice of disciplinary action."           Caldarise's removal

as a senior correction's officer was warranted because of the

"higher standard imposed on sworn law enforcement personnel."

       On November 28, 2016, the Civil Service Commission's final

administrative       action    affirmed   termination      of    Caldarise's

employment, finding it to be justified.           Caldarise appeals from

the final agency decision.

       On appeal Caldarise argues that the urine tests should have

been barred because of the failure to follow internal affairs

guidelines, to advise Caldarise of his Miranda4 warnings and to

apprise him of his rights under Weingarten.5          He contends the final

agency decision was not supported by the record and the ALJ's

actions were arbitrary and capricious.           He argues that removal

from    employment    was     disproportionate   in    light    of   all   the

circumstances.   We find no merit in these arguments.

       We will not set aside an agency's action unless "there is a

clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record."          In re Herrmann, 
192 N.J. 19, 27-28 (2007); see also Karins v. City of Atl. City, 152


4
    See Miranda v. Arizona, 
384 U.S. 436 (1966).
5
    See NLRB v. Weingarten, 
420 U.S. 251 (1975).


                                      5                               A-1768-16T
2 N.J.   532,   540   (1998).      We    have   applied     such   deference      when

reviewing determinations of the Commission, or of its predecessor

agencies that have administered the civil service laws.                         See,

e.g., Campbell v. Dep't. of Civil Serv., 
39 N.J. 556, 562, 578

(1963); Falcey v. Civil Serv. Comm'n, 
16 N.J. 117, 125 (1954); In

re Sheriff's Officer (PC2209J), 
226 N.J. Super. 17, 21-22 (App.

Div. 1988).

       There was substantial evidence to support the Commission's

final agency decision.          The urine test results showed synthetic

rather than natural substances.               Expert witnesses for the DOC

testified the sample was positive for anabolic steroids.                     No one

questioned the actual testing methodology or the chain of custody.

Dr. Shelby testified without rebuttal that the levels detected

could not have been the result of the supplements cited by Dr.

Ricci.    Although Caldarise claimed that these results were due to

over the counter non-prescription substances, he never countered

the testimony by the DOC's experts that the results did not come

from supplements.        The court was correct to give no weight to Dr.

Ricci's   letter    or    the   journals      because   there    was   no    expert

testimony to support these documents.

       Caldarise    contends    that    the    Attorney    General's    Internal

Affairs Policy & Procedures were not followed or that he should

have received Miranda warnings and Weingarten rights. The Attorney

                                        6                                   A-1768-16T2
General's Internal Affairs guidelines state that drug testing of

law enforcement officers is governed by the Attorney General's Law

Enforcement Drug Testing Policy.          Attorney General's Internal

Affairs    Policy      &    Procedures,      at    26     (Nov.     2017),

http://www.nj.gov/oag/dcj/agguide/internalaffairs2000v1_2.pdf.

That policy requires law enforcement officers to submit a drug

test when "there exists reasonable suspicion to believe that the

officer   is   illegally   using   drugs."     Attorney    General's    Law

Enforcement     Drug   Testing     Policy,    at    3     (April    2018),

http://www.nj.gov/lps/dcj/njpdresources/pdfs/Drug-Test-

Policy_2018-05.pdf. These guidelines do not preclude disciplinary

action. Miranda did not apply because Caldarise was not in custody

nor subject to interrogation.       
384 U.S.  at 444.      Weingarten did

not apply because the required testing was not an "investigatory

interview."    
420 U.S.  at 261-62.

     Caldarise argues that his termination from employment was

disproportionate to the offense.          Under the Attorney General's

Drug Testing Policy, illegal drug use is grounds for termination.

Attorney General's Law Enforcement Drug Testing Policy, at 5.

Given his role as a correction's officer, his termination from

employment for illegal drug use was not disproportionate.           See In

re Carter, 
191 N.J. 474, 486 (2007) (citing Twp. of Moorestown v.

Armstrong, 
89 N.J. Super. 560, 566 (App. Div. 1965)) (providing

                                    7                              A-1768-16T2
that a police officer is a "special kind of public employee" who

represents the law and order to the citizenry and "must present

an image of personal integrity and dependability in order to have

the respect of the public").        The Civil Service Commission's

decision was not arbitrary, capricious or unreasonable.

    Affirmed.




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