Carberry, Matter of

• Decision Date: 13 April 1989
• Citation: 556 A.2d 314,114 N.J. 574
• Parties: In the Matter of General Disciplinary Hearing of Trooper Thomas M. CARBERRY.
• Court: New Jersey Supreme Court

Page 574

114 N.J. 574

556 A.2d 314

In the Matter of General Disciplinary Hearing of Trooper Thomas M. CARBERRY.

Supreme Court of New Jersey.

Argued Oct. 12, 1988.

Decided April 13, 1989.

Sheree E. Rheinhardt, Deputy Atty. Gen., for appellant, State of New Jersey (Cary Edwards, Jr., Atty. Gen. of New Jersey, atty.).

Donald W. Morrow, for respondent, Trooper Thomas M. Carberry (Morrow, Benbrook & Curzi, attys.; Donald W. Morrow, Cynthia J. Jahn, Clinton, and Susan Russo, Woodbridge, on the briefs).

James Katz submitted a brief on behalf of amicus curiae, American Civ. Liberties Union of New Jersey (Tomar, Seliger, Simonoff, Adourian & O'Brien, Haddonfield, attys.).

John V. Jacobi and Susan Remis Silver, Asst. Deputies Public Advocate, submitted a brief on behalf of amicus curiae, Public Advocate of New Jersey (Alfred A. Slocum, Public Advocate, atty.).

The opinion of the Court was delivered by

POLLOCK, J.

The issue on this appeal is whether an agency head's conducting of a hearing to discipline an agency employee constitutes a denial of due process to the employee. More specifically, the question is whether State Trooper Thomas M. Carberry was denied due process because the hearing to discipline him was conducted by Colonel Clinton Pagano, the superintendent of the New Jersey Division of State Police (Division). After that hearing, Superintendent Pagano determined that Trooper Carberry had violated the rules and regulations of the Division by failing "to promptly report and take proper police action * * *," and by behaving "in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division." At the agency level, Carberry did not challenge Superintendent Pagano's right as the agency head to conduct the administrative hearing. Before the Appellate Division, however, Carberry successfully argued that the Superintendent should not have heard the matter. Consequently, that court remanded the matter to the Office of Administrative Law (OAL) for a rehearing. We granted certification, 109 N.J. 507, 537 A.2d 1295 (1988). We now modify the judgment of the Appellate Division and remand the matter to the Superintendent for a rehearing.

-I-

As head of the Department of Law and Public Safety, the Attorney General is the chief law-enforcement officer in the State. N.J.S.A. 52:17B-2. In that capacity, the Attorney General is required "to formulate and adopt rules and regulations for the efficient conduct of the work and general administration of the department, its officers and employees." N.J.S.A. 52:17B-4d. The Division is established in the Department of Law and Public Safety, with the superintendent as the executive and administrative head of the Division. N.J.S.A. 52:17B-7. The Division satisfies the definition of "state agency" under the Administrative Procedure Act, N.J.S.A. 52:14B-2(a), and the superintendent, as the individual constituting the highest authority within the agency, is "the head of the agency" under that Act, N.J.S.A. 52:14B-2(d). As the head of the Division, the superintendent sets Division policy, N.J.S.A. 53:1-10, and subject to the approval of the Governor, makes the "rules and regulations for the discipline and control" of state police officers. Ibid. Consequently, the superintendent has the ultimate responsibility for maintaining discipline among state police officers. The weight of that responsibility becomes apparent on considering that state troopers are authorized to carry firearms, N.J.S.A. 2C:39-5 to -6(3), to use deadly force under justifiable circumstances, N.J.S.A. 2C:3-7, and to enforce law and order throughout the state. Given those responsibilities, the need of the superintendent to maintain discipline among the troopers is obvious. Equally obvious is the need for the troopers to remain drug free. The use of illegal drugs is incompatible with the integrity of the State Police and with the ability of troopers to perform their duties.

In February 1985, the Division initiated a "Well-Trooper Program." The program, a form of preventive medicine, was designed to detect cardiac deficiencies, and required troopers to undergo various medical tests, including urinalysis. The announcement of the program did not indicate that urine samples would be screened for controlled dangerous substances, such as marijuana. Carberry, who had been employed by the Division for thirteen years, reported for his physical on March 29, 1985. Without his knowledge, a sample of his urine was tested for drugs by a commercial laboratory.

The laboratory used a test known as the Enzyme Multiplied Immunoassay Technique (EMIT) test, which detects the presence of cannabinoids, the metabolites of marijuana. A positive EMIT test indicates the possibility of marijuana cannabinoids in a specimen, a possibility that can be confirmed through a gas-chromatography/mass-spectrometry test (GC-MS), which more accurately reveals the presence of marijuana. ¹ Test results are measured in nanograms per milliliter. A nanogram is one-thousandth of a millionth of a gram. Pursuant to the Division's "protocol," or procedure in effect at the time of Carberry's test, twenty nanograms was the cut-off point for a positive EMIT test, subject to confirmation by GC-MS analysis. Twenty nanograms is a low cut-off point, the selection of which the Division justifies by stating that it is interested not only in whether a trooper is impaired but also whether he or she is using drugs to any extent. If the EMIT test contains fewer than twenty nanograms, the Division deems the test negative for marijuana. Although Carberry's test result revealed forty to fifty nanograms, thereby exceeding the twenty-nanogram threshold, the Division did not confirm that result through GC-MS analysis.

Instead, the Division requested Carberry to report to the State Police laboratory at Sea Girt, where, on August 8, 1985, he was informed that his first urine sample tested positive for drugs and that he was under investigation for having violated Division regulations. On request, he submitted a second urine sample. An EMIT test performed that day by the State Police laboratory revealed an estimated twenty-six nanograms. GC-MS analysis confirmed the presence of marijuana. In accordance with standard Division procedure, Carberry signed an acknowledgment that he had been informed of his rights as the subject of an internal investigation. He was not told, however, that he could retain a portion of his specimen for independent testing. Nor did the State Police laboratory preserve any of his specimen. On the next day he was informed that his test results were positive for marijuana. Carberry explained that he had never smoked marijuana, but that in the course of his duties he had handled marijuana seeds on two occasions during the preceding weeks. He also said that once, five days earlier he had been in a van where others had been smoking marijuana.

Based on the test results and Carberry's admitted failure to take any action against those smoking marijuana in the van, Superintendent Pagano immediately suspended him. The Division filed charges on October 11, 1985, alleging that Carberry had violated Article V, Section 7 of the Division's rules and regulations, which provides:

The failure on the part of a member while on duty or on authorized absence from duty, and whether in uniform or not, to promptly report and take proper police action in any situation reasonably requiring such action, is neglect of duty,

and Article VI, Section 2b, providing:

No member shall: Act or behave in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division.

Carberry pled not guilty, and the matter proceeded to a hearing before Superintendent Pagano. Carberry, who was represented by counsel, did not request that Superintendent Pagano recuse himself or that he refer the matter to the OAL. Instead, Carberry contended that the test of his second urine specimen was unreliable because the EMIT test had revealed a low level of cannabinoids, which in turn produced an unreliably low GC-MS reading. He also questioned the accuracy of the mass spectrometer and of the GC-MS procedure.

Both the Division and Carberry produced experts to testify about the testing procedures. Dr. Richard Saferstein, who had designed the Division's protocol, testified that the procedures reliably detected the presence of marijuana in the urine and that Carberry's results indicated that the trooper had used the substance. Carberry's expert, Dr. Arthur McBay, challenged the reliability of the Division's protocol, and testified that more accurate tests should be used when an employee's career depended on the results. Superintendent Pagano resolved the dispute between the two experts by accepting Dr. Saferstein's testimony and concluding that the positive results from the first and second urine tests indicated "continued use" of marijuana. The Superintendent further concluded that this violation of Division policy and the failure to take appropriate action in the van incident justified termination of Carberry's employment.

Carberry appealed to the Appellate Division. R. 2:2-3(a)(2). While the appeal was pending, in October 1986, the Attorney General established uniform state-wide drug-testing guidelines to "maintain the drug-free law enforcement community and at the same time safeguard the rights of individual police officers." Attorney General, Law Enforcement Drug Screening Guidelines, Memorandum, Oct. 22, 1986, at 1. The Attorney General did not direct that the Law Enforcement Drug Screening Guidelines (Guidelines) apply retroactively, but urged that they be adopted by all law-enforcement agencies, including the State Police. Id. at 2.

The Guidelines evolved from the hearings, findings, and deliberations of The New Jersey Criminal Justice Advisory Council, which "is comprised of management, law enforcement...