George v. City of Newark

• Citation: 894 A.2d 690,384 N.J. Super. 232
• Parties: Kevin GEORGE, Petitioner-Respondent, v. CITY OF NEWARK, Respondent-Appellant.
• Decision Date: 29 March 2006
• Court: New Jersey Superior Court

894 A.2d 690

384 N.J. Super. 232

Kevin GEORGE, Petitioner-Respondent, v. CITY OF NEWARK, Respondent-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued February 28, 2006.

Decided March 29, 2006.

Carolyn A. McIntosh, Assistant Corporation Counsel, argued the cause for appellant (Joanne Y. Watson, Corporation Counsel, attorney; Ms. McIntosh, on the brief).

William S. Greenberg, Newark, argued the cause for respondent (Paster & Greenberg, attorneys; Mr. Greenberg, on the brief).

Zulima V. Farber, Attorney General, attorney for The New Jersey Merit System Board (Todd A. Wigder, Deputy Attorney General, on the Statement In Lieu of Brief).

Before Judges KESTIN, LEFELT and R.B. COLEMAN.

The opinion of the court was delivered by

LEFELT, J.A.D.

After Police Sergeant Kevin George tested positive for marijuana, the City of Newark removed him from employment. Upon George's administrative appeal, the Merit System Board concluded that the City had unconstitutionally deprived George of his ability to contest the charge and reinstated the sergeant with back pay, benefits, and counsel fees. The City appeals and we vacate the Board's decision and remand for further proceedings.

Here is what happened. Pursuant to the Attorney General's Drug Screening Policy, the Newark Police Department, as part of its random drug testing program authorized by General Order 99-4, directed George to submit a urine specimen. The General Order required George to provide a minimum 60 ml of urine, with the specimen divided into a primary and split specimen, each containing at least 30 ml of urine. George complied, and his primary sample was delivered to the State Toxicology Laboratory.

The State Lab used a florescence polarization immunoassay (FPIA) test to screen George's primary sample preliminarily for the presence of eight illegal substances. The test's threshold level for cannabinoids, or marijuana, was 20 nanograms per milliliter (ng/ml). George's specimen tested positive for marijuana at 45.35 ng/ml.

Pursuant to the Drug Screening Policy, the positive test required the lab to perform a second confirmatory test of George's primary sample. This time the lab tested the sample by using gas chromatography/mass spectrophotometry (GC/MS) with the marijuana threshold at 10 ng/ml. The cut-off threshold level is set lower for GC/MS than for the FPIA, according to the State Lab, "because of the sensitivity of that particular methodology." George's sample again tested positive for marijuana at 23.0 ng/ml.¹

Pursuant to the Attorney General's Law Enforcement Drug Testing Manual, before a positive result is reported, a State Lab medical officer reviews "the test results together with the medication information form." In this form the officer being tested discloses any medications taken within the last fourteen days. The medical officer seeks "to determine whether any of the substances listed on the form would explain the positive test result." If there is no explanation found in the form, the positive result is reported to the pertinent police department.

Based on the lab results, the City terminated George from his sergeant's position. After months of delay caused by some initial confusion as to whether a request had already been made, George requested by letter that his split sample be tested by LabCorp, a licensed independent laboratory that George had selected from a list the City had provided to him. Despite the delay in making the request, which exceeded the General Order's sixty-day timeframe, the Department sent the split sample directly to LabCorp.

According to testimony from a forensic toxicologist, who had been employed by the State Laboratory for twenty-seven years, the State had advised independent labs, such as LabCorp, to utilize the same testing threshold required by the Attorney General Drug Screening Policy for use in law enforcement drug tests. However, neither George nor anyone from the State Lab or the City verified that LabCorp had received this instruction or ensured in any fashion that LabCorp understood the threshold that had been utilized in the testing of George's primary sample.

Shortly thereafter, LabCorp tested the split sample using a threshold level of 50 ng/ml, which is the threshold commonly used in private industry, and reported that the sample was negative for the presence of marijuana. The City apparently reported the result to George some ten months after the test had been performed. The administrative record does not reflect whether the split sample sent to LabCorp had been destroyed by the time George was notified of the result; whether the sample had likely degraded over time so that it could not be accurately tested; or whether LabCorp could, at the time of the hearing, have produced the actual testing result.²

George denied knowingly ingesting marijuana and maintained that any exposure to marijuana came as a result of his job responsibilities as a police officer. George claimed that he had to handle marijuana evidence, which was often contained in plastic bags, and occasionally in the form of cigarettes.

George appealed his termination to the Merit System Board, and the matter was transmitted to the Office of Administrative Law. An administrative law judge conducted a hearing at which the parties stipulated to the chain of custody and the voiding and collection procedures employed by the City. The ALJ found George's testimony that he did not knowingly ingest marijuana to be unbelievable and issued an initial decision affirming the City's termination of George.

The Board concluded that it was the City's obligation to advise the independent lab of the proper threshold and reversed the initial decision. The Board determined LabCorp was "apparently" not advised of the threshold, and that the City's failure to so advise the lab rendered the testing process "fundamentally flawed" and deprived George of his "due process" opportunity to establish that the positive reading was false. The Board found the flaw "especially egregious in this case, since the initial test produced a positive result of 23 ng/ml, barely over the threshold of 20 ng/ml."

Consequently, the Board directed that George be reinstated and awarded back pay of $111,324.30; $631.71 to reimburse George for payments he made to maintain health insurance coverage within 30 days of receipt of the Board's decision; counsel fees of $10,255; and $1,000 for his expert witness costs. The City reinstated George on March 3, 2004,³ and thereafter appealed to this court.⁴

Ordinarily, administrative decisions are accorded substantial deference. In re Musick, 143 N.J. 206, 216-17, 670 A.2d 11 (1996). We generally will overturn only those administrative determinations that are arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562, 189 A.2d 712 (1963). Any administrative decision that is unsupported by substantial, or sufficient, credible evidence in the record will be reversed as arbitrary, capricious, or unreasonable. In Re Taylor, 158 N.J. 644, 656-57, 731 A.2d 35 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80, 410 A.2d 686 (1980).

Preliminarily, we agree with the Board that George had a protected interest in his continued employment with the City. See In re Carberry, 114 N.J. 574, 583-84, 556 A.2d 314 (1989) (state trooper had a property interest in continued employment during good behavior, subject to termination only for cause). We also agree that George had a right to have the split sample tested at the same threshold as the primary sample. We further agree it is within the Board's authority to determine whether George, the City, or some other entity was obliged to inform LabCorp of the proper testing parameters. See DelRossi v. Dept. of Human Servs., 256 N.J.Super. 286, 292, 606 A.2d 1128 (App.Div.1992) (holding that "in disciplinary proceedings the Board's role is clearly adjudicatory and the Board acts on a case by case basis"). Upon review of decisions by the Board, we are bound to give weight to its presumed expertise in personnel matters. See Shahmoon Indus., Inc. v. Dept. of Health, 93 N.J.Super. 272, 282-83, 225 A.2d 699 (App.Div.1966), certif. denied, 49 N.J. 358, 230 A.2d 392 (1967). However, on questions of law, such as whether George in this case was deprived of due process, we are not bound by the agency decision and will review the agency's determination de novo. Taylor, supra, 158 N.J. at 658, 731 A.2d 35.

In this matter, we question whether the record contains sufficient evidence supporting the Board's decision that a due process violation occurred and that the entire testing process was "fundamentally flawed." Although the Board believed that the split sample, if properly tested, would have constituted persuasive evidence that the State Laboratory's results were "somehow invalid" or a "false positive," we find little to no support for this in the record.

George's expert directly attacked only the reliability of the FPIA screening test. The FPIA's manufacturer's statistics revealed that, at a threshold of 25 ng/ml, the GC/MS test confirmed only twenty-seven of fifty-five tests found positive for cannabinoids through FPIA testing. Thus, according to George, the FPIA had twenty-eight false positives. However, the record contains no statistics pertaining to false positives for the GC/MS test. In fact, there was no evidence challenging the reliability of the GC/MS results.

George's own expert was asked "if that same positive test for marijuana was confirmed on the GC/MS with a simultaneous quality control test, would that then change your mind" regarding the need for a "control run on the same day that the testing of a sample occurs?" The expert replied, "I have great faith in GC/MS confirmation. I don't have much trouble after reviewing the documents of the GC/MS work that was done on supposedly Mr. George's...