In re Griffin

• Docket Number: A-0678-21
• Decision Date: 18 January 2024
• Parties: IN THE MATTER OF LATERA GRIFFIN, HUDSON COUNTY, DEPARTMENT OF CORRECTIONS.
• Court: New Jersey Superior Court — Appellate Division

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IN THE MATTER OF LATERA GRIFFIN, HUDSON COUNTY, DEPARTMENT OF CORRECTIONS.

No. A-0678-21

Superior Court of New Jersey, Appellate Division

January 18, 2024

This opinion shall not "constitute precedent or be binding upon any court."Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited.R. 1:36-3.

Argued October 11, 2023

On appeal from the New Jersey Civil Service Commission, Docket No. 2019-1831.

Arthur J. Murray argued the cause for appellantLatera Griffin(Alterman & Associates, LLC, attorneys; Stuart J Alterman and Timothy J. Prol, on the briefs).

Cindy N. Vogelman argued the cause for respondentHudson County Department of Corrections(Chasan Lamparello Mallon &amp Cappuzzo, PC, attorneys; Cindy N. Vogelman, of counsel and on the brief; Priscilla E. Savage, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondentNew Jersey Civil Service Commission(Craig S. Keiser, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Haas and Natali.

PER CURIAM

AppellantLatera Griffin, a corrections officer employed by Hudson County Department of Corrections(HCDC), appeals from the final agency decision of the Civil Service Commission(CSC) which affirmed her termination after the results of a urinalysis conducted pursuant to HCDC's random drug testing policy indicated the presence of benzoylecgonine, a cocaine metabolite.Before us, Griffin contends the HCDC's urine screening failed to comply with the Attorney General's Law Enforcement Drug Testing Policy (revised April 2018)(Drug Testing policy), which was incorporated into and implemented by Attorney General Law Enforcement DirectiveNo. 2018-2.SeeOff. of the Att'y Gen., Law Enf't DirectiveNo. 2018-2, Statewide Mandatory Random Drug Testing(Mar. 20, 2018).That failure, according to Griffin, deprived her of her due process right to challenge the results of her positive sample.She also challenges certain of the Administrative Law Judge's (ALJ) discretionary procedural and evidentiary rulings.We reject all of these arguments and affirm.

I.

On August 16, 2018, Griffin was selected for random drug testing pursuant to the HCDC's "Drug-Free Workplace: Alcohol and Drug Testing" policy (Drug-Free Workplace policy).Prior to that test, Griffin worked for HCDC for approximately thirteen years and had submitted to random drug testing twice without incident.

On March 20, 2018, approximately five months before her August 2018 drug test, the Attorney General(AG) promulgated DirectiveNo. 2018-2.DirectiveNo. 2018-2 stated, "[t]his Directive shall take effect immediately upon issuance" and "[a]ll drug testing policies shall be adopted and/or revised in accordance with this Directive within [thirty] days."

The revised Drug Testing Policy addressed specific sampling procedures for providing two urine samples.As relevant to the issues before us, the policy provided "[a] donor whose specimen tested positive may only challenge the positive test result by having the second specimen independently tested.The first specimen will not be retested."

Although HCDC revised its Drug-Free Workplace policy in April 2018, it did not incorporate the specimen collection procedures outlined in the AG's Drug Testing Policy.Contrary to the Drug Testing Policy, the HCDC's policy, which became effective on November 19, 2011, permitted donors to submit two urine samples, but did not require them to do so.Specifically, HCDC's policy stated, "[d]onors shall have the option of providing a second specimen that must be collected at the same time as the first.If the donor chooses not to submit a sample, the donor, on a specimen acquisition report, shall sign the waiver of this option."

Contrary to both the AG's Drug Testing policy and HCDC's Drug-Free Workplace policy, Griffin provided only a single urine sample and did not sign a waiver of her option to provide a second sample.As noted, Griffin's urine sample tested positive for a cocaine metabolite.

HCDC issued a preliminary notice of disciplinary action and charged Griffin with: conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(6); neglect of duty, N.J.A.C. 4A:2-2.3(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(9).After a departmental hearing, HCDC terminated Griffin from her position and entered a final notice of disciplinary action (FNDA).Griffin appealed the FNDA and the matter was transferred to the Office of Administrative Law as a contested case.

Before the ALJ conducted any hearings, Griffin moved for summary decision, which the ALJ denied without a hearing.The parties then appeared before the ALJ for hearings on May 30, 2019, July 19, 2019, and September 25, 2019, where HCDC presented testimony of its Deputy Director, Michael Conrad, Dr. Robert Havier, the acting director of the New Jersey State Toxicology Laboratory, Detective Gabriel Diaz, and Lieutenant Erika Patterson.

The ALJ concluded HCDC's witnesses testified directly, credibly, and consistently with one another with respect to the HCDC's urine collection and testing processes.

Director Conrad, Lieutenant Patterson, and Detective Diaz testified regarding the procedures HCDC implemented during the August 2018 testing.With respect to Griffin's testing, Detective Diaz recalled she"came in with three other female officers" and he provided each of the four female officers with two bottles and recommended they fill both of them.According to Detective Diaz, he specifically explained "at the time of . . . the testing to [Griffin] that if you're confident you won't have any issues going forward, you can do one . . . but that is completely . . . up to you.But . . . if you feel like you're going to have issues down the road, please do use a second sample."Subsequently, Detective Diaz testified he specifically "advised her that the only way she could contest a positive test is a second sample."

Detective Diaz further testified he provided similar instructions relating to the second sample to everyone that day, including Griffin.He acknowledged, however, that he"forgot to use" the waiver form.Although the other three officers who tested at the same time as Griffin all submitted two samples, multiple officers who were tested that day provided only one sample.

Dr. Havier testified with respect to the State Toxicology Laboratory's testing procedures, including those used to test Griffin's sample.Based on the test results, he stated Griffin's urine tested positive for benzoylecgonine "and that his conclusion was made within a reasonable degree of scientific certainty."Additionally, according to Dr. Havier, the level of benzoylecgonine discovered in Griffin's sample was "very high" and nothing described in her medication forms could account for such a result.With respect to split samples, Dr. Havier testified the State lab began requiring two samples pursuant to the AG's Drug Testing policy in September 2018, several weeks after Griffin's test.

Due to a scheduling error by Griffin's counsel, he was unable to cross-examine Dr. Havier on the date he originally testified.Dr. Havier appeared for cross-examination on a later date and on cross-examination, Griffin's counsel sought to introduce a letter from the State Toxicology Laboratory dated September 5, 2019, as well as email responses he received from Dr. Havier one day before the September 25, 2019 hearing, both of which counsel claimed impeached portions of Dr. Havier's direct testimony.

The ALJ excluded the letter due to counsel's failure to produce the letter earlier.She similarly determined the emails were inadmissible due to counsel's failures to timely seek email responses from Dr. Havier and alert opposing counsel of his intention to introduce the impeachment evidence.The ALJ was also satisfied Griffin's counsel could sufficiently cross-examine Dr. Havier about the test results without referencing the email exchange.In light of the ALJ's determination, Griffin's counsel stated "I'm going to ask for your recusal" and argued the ALJ was "not letting [him] try this case."

Derrick James, president of Hudson County's local PBA and a corporal for HCDC, helped oversee the August 2018 drug testing and testified on Griffin's behalf.Corporal James testified he was unaware the donors were not provided waivers until after the test results came back.According to Corporal James, he then spoke to the HCDC director about HCDC's failure to provide waivers.The ALJ precluded further testimony pertaining to his conversation with the director, however, as she determined such testimony could improperly impact other cases arising from the August 2018 testing and therefore ran afoul of N.J.R.E. 403(b).She also determined Griffin's counsel failed to identify the testimony's probative value.The ALJ concluded Corporal James testified credibly.

After the third day of hearings, Griffin renewed her application for a summary decision and requested to admit "testimony regarding unprivileged communications between PBA 109 President Derrick James and Director Edwards "and "email responses of Dr. Havier which he sent on September 24, 2019 in response to inquiries made to him in preparation for his testimony."Griffin also asked the ALJ to take judicial notice of Directive 2018-2.

After considering the parties' submissions and oral arguments, the ALJ denied Griffin's summary decision application and her "evidentiary motions" in a June 2, 2020 order.In her accompanying statement of reasons, the ALJ declined to address Griffin's evidentiary objections, relying on her reasoning on the record during the hearings.

The ALJ also concluded issues of material fact precluded summary decision and...