Corey Corbo, CSC Docket No. 2015-2471

BackgroundThe appeal of Corey Corbo, a Police Officer with Union City, of his removal, effective July 16, 2014, on charges, was heard by Administrative Law Judge Gail M. Cookson (ALJ), who rendered her initial decision on December 11, 2019. Exceptions were filed on behalf of the appellant.

AnalysisHaving considered the record and the attached initial decisions, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on January 15, 2020, accepted the Findings of Fact set forth in the December 11, 2019 initial decision and the Conclusions therein and the recommendation of the ALJ to uphold the appellant’s removal.

PROCEDURAL HISTORY

The appellant was removed, effective July 16, 2014, on charges of insubordination, inability to perform duties, conduct unbecoming a public employee, neglect of duty, other sufficient cause, and violations of various departmental rules and regulations. Specifically, the appointing authority asserted that the appellant tested positive for cocaine. Upon the appellant’s appeal, the matter was transmitted to the Office of Administrative Law (OAL) for a hearing.

It is noted that the ALJ originally rendered an initial decision on April 14, 2016, upholding the appellant’s removal on charges that he ingested cocaine. Exceptions were filed on behalf of the appellant and a reply to the exceptions was filed on behalf of the appointing authority. However, due to the lack of a quorum and consent from all parties to extend the time, the Commission was unable to act on the matter within the allotted time for determination. Therefore, the ALJ's original initial decision was deemed adopted as the Commission’s final decision on July 25, 2016. See In the Matter of Corey Corbo (CSC, Deemed Adopted July 25, 2016). Thereafter, the appellant pursued an appeal with the Superior Court of New Jersey, Appellate Division (Appellate Division). On appeal, he argued that the ALJ erred by admitting unreliable hearsay to prove the charges against him in violation of the residuum rule. In that regard, the ALJ admitted a statement made to police by the appellant’s girlfriend, who claimed that the appellant had ingested cocaine, as well as the hospital report indicating his positive drug test result. The Appellate Division determined that the girlfriend’s statement was hearsay and not admissible as it was not an excited utterance, not made by the patient for medical treatment, or a statement against interest. The court indicated that the source of the girlfriend's knowledge was also never determined. Additionally, it held that the hospital records and the laboratory results embedded in the hospital reports were inadmissible hearsay because they were not properly admitted as business records. Accordingly, the Appellate Division concluded that no competent evidence was introduced to prove the appellant’s ingestion of cocaine and reversed his removal. See In the Matter of Corey Corbo, Docket No. A-561015T3-16T4 (App. Div., decided March 1, 2018). Subsequently, Union City petitioned for reconsideration seeking a remand, but the Appellate Division denied the request. The appointing authority then petitioned the New Jersey Supreme Court (Supreme Court) for certification, which was granted. Upon review, the Supreme Court modified the Appellate Division’s decision and remanded the matter to the Office of Administrative Law (OAL) to allow Union City the opportunity to demonstrate that the hospital records were admissible as business records or present other theories of admissibility. See In the Matter of Corey Corbo, Union City Police Department, 238 N.J. 246 (2019). The matter was then transmitted to the OAL for further proceedings.

DISCUSSION

As noted in the procedural history of this case, the Supreme Court remanded the matter to the OAL for further proceedings. On remand from the Supreme Court, additional proceedings took place at the OAL. The appointing authority presented three witnesses. Based on the testimonial evidence and a review of the factual background presented previously, the ALJ found that on June 11, 2014, the appellant's girlfriend discovered the appellant “unconscious, gurgling at the mouth with purple lips.” She called emergency services, and an ambulance and the police arrived at the scene. It appeared that the appellant had overdosed. Medications had been found in his room. In addition, the appellant’s girlfriend had informed a Police Officer that the appellant had taken a “bump” of cocaine five days earlier. Hospital records had been sought to assist in the internal investigation as to whether there was a reasonable suspicion that the appellant had ingested an illegal narcotic. The hospital records had confirmed that a cocaine metabolite was present in the appellant’s urine. Moreover, the testimony on remand revealed that the hospital records previously marked into evidence at the OAL matched exactly the electronic record maintained by the hospital where the appellant had been taken. In that regard, a Medical Records Manager and an Administrative Director of Laboratories had testified at OAL. Moreover, a Lab Technician, who had worked in June 2014, testified as to the laboratory process in testing the appellant's urine, which resulted in a positive drug test. The Lab Technician testified that she had never had a case where the transfer of test results to the hospital electronic information system did not match.

Turning to the issue on remand, the ALJ indicated that the limited question to be answered was “whether the hospital tests run for medical lifesaving purposes on appellant and recorded as medical records .. . satisfy the business records exception to otherwise inadmissible hearsay under the Rules of Evidence.” In that regard, N.J.R.E. 803(c)(6) provides that the following statement, known as the business records exception, is not excluded by the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make such writing or other record. This exception does not apply if the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

Administrative Law JudgeIn applying the business records exception to documents relating to drug tests, the ALJ set forth a four-prong test of admissibility, namely that the documents “were made by an employee in performing her regular duties; they are prepared near the time of the observations; the source and method of information would justify admittance as evidence because it is the employee’s observations; and it is within the regular practice of the employee to document [his or her] activities in the submitted reports.” The ALJ found no evidence that the appellant’s test results were unreliable when they were recorded in 2014. The records were created contemporaneously when the appellant was admitted to the hospital due to the emergency situation and had been historically maintained in the hospital’s information system. Moreover, the ALJ indicated that the process by which the appellant’s urine was tested was reliable. Testimony had been offered in that regard. The ALJ also stated that the appellant’s own expert witness during the initial hearings testified that, for administrative purposes, the results “were presumptively reliable.” Therefore, the ALJ concluded that the appointing authority established a reliable foundation that the medical records were created contemporaneously by employees of the hospital lab who had actual knowledge of and made those records in the regular course of business. Pursuant to the business records exception, the medical records were then considered non-hearsay evidence and could be admitted. Accordingly, in conjunction with the findings previously noted in the April 14, 2016 initial decision and the testimony presented on remand, the ALJ concluded that the charges against the appellant were sustained and recommended his removal.

AnalysisIn his exceptions, the appellant objects to the ALJ’s incorporation of the Findings of Fact of the April 14, 2016 initial decision as he contends that it is beyond the scope of the Supreme Court’s remand. He argues that the initial decision also includes “gross mischaracterizations of the record” and relies on evidence that had been explicitly ruled as inadmissible by the Appellate Division. Regarding the former, the appellant asserts that the ALJ’s summary of the testimony of his expert witness is inaccurate, Rather, the expert's opinion was that the presumptive finding of a positive result for cocaine from the immunoassay testing did not support that the appellant ingested cocaine and such testing is scientifically unreliable. Moreover, the appellant underscores that the Appellate Division found that the statement of the appellant’s girlfriend was inadmissible. Thus, the appellant asserts that the Commission is prohibited from considering the statement. Therefore, the appellant maintains that the ALJ’s recommendation should be rejected.

Upon its de novo review, the Commission agrees with the AL.J’s determinations. With regard to credibility, the Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). “[Tjrial courts’ credibility findings ... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record.” See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 Nid. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALdJ’s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon review, the Commission finds that the ALdJ’s determinations in this respect were proper and that this strict standard has not been met. Clearly, the ALJ found that the three witnesses who testified on remand were credible. There was no evidence or rebuttal witnesses that the hospital records were not made contemporaneously or that there was an issue on the transfer of information to the hospital’s electronic information system. Significantly, a Lab Technician testified on the testing process, and there was no cross-examination revealing evidence that would have impeached her testimony. Thus, based on the credible testimony on remand, the appointing authority has established that the hospital records, which reveal that the appellant’s urine contained a cocaine metabolite, may be admitted into evidence pursuant to the business records exception. Accordingly, the Commission finds that the hospital records have properly been admitted into the record as competent evidence.

Therefore, since the hospital records support the appellant’s positive drug test, he is properly found guilty of the charges against him. Furthermore, while the appellant is correct that the Supreme Court did not overturn the Appellate Division's finding that the statement of the appellant’s girlfriend was not admissible as an excited utterance, not made by the patient for medical treatment, or a statement against interest and was thus unsupported hearsay, the Commission finds that her statement is now admissible as hearsay supported by a residuum of competent evidence, namely the hospital records which revealed that a cocaine metabolite was present in the appellant’s urine. In that regard, the residuum rule allows the admission of hearsay evidence before the OAL as long as some legally competent evidence exists to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness. See N.J.A.C. 1:1-15.5(b); See also e.g., Matter of Tenure Hearing of Cowan, 224 N.J. Super. 737 (App. Div. 1988). Therefore, in the instant matter, the Commission finds that the ALJ relied upon sufficient legally competent evidence presented at the OAL on remand, namely the hospital records, in conjunction with the statement of the appellant’s girlfriend that the appellant ingested cocaine, to make her determinations to uphold the charges and the appellant’s removal. While the appellant argues that the ALJ’s findings were “gross mischaracterizations of the record” as they pertained to the testimony of the appellant’s expert witness, the Commission emphasizes that in administrative proceedings guilt is found by a preponderance of the evidence and the burden of proving major disciplinary charges against an employee rests with the appointing authority. See N.J.S.A. 11A:2-21 and N.J.A.C. 4A:2-1.4(a). Even accepting the appellant’s description of his expert's testimony, the Commission is unpersuaded that the appellant’s test results were not accurate. As noted, the appellant’s girlfriend stated that the appellant had taken a “bump” of cocaine and credible witnesses testified as to the reliability of the test as well as the recording of the results. Accordingly, upon a review of the totality of the record, the Commission finds that the appointing authority has met its burden of proof by a preponderance of the evidence that the appellant is guilty as charged.

As to the penalty, the Commission’s review is also de novo. In imposing a penalty, the Commission, in addition to considering the seriousness of the underlying incident, utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.J. 500 (1962). However, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). In this case, a review of the appellant’s past disciplinary history is unnecessary since it is clear that removal is the proper penalty based on the egregious nature of the offense and the fact that the appellant is a Police Officer.

In that regard, the Commission is ever mindful of the high standards that are placed upon law enforcement personnel. Municipal Police Officers hold highly visible and sensitive positions within the community and the standard for the position includes good character and an image of utmost confidence and trust. It must be recognized that a municipal Police Officer is a special kind of public employee:

His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents 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 . . . See Moorestown v. Armstrong, 89

N.J. Super. 560, 566 (App. Div. 1965), cert. denied, 47 N.J. 80 (1966).

See also In re Phillips, 117 N.J. 567 (1990).

Furthermore, the Commission notes that a positive test result for drug use has been held by the Commission to warrant removal from employment for law enforcement employees. See e.g., In the Matter of Bruce Norman, Docket No. A- 5633-03T1 (App. Div. January 26, 2006), cert. denied, 186 N.J. 603 (2006) and In the Matter of Christopher Angelini, City of Trenton, Docket No. A-0874-12T (December 23, 2013). Accordingly, the Commission concludes that the penalty imposed by the appointing authority is neither unduly harsh nor disproportionate to the offense and should be upheld.

ORDER

The Civil Service Commission finds that the appointing authority's action in removing the appellant was justified. Therefore, the Commission affirms that action and dismisses the appeal of Corey Corbo.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.