Eric Beagin City of Paterson, CSC Docket No. 2016-1336

BackgroundThe appeal of Eric Beagin, Fire Fighter, City of Paterson, Fire Department, removal effective September 18, 2015, on charges, was heard by Administrative Law Judge Leslie Z. Celentano (ALJ), who rendered her initial decision on October 24, 2019. Exceptions were filed on behalf of the appointing authority and a reply to exceptions was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, including a thorough review of the hearing testimony!, exceptions and reply, the Civil Service Commission (Commission), at its meeting on December 4, 2019, did not adopt the ALJ’s recommendation to reverse the removal. Rather, the Commission ordered that the removal of the appellant be upheld.

DISCUSSION

The appellant was terminated on September 18, 2015 on charges of conduct unbecoming a public employee and other sufficient cause. Specifically, the appointing authority alleged that the appellant failed a drug test by testing positive for oxycodone. Upon the appellant’s appeal to the Commission, the matter was transmitted to the Office of the Administrative Law (OAL) for a hearing as a contested case.

1 It is noted that the summary of the witness testimony presented later in this decision is based on the Commission’s own review of the testimony presented at the hearing. While this summary may have a somewhat different focus, it is substantially consistent with the ALJ's recitation of the testimony in the initial decision.

Administrative Law JudgeIn her initial decision, the ALJ noted that the parties entered into a stipulation that the appellant would not contest the random drug testing process or the chain of custody of the sample. Accordingly, the only issue the appellant contested was the reliability and trustworthiness of the drug-testing process at the State Laboratory (Lab). Counsel for the appellant also stipulated on the record that if the testing was found to have been reliable the termination would be upheld, but if not, then the termination would be reversed. The ALJ found that it was undisputed that the appellant, as a Firefighter, was subject to the appointing authority’s random drug testing policy. The appellant’s urine sample was submitted on July 17, 2015 to the State Lab, and on July 21, 2015, the test results provided by the Lab indicated that the appellant tested positive for oxycodone.

AnalysisThe appointing authority’s expert witness, Dr. Robert Havier, the Acting Director of the Lab, testified that samples that test above 100 nanograms per milliliter (ng/mL) for oxycodone are considered positive and the appellant’s sample tested 114 ng/mL. Concerning the testing process, Havier explained that when a urine sample is brought to the Lab, the urine sample is initially screened by an immunoassay, which determines whether the sample is positive for any of the drugs that the Lab is testing for. Then, if a sample tests positive, it must be confirmed by a more defined technique, gas chromatography, mass spectrometry (GC/MS), utilizing a separate machine. To ensure that the instruments are accurate, the Lab calibrates the instrument using calibrators. Calibrators are negative urine specimens prepared by the analyst, which are put into calibrator solutions, which are known concentrations of the drug that the Lab is looking for. The Lab looks to establish a linear relationship between the instrument’s response to each of those calibrators. The Lab analyzes the specimen and gets a response by the instrument. This allows the Lab to translate the instrument’s response to a concentration based on that linear relationship. Only one instrument is used and there are five or six calibrator solutions of different concentrations utilized to establish the linear relationship. The analyst has the option of eliminating as many as two out of five calibrators, which means that the Lab needs at least three points to establish a linear relationship.

Havier indicated that in this case five calibrators were used. Since the Lab used five calibrators, it needed at least three out of the five calibrators to generate a linear relationship and three calibrators did come back accurate. Further, the other calibrators came back within 20 percent of the expected variation from the expected concentration, which is the industry standard for acceptability of an equipment calibration analysis. Havier confirmed that he has been working in the Lab for 40 years and the cutoffs and procedures are well established based on the federal government's urine testing program for the military. Havier explained that the acceptability of the control sample is based on the instrument response and the concentration that is determined from the linear relationship. However, the analysis of an individual’s actual sample is based solely on the value that is obtained after the accuracy of the machine is determined. Havier emphasized that the analysis of the calibrations was accurate since the analysis returned three accurate results and the other two values were within a 20 percent variation for those samples with known concentrations. However, he explained that once the machine is determined to be accurate, since the Lab does not know what the concentration is of the donor sample, the value that is obtained is relied upon. Concerning another individual’s sample that was tested just prior to the appellant’s sample being tested, Havier confirmed that it was 12,119 ng/mL, which is an unusually high result. However, he noted that there was an indication that said, “Blank review passed,” which meant that a blank sample was run before the appellant’s test to show that the machine was cleaned before the appellant’s test. Havier stated that a blank sample is run before and after each test, and if there is no presence of any drug, the analyst would circle the review as passed indicating no carryover from any previous sample into that blank. In this case, all the blanks passed the test as there was no presence of any drug in any of the blank samples.

The appointing authority’s expert witness, Dr. Lyle Hayes, testified that the labs he directs are certified by New York State and the College of American Pathologists (CAP). He believed that the New Jersey State Lab was in the process of applying for CAP certification in 2016. However, at the time of the appellant’s test in 2015, the Lab was not CAP certified. Hayes stated that the calibrators that were 100 ng/mL tested higher than the expected value in the State Lab. Therefore, he concluded that the machines were biased high. Further, since the appellant’s sample tested lower than the calibrators or controls, he opined that the appellant's sample should be considered below the cutoff for a positive test.

Additionally, Hayes reviewed the Lab’s 2016 CAP certification and during the certification process, there were concerns about interference with other similar drugs and cross-contamination. In this case, given that there was a very high specimen that was tested before the appellant’s sample, he was concerned that the high results in the appellant’s matter were caused by carry over from the prior specimen. Hayes’ overall conclusion was that the appellant’s results should have been reported as negative because the control samples with a known concentration of 100 ng/mL when calibrating the GC/MS equipment were biased higher than the appellant’s sample, notwithstanding that his sample was higher than 100 ng/mL (which is the cutoff for a positive test). He also stated that, since the Lab was not CAP certified at the time of the test, he had an overall lack of confidence in the complete evaluation of the Lab since there were no outside checks and there was no check on the interference or possible interference. He stated that this is general forensic practice for a certification.

In response, Havier testified that the Lab became CAP certified in 2016 and the Lab addressed the concerns that were indicated during the certification process and no deficiencies were actually found. He indicated that the Lab used the same procedures that it used to test the appellant’s sample that were used after the Lab received CAP certification.

Administrative Law JudgeThe ALJ indicated that significant confusion existed between the documents submitted into evidence and Havier’s testimony, his assertion as to the acceptable variation or deviation application to the GC/MS test, and the notion of an accepted degree of error for control samples. The ALJ stated that no explanation was offered as to why the 20 percent error margin is applicable to the samples in the GC/MS procedure, but not to the appellant’s specimen and there was only vague reference to an “industry standard.” She presented that if the 20 percent error margin were applied to the appellant’s specimen, that would bring his result below the cutoff of 100. The ALJ concluded, with no justification for the acceptability of a 20 percent variation only for control samples with a known concentration, there was no reason and no support for not applying the same error margin to the appellant’s specimen. Therefore, the ALJ found that that the appointing authority did not meet its burden of proof and recommended that the removal be reversed.

AnalysisIn the appointing authority’s exceptions, it argued that it had proven by a preponderance of the evidence that the appellant’s specimen was positive for oxycodone. It argued that Havier testified how the equipment used to test the appellant’s sample was verified as being accurate based on the 20 percent variation standard, which is an industry standard for the acceptability of an analysis that is established by the federal government’s urine testing program for the military. Further, the blank samples produced a negative sample, as they should. Additionally, Havier testified that at least three of the five calibrators must establish a linear relationship (i.e., almost identical readings to those of the known concentrations) and that the reading from the other calibrators not used must be within 20 percent of the cutoff for the equipment so as not to invalidate the equipment as inaccurate. However, the ALJ ignored Havier’s testimony because no additional testimony or documents were provided. Instead, the ALJ accepted the appellant’s argument, which was a simplistic and incorrect mathematical “theory” that since the appellant’s sample tested below some of the calibrators or controls, then his sample should have been deemed as being below the cutoff. However, there was no testimony or documentary evidence to support this theory. It notes that Hayes did not testify that the application of the “20% variation” to the validation of the testing equipment is inappropriate and is not the process used by testing facilities. The appointing authority argues that if the “20% variation” was not considered the “industry standard,” Hayes would have testified as such. However, no such testimony was elicited. Therefore, unless the ALJ found that Havier’s testimony was not credible, the appointing authority met its burden of proof as Havier was the only witness who addressed the “20% variation” standard.

Havier consistently testified that if three out of the five calibrators were almost identical to the control standards and the remaining tests were within the allowable “20% variation,” then the donor's sample result is deemed accurate without adjusting for any variation. He reiterated that the calibrators are to establish the reliability of the instrument and not the validity of the urine sample being tested. However, Hayes never testified that the standards that Havier described are not the industry standard. Instead, the ALJ substituted her own opinion as to how the drug testing process should operate in place of the expert testimony and the process that has been in place for 40 years.

In the appellant’s reply to the exceptions, the appellant highlights that the machine used to test his sample indicated a higher amount of the defending metabolite in a control sample than in the appellant’s sample. He asserts that the appointing authority had multiple opportunities to explain why carefully measured urine brought into the Lab as a control sample came in higher than the appellant’s sample, but it failed to do so. Further, the appellant argues that the State Lab failed to follow its own requirements concerning cleaning the equipment, flushing the equipment, and running test samples. He believes that according to the Lab’s requirements, his sample came up negative. The appellant highlights that on all occasions, the Lab’s purchased urine that was supposed to have 100 nanograms per milliliter, the cutoff for a positive and negative result, was testing higher than his sample. Therefore, the appellant’s expert testified that the machines were biased high. The appellant argues that there is nothing in the record to support the idea that human urine, certified to come out at 100 ng/mL, which comes out at higher numbers than human urine from the appellant, should be given some different standard of review. He asserts that there is no document or protocol that exists that human urine tests samples should have different treatment from the appellant’s sample. The appellant argues that Havier’s testimony that the test urine gets the benefit of 20 percent variation, but the sample urine does not is an argument that does not make sense and the ALJ correctly decided the matter.

Upon its de novo review of the record, including an extensive review of the testimony provided at the hearing, the Commission does not agree with the ALJ’s recommendation to reverse the removal. Rather, for the reasons stated below, the Commission finds that the appointing authority sustained all of the charges and upholds the appellant’s removal.

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). “(T]rial 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. Locurio, 157 N.J. 468, 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 ALJ’s decision if it is not supported by the 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). However, this standard for rejecting a lay witness credibility determination does not apply in the instant matter since the credibility determinations are based on the opinions of expert witnesses. Thus, such deference need not be afforded. Regardless, for the reasons set forth below, the Commission disagrees with the ALJ’s conclusions regarding the expert testimony.

Administrative Law JudgeIn this matter, the ALJ concluded that, without further testimony or documentary evidence concerning the “industry standards,” the appointing authority had not met its burden of proof. Specifically, the ALJ wanted further support to explain the acceptability of a 20 percent variation for contro] samples with a known concentration, but that the 20 percent variation was not applied to the appellant’s sample. However, the Commission has reviewed the testimony from the hearing and does not have such concerns. Havier testified that the cutoffs and procedures that the Lab used in calibrating the equipment in this matter were industry standards that are well established based on the federal government's urine testing program for the military.2. A review of testimony does not indicate that at any point did the appellant’s attorney ask Hayes if the industry standards that Havier describes were, in fact, the industry standards. At no point during Hayes’ testimony did Hayes offer that the standards that Havier describes were not the industry standards. A review of Hayes’ report that was submitted into evidence does not question the standards that Havier describes. Further, Hayes’ testimony concerning his “theory” did not cite any industry standards as to the basis for his conclusion. While Hayes testified regarding his “opinion” about the appellant's test result, he did not refute that the industry standard exists or that the State Lab inappropriately followed the standard. As such, the Commission finds that Havier’s testimony regarding the industry standards was credible and persuasive. Additionally, while Hayes suggested that there may have been carry over from an extremely high specimen that was tested just before the appellant's specimen was tested, Havier testified that there was an indication that said, “Blank review passed,” which meant that a blank sample was run before the appellant's test to show that the machine was cleaned before the appellant’s test. Therefore, there is no evidence that there was carry over. Moreover, Hayes’ attempts to discredit the Lab’s processes based on its lack of a CAP certification as that time was successfully rebutted by Havier’s subsequent testimony. In other words, there is no reason to find that the appellant’s positive result for oxycodone, which resulted from a process that followed the undisputed industry standards that the State Lab has used for 40 years, was not accurate. Thus, the Commission finds that the appointing authority has sustained its burden of proof demonstrating by a preponderance of the evidence that the appellant was guilty of the charged levied against him.

Analysis2 The Commission's research did find some references to the industry standards that Havier presented in military drug testing and other types of testing. However, it is noted that the Commission is not relying on this research. Instead, it is relying on Havier's expert testimony on industry standards, which was not disputed by the appellant's expert.

ORDER

The Civil Service Commission finds that the action of the appointing authority in imposing a removal was justified. Therefore, the Commission affirms that action and dismisses the appeal of Eric Beagin.

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