William Shorter, CSC Docket No. 2019-81

BackgroundThe Department of Corrections (DOC), represented by Jessica M. Saxon, Deputy Attorney General, petitions the Civil Service Commission (Commission) for reconsideration and a stay of the attached administrative decision, rendered on June 6, 2018, in which the Commission modified William Shorter’s removal to a 120 calendar day suspension and granted back pay, benefits and seniority.

By way of background, the appointing authority removed Shorter from his position of Correction Sergeant! on charges of conduct unbecoming a_ public employee and other sufficient cause. Specifically, the appointing authority asserted that Shorter violated departmental policy by taking cannabidiol (CBD) oil and neglecting to indicate this on the medication sheet prior to a random urine test and that his urine sample tested positive for Carboxy-THC. Upon Shorter’s appeal, the matter was transmitted to the OAL for a hearing as a contested case. The ALJ set forth in her initial decision that Shorter had been subjected to a random drug test and that he had been required to complete a Drug Testing Medication Information sheet indicating the names of all prescription and nonprescription medication he had taken in the past 30 days, the date last taken, and the prescribing physician. The results of the drug test indicated a positive result for cannabinoids (THC) that was not related to any of the medications listed on the medication form. The State Toxicologist testified that Shorter’s sample indicated THC carboxy levels of 23 nanograms per milliliter which was over the 15 nanograms per milliliter cutoff for a positive sample. When notified of the positive result, Shorter provided investigators

! Pursuant to P.L.2017, c.293, the title of Correction Sergeant has been retitled Correctional Police Sergeant.

with a handwritten note on a prescription pad dated October 20, 2107, from Russel Little, APN, indicating Shorter was under his care and was prescribed CBD oil. The ALJ found the testimony of Shorter, that he forgot to list a cannabis product he took as recently as the morning of the drug test, not credible. The ALJ stated that the appointing authority had a zero tolerance drug use policy and that Shorter failed his random drug test by testing positive for THC. With regard to the penalty, the ALJ found that DOC’s drug policy provided that the only option for a violation of the drug policy was removal. Therefore, the ALJ concluded that removal was the appropriate penalty. Upon its de novo review of the record, the Commission agreed with the ALJ’s determination regarding the charges but modified the removal to a 120 calendar day suspension. In determining the penalty, the Commission noted that Shorter had no prior major disciplinary actions since his employment began in May 2001 and his record indicated that he received one minor disciplinary action. Further, the Commission found that while it was clear Shorter tested positive for small amounts of THC, the record also indicated that the CBD oil, for which the appellant had a valid prescription, likely caused the positive result. Moreover, while Shorter should have indicated his CBD oil use on the medication form, under the circumstances his failure to do so should not result in his termination. Therefore, the Commission imposed a 120 calendar day suspension.

AnalysisIn the instant matter, DOC argues that the Commission made a clear material error by modifying the penalty of removal it had imposed on Shorter. It asserts that the Commission based its decision on the mistaken and factually incorrect reason that Shorter had a valid prescription for CBD oil. It contends that during cross examination, Little indicated that it was a note and not a prescription that he had written Shorter. Additionally, it argues that the only legal way to obtain marijuana is via a card issued by the State, which Shorter did not possess. Further, it contends that based on its procedures and on the severity of Shorter’s actions in testing positive for an illegal drug, removal was the proper penalty. Moreover, the DOC requests a stay in restoring Shorter to his position. It contends that it is likely to prevail on the merits due to the clear material error made by the Commission in the prior decision. It also asserts that it will suffer immediate and irreparable harm to the security of the correctional instruction and the public's trust of DOC should it be required to reinstate Shorter. DOC asserts that Shorter will be minimally affected upon the granting of a stay and that should he ultimately prevail, he would receive all compensation due to him. Finally, it argues that the public interest would be met by granting the stay as it would be holding correction officers to the high standard of conduct the public expects.

In reply, Shorter, represented by Frank Crivelli, Esq., argues that the Commission's decision was proper, and that no clear material error is present. He asserts that he was directed by his healthcare provider to take CBD oil for his back pain in lieu of a narcotic and/or opiate medication. Shorter adds that the CBD oil he consumed is a legal, over-the-counter medication that was purchased at his physician’s healthcare facility. Thus, a prescription was not necessary to purchase the legal over-the-counter medication. Additionally, Shorter argues that there is a plethora of evidence in the record that he was taking CBD oil before the random urinalysis and that the CBD oil was likely to have caused the positive drug result. Further, he contends that DOC has not met the standard for a stay. In this regard, he asserts that DOC is unlikely to prevail on the merits. Additionally, Shorter asserts that the DOC will not suffer any immediate harm by returning him to work and that his matter does not interfere with DOC’s interest in ensuring a drug free environment as he did not take any drugs illegally. Moreover, he is suffering substantial injury as he has not been returned to work and is suffering economically. Shorter also states that the public interest would be served best if DOC complied with an order from the Commission. Finally, Shorter argues that the Commission’s prior decision must be enforced thereby mandating his reinstatement immediately and providing him with the back pay and benefits he is owed.

In reply, DOC argues that it is disingenuous for Shorter to call CBD oil a legal medication as it caused him to fail his drug test.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding.

AnalysisFurther. N.d.A.C. 4A:2-1.2(c) provides the following factors for consideration in evaluating petitions for a stay:

1, Clear likelihood of success on the merits by the petitioner;

2. Danger of immediate or irreparable harm;

3. Absence of substantial injury to other parties; and

4. The public interest.

In the instant matter, the appointing authority argues that the Commission erred in modifying Shorter’s removal to a 120 calendar day suspension. It contends that the Commission based its decision on the mistaken and factually incorrect reason that Shorter had a valid prescription for CBD oil. It asserts that Little indicated that it was a note and not a prescription that he had written Shorter. Shorter asserts that he was directed by his healthcare provider to take CBD oil and that a prescription was not necessary to purchase a legal over-the-counter medication. The Commission agrees with Shorter. It is clear in the record that Shorter was directed by his healthcare provider to take CBD oil. Whether it was an actual “prescription” is not the seminal fact in this matter, as a prescription is not necessary for a medication that can be obtained over-the-counter. The important fact was that Shorter was directed by his health care official to take this type of medication.

DOC also argues that the Commission erred in its determination of the proper penalty. It contends that based on its procedures, zero-tolerance drug policy and the severity of Shorter’s actions in testing positive for an illegal drug, removal was the proper penalty. However, the Commission considered these issues when determining the proper penalty in its prior decision and determined that 120 calendar day suspension was the appropriate penalty. DOC has not presented any new evidence or arguments which would cause the Commission to consider a different penalty at this time.

Accordingly, based on the foregoing, DOC has not presented any persuasive evidence or arguments that the Commission erred in its prior decision and its request for reconsideration is denied. Further, as the Commission has denied the request for reconsideration on the merits, DOC’s request for a stay is also denied.

Finally, Shorter has requested enforcement of the Commission’s prior decision, which includes his reinstatement and back pay and benefits. In this regard, as DOC’s requests have been denied, it is required to immediately reinstate the appellant to his permanent position. Further, as indicated in the Appellate Division’s decision, Dolores Phillips v. Department of Corrections, Docket No. A- 5581-01T2F (App. Div. Feb. 26, 2003), the Commission’s decision will not become final until any outstanding issues concerning back pay are finally resolved.

ORDER

Therefore, it is ordered that the appointing authority’s requests for reconsideration and a stay be denied. It is further ordered that the appointing authority immediately reinstate William Shorter to his position of Correctional Police Sergeant and provide him with back pay, benefits and seniority as indicated in the Commission’s previous decision.