Rashon Tyson- Butler, CSC Docket No. 2021-1441

BackgroundThe appeal of Rashon Tyson-Butler, County Correctional Police Officer, Hudson County, Department of Corrections, removal, effective January 19, 2021, on charges was heard by Administrative Law Judge Ernest M. Bongiovanni (ALJ), who rendered his initial decision on July 18, 2023. Exceptions were filed on behalf of the appointing authority and a reply was filed on behalf of the appellant.

AnalysisHaving considered the record and the ALJ’s initial decision, including a thorough review of the exceptions and reply, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting of August 23, 2023, adopted the ALJ’s recommendation to modify the removal to a 30 working day suspension.

The Commission makes the following comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appointing authority in this matter. In that regard, the Commission finds them unpersuasive and not warranting extensive comment. However, in his initial decision, the ALJ relied, in part, on the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). In this regard, the ALJ stated:

[T]he Cannabis Regulatory Enforcement Assistance and Marketplace

Modernization Act (CREMMA) [sic], signed into law February 22, 2021, casts serious doubt on the enforceability of any disciplinary action, and certainly not termination, for cannabis use while not on duty.

While it is true that the CREAMMA was enacted two months after the consumption of cannabis indicated by the positive test, its prohibitions against enforcements of all disciplinary action by any State agency by the mere consumption of such cannabis appears to be prospective in nature.

Recently, as well expressed by ALJ Guerrero in her Initial Decision granting summary decision to petitioner in overturning the employee’s termination for testing positive for marijuana “It is also worth noting that there is nothing in the CREAMM Act that limits the application of this provision [prohibiting adverse actions] only to employees who ingested cannabis/marijuana after the CRC’s opening of New Jersey’s regulated recreational cannabis market in April 2022.“

IMO Richie Lopez, City of Jersey City, OAL Docket No. 08567-22, Initial

Decision (January 19, 2023),

{http://njlaw.rutgers.edu/collections/oal/search.php]}.

The Commission does not agree with the above analysis. Initially, the ALJ’s reliance on Lopez, supra, is misplaced. In that regard, the Commission did not adopt that initial decision, but rather, rejected that ALJ’s finding that CREAMMA applied to positive cannabis results that occurred prior to its effective date. As such, the Commission remanded that matter to the Office of Administrative Law where it remains pending. See In the Matter of Richie Lopez (CSC, decided February 22, 2023). In doing so, the Commission found:

In the present matter, because the regulated market had not yet begun, it would be impossible for Lopez to have used regulated recreational cannabis. As such, based on the present record, the ALJ incorrectly held that the appointing authority categorically could not take an adverse employment action against Lopez based on his positive testing result. Accordingly, the Commission rejects that determination.

Given the above, the Commission finds it necessary to remand this matter to the OAL for further proceedings. Specifically, there needs to be a hearing to develop a factual record as to how the marijuana/cannabis was obtained and ingested. Because the regulated recreational market had not yet opened, Lopez could have only ingested unregulated marijuana (which he could be terminated for), or regulated medical cannabis (for which he would have protections). There are no facts in the record establishing either scenario. Thus, on remand, a factual finding should be made as to whether Lopezs use was unregulated or not. Moreover, on remand, additional mitigating facts could plausibly be developed, such as accidental exposure, see e.g., In the Matter of Alberto Aponte, Docket No. A-1782-19 (App. Div. July 20, 2021), or prescribed use of a derivative product like CBD, see, e.g., In the

Matter of William Shorter, Docket No. A-3150-18T3 (App. Div. May 4, 2020).

However, different from Lopez, in this matter the ALJ’s misapplication of CREAMMA is not fatal. In this regard, assuming that the appellant’s ingestion was of unregulated marijuana, the fact that the ALJ found such ingestion wholly “unintentional,” supports that he was properly only found guilty of the charges of neglect of duty for not submitting a negative sample. See e.g., Aponte, supra. The Commission notes that the ALJ’s findings in this regard were based predominantly on his assessment of the appellant's testimony, which he found credible.

In this regard, upon its de novo review of the record, 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 Nf. 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 also, In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 Ne. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. 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 sufficient credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri u. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). In this matter, the ALJ found that the appellant testified credibly about the incident. In its review of the exceptions filed by the appointing authority, the Commission is not persuaded that the ALJ’s credibility determinations, or his findings and conclusions based on those determinations, aside from those regarding the application of CREAMMA, were arbitrary, capricious or unreasonable. As such, the Commission has no reason to question those determinations or the findings and conclusions made therefrom.

Since the removal has been modified, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.A.C. 4A:2-2.10 from 30 working days after the first date of separation until the date of actual reinstatement. However, he is not entitled to counsel fees. N.J.A.C. 4A:2-2.12(a) provides for the award of counsel fees only where an employee has prevailed on all or substantially all of the primary issues in an appeal of a major disciplinary action. The primary issue in the disciplinary appeal is the merits of the charges. See Johnny Walcott v. City of Plainfield, 282 N.J. Super. 121,128 (App. Div. 1995): In the Matter of Robert Dean (MSB, decided January 12, 1993); In the Matter of Ralph Cozzino (MSB, decided September 21, 1989). In the case at hand, although the penalty was modified by the Commission, charges were sustained, and major discipline was imposed. Consequently, as appellant has failed to meet the standard set forth at

N.J.A.C. 4A:2-2.12, counsel fees must be denied.

This decision resolves the merits of the dispute between the parties concerning the disciplinary charges and the penalty imposed by the appointing authority. However, in light of 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. In the interim, as the court states in Phillips, supra, if it has not already done so, upon receipt of this decision, the appointing authority shall immediately reinstate the appellant to his permanent position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore modifies that action to a 30 working day suspension.

The Commission orders that the appellant be granted back pay, benefits, and seniority from 30 working days after the first date of separation to the actual date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.J.A.C. 4A:2-2.10. Proof of income earned, and an affidavit of mitigation shall be submitted by or on behalf of the appellant to the appointing authority within 30 days of issuance of this decision. Pursuant to N.edJ.A.C. 4A:2-2.10, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay. However, under no circumstances should the appellant's reinstatement be delayed pending resolution of any potential back pay dispute.

Counsel fees are denied pursuant to N.J.A.C. 4A:2-2,12.

The parties must inform the Commission, in writing, if there is any dispute as to back pay within 60 days of issuance of this decision. In the absence of such notice, the Commission will assume that all outstanding issues have been amicably resolved by the parties and this decision shall become a final administrative determination pursuant to R. 2:2-3(a)(2). After such time, any further review of this matter shall be pursued in the Superior Court of New Jersey, Appellate Division.