Steven Jones, CSC Docket No. 2021-343

BackgroundThe appeal of Steven Jones, County Police Officer, Union County, Department of Public Safety, of his removal, effective January 14, 2020, on charges, was heard by Administrative Law Judge Kelly J. Kirk (ALJ), who rendered her initial decision on February 2, 2022. Exceptions were filed on behalf of the appellant and a reply to exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the ALJ’s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on March 23, 2022, ordered that the matter be remanded to the Office of Administrative Law (OAL).

DISCUSSION

The appellant was charged with incompetency, inefficiency, or failure to perform duties; insubordination; conduct unbecoming a public employee; and neglect of duty. Specifically, the charges stemmed from the appellant testing positive for benzodiazepines in a random drug test. Upon the appellant's appeal to the Commission, the matter was transmitted to the OAL as a contested case.

The parties stipulated that the appellant submitted to random drug testing on November 21, 2019, in accordance with guidelines from the State Attorney General. The appellant's toxicology report indicated that his specimen tested positive for benzodiazepines, specifically for oxazepam. The appellant denied having a valid prescription for oxazepam or any other controlled substance. On November 21, 2019, the appellant acknowledged that he took over-the-counter medicines, including “advil, ibuprofen, [and] aleve,” stating that he had last taken them on November 20, 2019.

At the OAL, five witnesses testified: the appellant; James Debbie, County Police Chief; Gary Lage, Ph.D., a senior toxicologist and professor of toxicology retained by the appellant; Andrew Klein, County Police Lieutenant; and George Jackson, Ph.D., Executive Director, Department of Health, Office of the Chief State Medica] Examiner, from the laboratory which tested the appellant’s random drug sample.

Dr. Jackson testified, in relevant part, as to the chain of custody and procedures utilized by the New Jersey State Toxicology Lab, which tested one of the two urine samples taken from the appellant on November 21, 2019. Dr. Jackson testified that it was “possible” that rubbing benzodiazepine powder on the fingers could lead to oxazepam being detected at the level found in the appellant’s sample. However, he indicated that it was dependent on several factors, including how much benzodiazepine dust was on a pill being handled and that it would be diluted by the body. As such, Dr. Jackson maintained that benzodiazepine detected from this type of exposure should not exceed the screening cutoff, which is designed to rule out passive exposure.

Dr. Lage testified, in relevant part, that oxazepam could get into the system by handling it and be detected at the level found here. Dr. Lage also stated that he believed the appellant’s positive urine result for oxazepam was “insufficient to scientifically determine any potential drug use by Mr. Jones, and in [his] opinion [was] due to his concentrated urine and the laboratory margin of error.”

The appellant was the only witness to testify about the direct circumstances surrounding his claimed accidental drug usage. He stated that he had never used recreational drugs. The appellant indicated that when his superiors told him he had tested positive and asked if he had taken any prescription medications, he responded that if he took anything, it would have been over-the-counter medication. The appellant stated that he did not initially recognize what might have led to his positive urine test. He indicated that after he retained an attorney, the attorney had him bring all of his wife’s medications and her medical records to a meeting. They took photographs of his wife’s pillbox and two pills, diazepam! and aspirin.? The appellant’s wife had a prescription for diazepam and they realized that the diazepam must have come from her pillbox, but the appellant remained unsure of exactly how he ingested it. The appellant stated that in the week before the drug test, he was experiencing some pain and soreness after physical training at the police academy and took over-the-counter medication for relief. He explained that he had asked his wife if she had any Advil, ibuprofen or Aleve. She responded that she had some in her pillbox. He further stated that his wife normally put narcotics in her pillbox with over-the-counter medication. The appellant indicated that he did not show her the pill he was taking before ingesting it. He explained that on November 21, 2019, when he was listing the medication he had taken within the preceding 30 days on paperwork associated with the subject drug test, he did not remember taking aspirin, so he did not list it with the other over-the-counter medications he had taken during that timeframe. It was only after his attorney showed him a medication sheet that he made that connection. The appellant denied taking benzodiazepines to relieve pain. The appellant also acknowledged that the diazepam did not look like Advil, ibuprofen, or Aleve. The appellant also stated during the hearing that he did not have his wife testify because he did not want to put any undue stress on her or put her nursing license in jeopardy.

1 The record indicates that diazepam (Valium) is a benzodiazepine which is metabolized to nordiazepam, oxazepam, and temazepam, all of which may be detected in a urine sample after diazepam use. 2 The ALJ stated that the photograph of the pillbox showed at least six different types of pills, including both prescription and over-the-counter pain relievers. Among these pills were Advil, Aleve and 81 mg low-dose aspirin. The ALJ further indicated that the diazepam and low-dose aspirin were similar in color and somewhat similar in size.

Administrative Law JudgeThe ALJ found that the appellant commenced his employment with the appointing authority in 2010. Prior to that time, the appellant had been employed as a Correctional Police Officer with the Department of Corrections (DOC) for five years and had 23 years of active and reserve service with the United States Navy (Navy). The appellant had been subject to drug testing by the appointing authority, DOC and Navy. He had been subject to hundreds of drug tests and had never tested positive prior to November 21, 2019. Prior to the instant matter, the appellant did not have any major discipline in his record. One of two samples the appellant gave on November 21, 2019, “Sample A,” was tested by the State Toxicology Lab.3 The sample tested positive for benzodiazepines, showing oxazepam at a concentration of 140 ng/ml, which was in excess of the 100 ng/ml cutoff concentration.

The ALJ noted that the appellant cited several cases in which the removal for a positive drug test was reversed. However, the ALJ found these cases distinguishable from the instant matter. In this regard, the ALJ observed that the appellant’s wife did not testify and found there was no corroboration for the explanation he provided. In particular, the ALJ noted there was no testimony to corroborate that the pills in the photograph presented by the appellant were generally the same pills contained in the pillbox prior to the November 21, 2019, drug test, and that there was no testimony about why the pillbox contained the pills that it did or why the prescription and non-prescription medications were co-mingled. The ALJ also indicated that no testimony was presented about the appellant’s wife taking low-dose aspirin or why the appellant would have taken an 81-mg low-dose aspirin for pain relief. The ALJ concluded that testing positive for a prescription drug without a prescription was unbecoming a Police Officer. Therefore, the ALJ concluded that the charge of conduct unbecoming a public employee was sustained. However, the ALJ dismissed the remaining charges of incompetency, inefficiency, or failure to perform duties; insubordination; and neglect of duties, as the ALJ found no evidence in the record to support those charges. As to the penalty, the ALJ observed that termination is generally supported by case law, except in circumstances where there is a credible explanation for the positive result that is supported by evidence. The ALJ found that the appellant had no valid prescription for benzodiazepines and there was no credible explanation supported by evidence for oxazepam to otherwise have been in his urine. Accordingly, the ALJ recommended that the appointing authority’s removal of the appellant be sustained.

Analysis3 The second sample, “Sample B,” was initially placed in storage, to be sent out to another lab under chain of custody if requested. Sample B also tested positive for oxazepam in excess of the cutoff.

In his exceptions, the appellant argues, in relevant part, that he provided a credible explanation, as his accidental ingestion of a controlled substance that was corroborated by substantial evidence and that the ALJ erred by imposing a far stricter burden on him than is required under Civil Service precedent. The appellant argues that applicable case law demonstrates that that an employee with no prior disciplinary history no prior history of substance abuses, and a credible, reasonably corroborated explanation for accidental ingestion will be given the benefit of the doubt by the Commission and that the level of corroboration he provided exceeds those of the cases he cites. He proffers that the ALJ did not make a finding that he was not credible as a witness. Rather, she found insufficient corroboration for his testimony. However, he disputes the ALJ’s conclusion in this regard, maintaining that the testimony of both experts proves that his explanation for accidental ingestion was possible and corroborates the idea that he only took a trace amount accidentally. Given that evidence, his lack of disciplinary history and his credible explanation, he argues that the Commission should grant his appeal and dismiss the charges against him or modify his removal to a lesser penalty.

In its reply, the appointing authority asserts, in relevant part, that the ALJ correctly appled the facts and the law to this case. It argues that there was insufficient proof that that the appellant’s explanation of accidental ingestion was reasonable, as the testimony of the witnesses merely indicated that it was a possibility. In addition, it contends that his decision to ingest a pill from his wife’s pillbox without double checking with her that it was the over-the-counter medication he supposedly intended to take was unreasonable, given his testimony that he knew she routinely mixed narcotics with over-the-counter medication in her pillbox. It also contends that the appellant’s failure to list aspirin among the medication he believed he was taking rebuts his explanation. Furthermore, it asserts that the agreement of its witness, Dr. Jackson, regarding exposure to oxazepam was merely a hypothetical example without any evidential support by the appellant and unrelated to his explanation and was insufficient to establish that it was likely to have occurred in this case. Moreover, the appointing authority argues that the appellant's disciplinary history is irrelevant and not a defense to his conduct, as it is not an element of the

Attorney General’s Guidelines for enforcement of the drug testing policy or termination for a positive drug test. Finally, given these considerations, the appointing authority asserts that the ALJ correctly found the circumstances of this matter distinguishable from the accidental ingestion cases cited by the appellant.

Upon its de novo review of the record, the Commission finds that the initial decision contains insufficient information for it to make a reasoned and informed decision and that it is necessary to remand this matter to the OAL for further development of the record as it relates to the circumstances surrounding the appellant’s ingestion of diazepam. In this regard, the Commission observes that there may be relevant evidence which addresses the multiple outstanding questions about the contents of the pillbox noted by the ALJ, the rationale behind the appellant going to his wife’s pillbox for the pain relief medication he was supposedly seeking in lieu of any other location and the specific over-the-counter medication the appellant may have believed he was taking for pain relief.

Therefore, in the interest of the public and so that justice may be served, the Commission orders that the case be remanded back to the OAL for further development of the record as to the circumstances surrounding the appellant’s ingestion of diazepam, including additional witness testimony and/or documentary evidence that the parties consider relevant to this issue. Further, the Commission authorizes the ALJ, pursuant to her powers under N.J.A.C. 1:1-14.6(n), to act in its stead to compel production of relevant materials, files, records and documents and/or issue subpoenas to compel the appearance of any witness should the ALd believe that the witness or produced materials may assist in a full and true disclosure of the facts related to this issue.

ORDER

The Commission orders that this matter be remanded to the OAL for clarification and further proceedings as set forth above.