Christopher Carralero, CSC Docket No. 2022-3119

BackgroundThe appeal of Christopher Carralero, Police Officer, West New York, Police Department, removal, effective May 25, 2022, on charges, was before Administrative Law Judge Gail M. Cookson (ALJ), who rendered her initial decision on October 31, 2022, wherein she granted the appellant’s motion for summary decision and recommended reversing the removal. 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, 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 December 21, 2022, did not adopted the Conclusion as contained in the attached ALJ’s initial decision and the recommendation to reverse the removal. Rather, the Commission remanded the matter to the Office of Administrative Law (OAL).

The Commission thoroughly reviewed the ALJ’s initial decision and, at this time, cannot agree with her determination. In this matter, the record indicates that Carralero was terminated from employment with West New York after testing positive for a metabolite of THC. The drug screening took place on April 4, 2022, and the positive result came back on May 9, 2022. Accordingly, the drug screening took place prior to the Cannabis Regulatory Commission’s opening of New Jersey's regulated recreational cannabis market, which began on April 21, 2022. See N.J.S.A. 24:61-34(d)(2) (“[T]he [cannabis regulatory] commission shall determine the first date ... on which cannabis retailers issued licenses and conditional licenses may begin retail sales of personal use cannabis items”). Moreover, pursuant to an April 13, 2022, memorandum from the Acting Attorney General to all law enforcement chief executives regarding compliance with the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), “there should be zero tolerance for unregulated marijuana consumption by officers at any time, on or off duty, while employed in this State.” In the present matter, because the regulated market had not yet begun, it would be impossible for Carralero 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 Carralero 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, Carralero 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 Carralero’s 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).

ORDER

The Civil Service Commission remands the matter to the Office of

Administrative Law as directed above.