Norhan Mansour, CSC Docket No. 2023-1987

BackgroundThe appeal of Norhan Mansour, Police Officer, Jersey City Police Department, removal, effective March 1, 2023, on charges, was before by Administrative Law Judge Kimberly A. Moss (ALJ), who rendered her initial decision on June 21, 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 2, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and her recommendation to grant the appellant’s motion for summary decision and reverse the removal.

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 as the ALJ’s findings and conclusions in reversing the removal was based on her thorough assessment of the record and are not arbitrary, capricious, unreasonable or legally incorrect.

The Commission notes that the ALJ’s decision was based on her determination that there were no material issues of fact in this matter in dispute. In this regard, the ALJ concluded that the removal was properly reversed under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). She further found that federal law did not preempt CREAMMA. Specifically, the ALJ indicated that:

Administrative Law JudgeI am not persuaded by the respondent's arguments that the federal law cited by the respondent in its brief preempts the CREAMM Act as it applies to police officers. There is an obvious conflict between the CREAMM Act, which legalizes the personal use of marijuana in New Jersey, and federal law, which stills considers marijuana an unlawful controlled substance, and this conflict was recognized by the State of New Jersey Legislature when it enacted the CREAMM Act.

AnalysisIn enacting the CREAMM ACT, the State Legislature recognized that the personal use of cannabis remains illegal] under federal law, and in the CREAMM Act itself, our Legislature expressly directs law- enforcement agencies in New Jersey not to cooperate with or assist the federal government in enforcing these federal laws...

Administrative Law JudgeThe respondent argues that police officers are required to possess a firearm and regularly receive ammunition as a condition of their job duties, and because of this, the federal law cited above, 18 U.S.C. § 922 and 21 U.S.C. § 812, preempts the CREAMM Act. I am not persuaded. The respondent did not offer a sufficient factual or legal basis to support this position, and I cannot conclude that “conflict preemption” exists here. Conflict preemption applies when “it is impossible for a private party to comply with both state and federal requirements, or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hager v. M&K Consir., 462 N.J. Super. 146, 153 (App. Div. 2020) (citing English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (first citing Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-148 (1963), and then quoting Hines v. Davidowitz, 312 U.S. 52 (1941)), aff'd, 246 N.J. 1 (2021). The respondent has failed to demonstrate that a “positive conflict” exists between the CREAMM Act and the federal law cited because even if marijuana consumption remains unlawful federal law, nothing in the CREAMM Act requires anyone to violate federal law, and while the CREAMM Act provides immunity from State prosecution and from adverse employment actions, it does not purport to offer any immunity from any violation of federal law — the federal government is still free to prosecute cannabis users in New Jersey even though State prosecutors and law enforcement may not.

AnalysisFinally, the respondent adds that the ATF’s Firearms Transaction Record, Form 4473, states that an unlawful use of marijuana is prohibited from receiving or possessing a firearm. This Form is used when a person proposes to purchase a handgun from a

Federal Firearms License Holder, and the respondent does not even assert that Lopez (sic) is required to fill out this form as part of his (sic) job duties. In fact, pursuant to N.d.S.A. 2C:396(a)(7)(a), municipal police officers are exempt from the requirement to have a firearms permit to carry a firearm in any place in the State, provided they have had firearms training in the Police Academy and qualify each year pursuant to N.J.S.A. 2C:39-6G). The respondent does not provide sufficient legal support to conclude that the appellant cannot carry a weapon as a police officer because of a positive drug test for THC.

Upon its de novo review of the record, as indicated above, the Commission agrees with the ALJ’s determinations that federal law does not preempt CREAMMA; that Mansour could carry a service weapon without violating federal law; and that the facts of this matter demonstrate that the appellant’s termination violated CREAMMA.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.d.A.C. 4A:2-2.10 from the first date of separation without pay until the date of reinstatement. Moreover, as the removal has been reversed, the appellant is entitled to reasonable counsel fees pursuant to N.d.A.C. 4A:2-2.12.

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 or counsel fees 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 her position.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was not justified. The Commission therefore reverses that action and grants the appeal of Norhan Mansour. The Commission further orders that the appellant be granted back pay, benefits, and seniority from the first date of separation without pay until the date of reinstatement. The amount of back pay awarded is to be reduced and mitigated as provided for in N.d.A.C. 44:2-2.10. 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.

The Commission further orders that counsel fees be awarded to the attorney for the appellant pursuant to N.J.A.C. 4A:2-2.12. An affidavit of services in support of reasonable counsel fees 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.e/.A.C.

4A:2-2.10 and N.Jd.A.C. 4A:2.12, the parties shall make a good faith effort to resolve any dispute as to the amount of back pay and counsel fees. However, under no circumstances should the appellant’s reinstatement be delayed pending resolution of any potential back pay or counsel fee dispute.

The parties must inform the Commission, in writing, if there is any dispute as to back pay or counsel fees 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.