Jasmine Govens, CSC Docket No. 2023-220

BackgroundThe appeal of Jasmine Govens, Senior Correctional Police Officer, South Woods State Prison, Department of Corrections, removal, effective July 20, 2022, on charges, were heard by Administrative Law Judge Kathleen M, Calemmo (ALJ), who rendered her initial decision on December 27, 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, and having made an independent evaluation of the record, including a thorough review of the exceptions and reply, the Civil Service Commission (Commission), at its meeting on February 7, 2024, adopted the ALJ’s Findings of Fact and Conclusion and her recommendation to reverse the removal.

As background, on August 15, 2023, the ALJ issued an initial decision in this matter recommending that the removal be modified to a six-month suspension. In remanding the matter, the Commission noted the following:

Administrative Law JudgeIn the initial decision, the ALJ identified several issues with the chain of custody, which she found did not impact the charges, but she seemingly utilized as a mitigating factor regarding the penalty. In the

AnalysisCommission’s view, chain of custody issues should only be utilized when analyzing whether the disciplinary charges should be upheld and do not factor into the penalty. In this regard, it is well-settled that technical deviation from the Attorney General Guidelines regarding the chain of custody for drug samples do not necessarily warrant the nullification of the results of a drug test. See In the Matter of Mario Lalama, 343 N.JJ.

Super. 560 (App. Div. 2001) (Despite flaws in the chain of custody, a drug test was still valid where the record showed a “reasonable probability” that the integrity of the sample was maintained). In this matter, while the ALJ accepted the expert testimony as to the validity of the sample, the identified concerns regarding the chain of custody were apparently problematic for her. After its review, the Commission remands this matter to the Office of Administrative Law to have the ALJ specifically clarify whether the chain of custody issues served as a basis to invalidate the drug test results. If so, the charges should be dismissed completely, and the removal should be reversed. If not, the ALJ should indicate whether her originally recommended reduction in penalty remains as such absent any consideration of the chain of custody issues. No further hearing proceedings appear necessary, unless the ALJ believes such proceedings will lead to further clarification of the initial decision.

Based of the above, the ALJ further reviewed the matter, and in her December 27, 2023, initial decision, found:

Administrative Law JudgeHere, the testimony established that Govens’ sample was brought to the toxicology lab by Nicotera, a DOC employee. The toxicology lab’s document listed Watkins as the courier. This may have been a mistake, except the date of December 6, 2021, is also wrong. Dr. Jackson testified that the specimen was received on December 4, 2021, which was still two days after it was picked up by Nicotera at South Woods. Moreover, Dr. Jackson maintained that the matter could easily be resolved by reviewing the lab’s sign-in sheets. The sign-in sheets were produced and reviewed. There is no indication from the sign-in sheets that Govens’ sample was delivered on any of the dates listed on the documents. The testifying witnesses were questioned about the inconsistent dates, and no one was able to provide any explanation for the errors in the chain of custody records. Therefore, I CONCLUDE that respondent cannot show by competent reliable evidence that the chain of custody was maintained.

AnalysisIn its remand Order, the CVS (sic) expressed its view that chain of custody issues should only be utilized when analyzing whether the disciplinary charges should be upheld. The chain of custody issues, involving the inability to account for the whereabouts of the specimens for two days, no sign-in signatures evidencing receipt by the toxicology laboratory, and blatant errors within the Chain of Custody documentation — wrong courier and wrong date (R-15, DOC 143) serve as the basis to invalidate the drug test results of the appellant. Accordingly, I! CONCLUDE that respondent cannot support the charges against appellant contained in the FNDA by competent evidence.

Based on the above, the ALJ recommended reversing the removal. Notwithstanding the appointing authority's exceptions arguing to the contrary, the Commission agrees.

In this regard, in its de novo review of the ALJ’s decisions, the Commission concurs that the deviations in the chain of custody invalidated the results of the drug test. In her remand decision, the ALJ clearly differentiated this case from Lalama, supra. As detailed above, the ALJ specifically pointed to the numerous and serious deviations from the normal chain of custody, and specifically identified how those issues led to her conclusion that such deviations invalidated the appellant’s otherwise positive drug test result. The Commission finds nothing in its review of the record or the appointing authority’s exceptions to conclude otherwise.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.Jd.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.J.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 Jasmine Govens. 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../.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.

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.d.A.C. 4A:2-2.10 and N.J.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.