Richie Lopez, CSC Docket No. 2023-631

BackgroundThe appeal of Richie Lopez, Police Officer, Jersey City Police Department, removal, effective August 23, 2022, on charges, was heard by Administrative Law Judge Susana E, Guerrero (ALJ), who rendered her initial decision on April 1, 2024. Exceptions were filed on behalf of the appellant, and a reply to the exceptions was filed on behalf of the appointing authority.

AnalysisHaving considered the record and the attached 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 May 1, 2024, accepted and adopted the Findings of Fact and Conclusions as contained in the ALJ’s initial decision and her recommendation to uphold the removal.

It is noted that the appellant was removed on charges of conduct unbecoming a public employee and a violation of department rules relating to his positive test for cannabis/marijuana. The ALJ had originally rendered an initial decision on January 19, 2023, reversing the appellant’s removal. At that time, exceptions were filed on behalf of the appointing authority, and a reply to the exceptions was filed on behalf of the appellant. Upon its de novo review, the Commission remanded the matter to the Office of Administrative Law (OAL) for further hearing to develop a factual record as to how the appellant obtained and ingested the cannabis/marijuana. See In the Matter of Richie Lopez (CSC, decided February 22, 2023).

The Commission now makes its final comments. As indicated above, the Commission thoroughly reviewed the exceptions filed by the appellant in this matter. The Commission finds the exceptions unpersuasive as the ALJ’s findings and conclusions in upholding the removal was based on her thorough assessment of the record and are not arbitrary, capricious, unreasonable or legally incorrect. In this regard, the Commission notes that the ALJ’s findings regarding possible accidental ingestion of cannabis/marijuana were substantially based on her assessment of the credibility of the appellant. The Commission acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, 1s generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 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 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Jd. 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 exceptions filed by the appellant are not persuasive in demonstrating that the ALJ’s credibility determinations, or her findings and conclusions based on those determinations, were arbitrary, capricious or unreasonable. In this regard, the ALJ concluded that:

[Ljopez was not a credible witness, and I afford his testimony no weight.

His testimony concerning his “accidental” and “unknowing” ingestion of cannabis at his friend’s house was entirely unconvincing. It is difficult to believe that any reasonable officer would consume gummies and chocolate found in an unlabeled Ziploc bag in someone else’s home and not, at a minimum, question the friend about it or suspect that it may contain cannabis. Notably, Lopez’s friend did not testify at the hearing to corroborate Lopez's account. Moreover, I was not persuaded by

Lopez’s unconvincing explanation as to why he never informed the

[Jersey City Police Department (JCPD)] that he may have accidentally ingested cannabis. While he testified that he was advised by counsel not to inform the JCPD that his ingestion of cannabis was accidental, this alleged advice constitutes uncorroborated hearsay. Lopez’s former counsel could have testified at the hearing to corroborate his testimony but did not.

Administrative Law JudgeGiven my consideration of the record, including the documentary evidence, testimony presented at the hearing, and my assessment of its credibility, I FIND that Lopez has failed to demonstrate by a preponderance of the credible evidence that his ingestion of cannabis/marijuana was unintentional or accidental. I further FIND that Lopez presented no evidence to demonstrate that the cannabis/marijuana he ingested prior to the random drug test on

AnalysisSeptember 14, 2021, was regulated. Since there was no regulated market for recreational cannabis in New Jersey prior to April 21, 2022,

Lopez had no prescription for cannabis, and the record is bereft of any evidence that the marijuana/cannabis consumed was regulated, I also

FIND that the cannabis/marijuana used by Lopez prior to testing was unregulated.

Thus, the Commission finds nothing in the record or the appellant’s exceptions to question those determinations or the findings and conclusions made therefrom.

Further, the Commission is unpersuaded by the appellant's fundamental fairness argument. The appellant’s drug screening took place on September 14, 2021, and the positive result came back on October 19, 2021. Therefore, 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). The fact that his removal was effective August 23, 2022, and at that time law enforcement officers could purchase and use regulated cannabis is irrelevant. The appellant’s transgression occurred at a time when there was no regulated recreational cannabis available in New Jersey.

Similar to its review of the underlying charges, the Commission’s review of the penalty is de novo. In addition to considering the seriousness of the underlying incident in determining the proper penalty, the Commission utilizes, when appropriate, the concept of progressive discipline. West New York v. Bock, 38 N.dJ. 500 (1962). Further, it is well established that where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of an individual’s disciplinary history. See Henry v. Rahway State Prison, 81 N.J. 571 (1980). It is settled that the principle of progressive discipline is not a “fixed and immutable rule to be followed without question.” Rather, it is recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. See Carter v. Bordentown, 191 NJ. 474 (2007). In this regard, the Commission notes that even when a law enforcement officer does not possess a prior disciplinary record after many unblemished years of employment, the seriousness of an offense may nevertheless warrant the penalty of removal where it is likely to undermine the public trust. The Commission emphasizes that a law enforcement officer is held to a higher standard than a civilian public employee. A Police Officer holds a highly visible and sensitive position within the community, whose primary duty is to enforce and uphold the law. The position represents law and order to the citizenry. A Police Officer also carries a service revolver and is constantly called upon to exercise tact, restraint and good judgment in relationship with the public. Thus, a Police Officer must present an image of personal integrity and dependability in order to have the respect of the public. See Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), cert. denied, 47 N.eJ. 80 (1966). See also, In re Phillips, 117 N.J. 567 (1990). In the instant matter, the appellant’s taking of unregulated cannabis was clearly egregious enough to warrant removal. His actions were in direct contradiction of New Jersey Attorney

General’s Law Enforcement Testing Policy and the appointing authority’s drug testing policy. The appellant’s actions clearly undermine the public trust. Accordingly, it is clear that removal is the appropriate penalty.

ORDER

The Civil Service Commission finds that the action of the appointing authority in removing the appellant was justified. The Commission therefore affirms that action and dismisses the appeal of Richie Lopez.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.