Mackenzie Reilly, CSC Docket No. 2024-466

BackgroundThe appeal of Mackenzie Reilly, Police Officer, Jersey City, Police Department, removal, effective August 25, 2024, on charges, was before by Administrative Law Judge Matthew G. Miller (ALJ), who rendered his initial decision on July 11, 2024. 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 14, 2023, accepted and adopted the Findings of Fact and Conclusion as contained in the attached ALJ’s initial decision and his 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 his thorough assessment of the record and are not arbitrary, capricious, unreasonable or legally incorrect.

The appointing authority’s exceptions are essentially a regurgitation of its challenges in several prior similar matters. Specifically, the appointing authority argues that the ALJ improperly reversed the removal under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) based on its conflict with federal law. This argument has been rejected by the Commission in In the Matter of Norhan Mansour (CSC, decided August 2, 2023); In the Matter of Omar Polanco (CSC, decided September 20, 2023); In the Matter of Norhan Mansour (CSC, decided July 24, 2024); and In the Matter of Omar Polanco (CSC, decided July 24, 2024). See also, In the Matter of Rashon Tyson-Butler (CSC, decided August 23, 2023); In the Matter of Richie Lopez (CSC, decided May 1, 2024); and In the Matter of Montavious Patten (CSC, decided May 1, 2024). Similarly, in this matter, the ALJ has rejected this argument after undertaking a thorough and reasoned review. Accordingly, in its de nove review and in reliance on its prior cases, the Commission agrees with the ALJ and finds that federal law does not preempt CREAMMA,; that the appellant could carry a service weapon without violating federal law; and that the facts of this matter demonstrate that the appellant’s termination violated CREAMMA.

The appointing authority also argues that the ALJ did not address the additional associated charges brought against the appellant. The Commission rejects these claims. In the initial decision, the ALJ found, regarding the additional charges:

However, irrespective of the conflict/preemption issue, respondent does point out that this case differs from Mansour and

Polanco in that Officer Reilly failed to list marijuana on his Drug Testing

Medication Information form (footnote omitted) and that this is the basis for some of the charges he is facing...

Per that March 8, 2023, departmental interview, Officer Reilly advised that he had been examined by a doctor and approved for a medical marijuana card within a day or two of his January 22, 2023, purchase. However, that card was not issued until February 17, 2023, after his purchase. Further, since sales tax was charged by the dispensary, by definition, the purchase was for recreational marijuana and not medical marijuana and it was not purchased with a prescription or per New Jersey's Medical Cannabis Program. (footnote omitted)

In other words, no matter the reason for the purchase, by definition, the marijuana purchased by Officer Reilly was neither a

“medication” nor was it taken for medicinal purposes but was rather for (legal) recreational use. In reviewing the drug disclosure form questions, there is no requirement to list legally obtained recreational intoxicants (t.e., alcohol) on the form. Is this a “technicality”? Certainly. However, practically all of the decisions on this issue have been based on complicated, technical interpretations of the law and at the time of the purchase;

a. Officer Reilly had not yet received his Cannabis Card. b. The dispensary charged sales tax on the transaction. c. Sales tax is only charged for purchases of recreational marijuana.

Respondent argues that by “failing to list marijuana or cannabis on the (form) as part of his random drug test,” Officer Reilly was guilty of “willful refusal and false reporting,” and summary decision must be granted in its favor and the dismissal upheld.

Administrative Law JudgeI disagree.

I FIND that the undisputed facts demonstrate that at the time the form was completed (February 2, 2023), Officer Reilly had not been issued a medical cannabis card and had bought the marijuana from a legal dispensary for recreational purposes under the authority of

AnalysisCREAMMA and NOT under the auspices of N.</.S.A. 24:61-1, et seq. (the Jake Honig Compassionate Use Medical Cannabis Act).

I therefore CONCLUDE that there was no requirement for

Officer Reilly to list marijuana on the Drug Testing Medication

Information Form since his utilization of same was not covered by the disclosures required by it. Since he was not required to disclose his use of cannabis on the form, any discipline based upon that “failure” is clearly improper and shall be nullified.

Upon its review of the record, the Commission agrees with the above analysis and finds nothing in the record or the appointing authority’s exceptions establishing that the ALJ’s determinations in this regard were arbitrary, capricious or unreasonable.

Since the removal has been reversed, the appellant is entitled to be reinstated with mitigated back pay, benefits, and seniority pursuant to N.J.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.dJ.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, per 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 Mackenzie Reilly. 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.J.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.J.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.