Opinion
DOCKET NO. A-5747-10T2
02-27-2013
IN THE MATTER OF REGAN LORE, SOUTH WOODS STATE PRISON, DEPARTMENT OF CORRECTIONS.
Deana L. Walsh argued the cause for appellant Regan Lore (Chance & McCann, L.L.C., attorneys; Ms. Walsh, on the briefs). Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent South Woods State Prison, Department of Corrections (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from the Civil Service Commission, Docket No. 2011-2886.
Deana L. Walsh argued the cause for appellant Regan Lore (Chance & McCann, L.L.C., attorneys; Ms. Walsh, on the briefs).
Peter H. Jenkins, Deputy Attorney General, argued the cause for respondent South Woods State Prison, Department of Corrections (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Jenkins, on the brief). PER CURIAM
Regan Lore appeals from the June 15, 2011 final decision of the Civil Service Commission (Commission) terminating him from his position as a Correction Sergeant at the South Woods State Prison (SWSP) because he tested positive for the presence of marijuana after a random drug test. He was charged with conduct unbecoming an employee by the possession or use of a controlled dangerous substance and a violation of department rules and regulations. Defendant argues that the chain of custody of the specimen was so defective as to render this decision arbitrary and capricious. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Final Notice of Disciplinary Action delineates the sustained charges as, "N.J.A.C. 4A:2-2.3(a)6. Conduct unbecoming an employee; N.J.A.C. 4A:2-2.3(a)11. Other sufficient cause; HRB 84-17 as amended, C-11 Conduct unbecoming an employee, C-30 Use, possession, or sale of any controlled dangerous substance (custody), E-1 Violation of a rule, regulation, policy, procedure, order, or administrative decision."
SWSP Senior Investigator for the Special Investigations Division James Naughton testified before the Administrative Law Judge (ALJ) that Lore was asked to submit two urine specimens on September 29, 2010. Naughton supervised as Lore put both specimens in the freezer. Naughton then secured the freezer. Seven other investigators had access to the freezer, which was used only for urine specimens. The specimens were frozen rather than refrigerated due to the anticipated delay in testing. One of the two specimens was picked up by a State courier on October 13, 2010 and delivered to the State Laboratory. Although testing was completed on October 14, 2010, SWSP was not notified of the results until December 17, 2010. On that date, Lore was interviewed and wrote a statement indicating that he had been exposed to it at public activities. Lore was terminated as of January 6, 2011.
The other frozen specimen was later turned over to a laboratory selected by Lore for analysis. The result of that analysis was not introduced into evidence.
Chemist William A. Dunn, the Deputy Director of laboratories at the New Jersey State Toxicology Laboratory (STL), testified as an expert in drug testing. He indicated that within a reasonable degree of scientific certainty Lore's specimen tested positive for 11 carboxy THC, the marijuana metabolite, at a level of 53.2 nanograms per milliliter (ng/ml). The Department of Corrections' (DOC) THC concentration cutoff for its employees is 15 ng/ml. Dunn testified that the highest tested level in the literature for passive inhalation is 12 ng/ml. Lore did not testify. He argued that the DOC had not demonstrated a proper chain of custody.
THC is tetrahydrocannabinol.
Lore does not contest the Attorney General's Law Enforcement Drug Testing Policy (Monitoring Instructions) requiring termination if a sworn law enforcement officer tests positive for illegal drug use. Rather, he contests the strength of the proofs relating to the chain of custody.
Pursuant to N.J.S.A. 52:17B-4(d), the Attorney General has established statewide drug testing policy guidelines. The Monitoring Instructions, as amended in May 2012 can be found at http://www.state.nj.us/lps/dcj/agguide/drugtest2012.pdf.
"An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function[.]" Id. at 28. These are:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."When an agency's decision meets th[e]se criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid. (citations omitted).
[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
With regard to the chain of custody, in the context of a criminal case where a liberty interest is at stake, we have indicated that "[w]hether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.) (citations omitted), certif. denied, 51 N.J. 468 (1968). In Brown, we determined that a chain of custody is sufficient if there is a "reasonable probability that the evidence has not been changed in important respects, or is in substantially the same condition as when the crime was committed." Id. at 28 (citations omitted). We explained that reasonable probability does not require the State to "negate every possibility of substitution or change in condition between the event and the time of trial[.]" Id. at 27; see also In re Lalama, 343 N.J. Super. 560, 567 (App. Div. 2001) (holding that the mode of transportation and the integrity of the urine sample were demonstrated despite the courier failing to complete the transmittal forms).
Section V.B. of the Monitoring Instructions indicate that
[u]rine specimens should be submitted to the [STL] as soon as possible after their collection. In the event a specimen cannot be submitted to the laboratory within oneSection IV.B.6.a. of the Monitoring Instructions provides that if a second specimen is taken, as occurred here, the second specimen would be "secured [in a] refrigerated storage area." Here, both specimens were frozen to preserve their integrity.
working day of its collection, the law enforcement agency shall store the specimen in a controlled access refrigerated storage area until submission to the [STL].
[(Emphasis added).]
Lore presents no argument that the delay in submitting the specimen to the STL interfered with the integrity of the specimen. Rather, he argues that the delay of two weeks was contrary to the Monitoring Instructions. He also notes that according to Section VII.A. of the Monitoring Instructions,
The [STL] shall notify the submitting law enforcement agency of test results from the specimens submitted for analysis. All reports shall be in writing and sent to the agency within 15 working days of the submission.
The result of Lore's testing was sent to the agency over two months after the analysis. Although neither the ALJ nor the Commission specifically addressed the issue of these unfortunate delays, the ALJ's decision thoroughly and fully addressed the proofs submitted and the Commission adopted the ALJ's findings of fact and conclusions of law. These findings are clearly supported by the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION