Opinion
DOCKET NO. A-5616-09T3
10-18-2011
IN THE MATTER OF JOSE MARTINEZ, FIRE FIGHTER (M2286E), JERSEY CITY.
Eric Wagman, Assistant Corporation Counsel, argued the cause for respondent City of Jersey City (William Matsikoudis, Corporation Counsel, attorney; Vincent Signorile, Assistant Corporation Counsel, of counsel; Mr. Wagman, on the brief). Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and J. N. Harris.
On appeal from the Civil Service Commission, CSC Docket No. 2008-1393.
Eduardo R. Cruz-Lopez argued the cause for appellant Jose Martinez.
Eric Wagman, Assistant Corporation Counsel, argued the cause for respondent City of Jersey City (William Matsikoudis, Corporation Counsel, attorney; Vincent Signorile, Assistant Corporation Counsel, of counsel; Mr. Wagman, on the brief).
Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General on the statement in lieu of brief). PER CURIAM
Appellant Jose Martinez appeals from the final administrative decision of the Civil Service Commission (Commission) upholding his removal from the list of eligible candidates for the position of firefighter in the Jersey City Department of Fire and Emergency Services. We affirm.
The facts are not in material dispute. On August 23, 2006, Martinez provided hair and urine samples for a required drug screening as part of the application process to become a Jersey City firefighter. The hair and urine samples were collected by Dynamic Testing Services, Inc., in Toms River, and two days later, they were received by Medtox Scientific, Inc. (Medtox), a laboratory in St. Paul, Minnesota, for testing. There is no direct, tangible evidence that the samples received in Minnesota were those collected in New Jersey, because no one from Medtox signed a form acknowledging acceptance of the samples.
The next day, the hair and urine samples were tested for the presence of amphetamines, marijuana, opiates, cocaine, and phencyclidine (PCP). The urine sample came back positive for cocaine only. To verify these results, the laboratory conducted a confirmatory test using the gas chromatography/mass spectrometry method. The threshold for the GC/MS test was set at 150 ng/ml (nanograms per milliliter). The urine sample tested positive for cocaine, registering 216 ng/ml. The hair sample, however, tested negative for all drugs.
A nanogram is one-billionth of a gram. In re Gen. Disciplinary Hearing of Carberry, 114 N.J. 574, 580 (1989).
Martinez's name was removed from the list of eligible firefighter candidates because of the positive results from the urine sample. Martinez appealed the decision to remove his name from the list to the Commission.
On appeal to the Commission, Martinez reiterated his position that he had not ingested any controlled dangerous substances. He also argued that in urine testing, the presence of a drug or drugs does not provide information as to whether an individual is actually under the influence at any particular time. Lastly, Martinez asserted that hair drug testing by comparison to urine drug testing is far more effective because it provides a much longer duration for analysis.
The Commission rejected Martinez's arguments. In its final determination, the Commission noted:
[W]hile appellant is correct that hair drug testing detects drug use for a longer period of time, up to [ninety] days prior to testing, the drugs cannot be detected until approximately [seven] to [ten] days from the time of drug use. This is the time in which the affected hair grows from the follicle to emerge above the scalp.The Commission used this information to explain the discrepancy between the urine sample testing positive for cocaine, while the
[(Footnotes omitted).]
hair sample tested negative for all illicit drugs. The Commission also noted that Martinez "provide[d] no medical documentation to refute the positive urine drug test or any reasonable explanation for the positive test results."
The Commission found that the "appointing authority ha[d] met its burden of proving that [Martinez] had a positive drug screen and that such matter would prevent him from effectively performing the duties of the position at issue. [Martinez], therefore, does not meet the required physical qualification for the position of Fire Fighter." Accordingly, the Commission affirmed the removal of Martinez's name from the list of eligible candidates. This appeal followed.
Martinez's brief contains only a single point heading, but he makes three distinct arguments: (1) the Commission's decision was arbitrary, capricious, and unreasonable because it chose to "suppress and/or ignore" the results of the hair sample analysis; (2) the chain of custody for both the urine and hair samples was compromised; and (3) the heightened standard of clear and convincing evidence should have been applied by the Commission, and there was "insufficient clear and convincing evidence" supporting the Commission's decision "that a due process violation had not occurred and that the entire testing process was not fundamentally flawed."
We elect to overlook this violation of Rule 2:6-2(a)(5) and will reach the merits of each of Martinez's arguments. See VW Credit, Inc. v. Coast Auto. Grp., Ltd., 346 N.J. Super. 326, 335 (App. Div.), certif. denied, 172 N.J. 178 (2002) (considering an appellant's contention even though it was not set forth in a separate point heading as required by Rule 2:6-2(a)(5)); cf. Mid-Atl. Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div.) (declining to consider an argument raised for the first time in a two-sentence paragraph at the end of appellant's brief without a separate point heading in violation of Rule 2:6-2(a)(5)), certif. denied, 207 N.J. 190 (2011).
Firmly established doctrine governs our task on appeal. Appellate review of an administrative agency decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007); see also In re Carter, 191 N.J. 474, 482 (2007). A strong presumption of reasonableness attaches to a decision of the Civil Service Commission. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). The burden is on appellant to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Bowden v. Bayside State Prison, 2 68 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries: (l) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Anthony Stallworth, _ N.J. _, _(2011) (slip. op. at 14); Carter, supra, 191 N.J. at 482-83. When an agency decision meets the above criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, while acknowledging the agency's "expertise and superior knowledge of a particular field." Circus Liquors, Inc., v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (l992)); Herrmann, supra, 192 N.J. at 28. We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. Stallworth, supra, slip op. at 14-15; Herrmann, supra, 192 N.J. at 27-28.
The Commission fully explained the basis of its decision, recognizing the existence of the disparate tests. It carefully explained the significance of the differences, relying upon the urine test with its near-term significance — notwithstanding the longer-term import of the hair test — as an appropriate barometer of Martinez's lack of physical qualification for the position of firefighter. The Commission's cogent analysis, firmly grounded in logic and the particular facts and circumstances of the case, is the hallmark of reason, lack of arbitrariness, and the absence of caprice.
Martinez next contends that the drug test was unreliable because of putative gaps in the chain of custody of the samples. The legal standard for proving chain of custody is a reasonable probability that no tampering has occurred. State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968). Generally, this threshold is met if the trier of fact finds by a reasonable probability that evidence has not changed in any significant manner. Ibid. Reasonable probability does not require proof of an uninterrupted chain of possession or "negat[ing] every possibility of substitution or change in condition." Id. at 27.
The Commission's decision does not comment upon the chain of custody issue because, as far as the record suggests, Martinez did not raise it at that time. If that were true, then we would be justified in not addressing the issue on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Neider v. Royal Indem. Ins. Co. , 62 N.J. 229, 234 (1973). However, because the prior history of the matter is ambiguous, we elect to engage in an analysis of the issue.
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We have emphasized that chain of custody evidence should be admitted and considered reliable if it demonstrates a reasonable probability that the sample has not been altered in any important respect. In re Lalama, 343 N.J. Super. 560, 567 (App. Div. 2001). A corollary to this rule is that one or two departures from stated policy do not require rejection of the chain of custody evidence, if the cited departures do not suggest a real prospect for substitution. Martinez does not make any specific allegations or present any evidence showing defects in the chain of custody, aside from an omitted signature on a form. This is insufficient to engender concerns for the integrity of the samples, the reliability of the test results, or the decisional accuracy and fairness of the Commission's final administrative action.
Lastly, Martinez contends that the removal of his name from the candidate's list of persons eligible to be a firefighter was not supported by clear and convincing evidence. We reject this argument as wholly without merit. R. 2:11-3(e)(1)(D); (E). The correct standard of proof in this case is the preponderance of the evidence standard. As has been observed by the New Jersey Supreme Court, "[t]his jurisdiction has long recognized that the usual burden of proof for establishing claims before state agencies in contested administrative adjudications is a fair preponderance of the evidence." In re Polk, 90 N.J. 550, 560 (1982) (citing Atkinson v. Parsekian, 37 N.J. 143, 149 (1962). The Court has stated:
From a constitutional standpoint, the clear and convincing standard has been found to be required as a matter of due process when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding in the sense that it takes away liberty or permanently deprives individuals of interests that are clearly fundamental or significant to personal welfare.Martinez's removal from the candidates list is not comparable to a liberty interest or other fundamental right. In hearings before an administrative agency involving a profession or occupation, courts regularly apply the preponderance of the evidence standard. Id. at 560 (citing In re Kerlin, 151 N.J. Super. 179, 184 (1977)). In the instant case, that standard was plainly met.
[Id. at 563.]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION