Opinion
DOCKET NO. A-3863-13T2
04-27-2016
BRENT STAIGER, Plaintiff-Appellant, v. WATERFORD TOWNSHIP, Defendant-Respondent.
Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the brief). Timothy J. Higgins argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4069-13. Louis M. Barbone argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Barbone, on the brief). Timothy J. Higgins argued the cause for respondent. PER CURIAM
Plaintiff Brent Staiger, a former Waterford Township (Waterford) police officer, appeals from a May 5, 2014 order, which dismissed his complaint seeking de novo review of a disciplinary action by defendant, the Waterford Township Police Department (WTPD). N.J.S.A. 40A:14-147. Plaintiff was declared unfit for duty and ultimately dismissed when a random urine-based drug screen disclosed his testosterone levels exceeded an accepted ratio, which was indicative of steroid use.
On appeal, plaintiff contends reversal is warranted because the Law Division failed to weigh procedural violations in the testing and reporting process, in contravention to the Attorney General Guidelines on Random Drug Testing. Moreover, he argues the evidence shows the "positive" nature of his test result was not based on an established scientific standard, understanding testosterone naturally occurs in the body, and the Law Division did not independently evaluate the evidence de novo. We conclude these arguments are unavailing and affirm.
The facts surrounding plaintiff's testing and suspension are not disputed. The hearing officer conducting the disciplinary review hearing considered evidence presented by the parties. Defendant presented testimony from WTPD Detective Leonard Thackston and Lieutenant Daniel Cormaney, as well as expert testimony from Gregg Pearson, D.O., a board-certified family physician. Plaintiff presented expert testimony from his treating physician, Anthony M. Jennings, M.D., a board-certified endocrinologist, and testified on his own behalf.
On November 27, 2012, pursuant to established and publicized standard procedures, designated as WTPD "SOP #18 Drug Testing Policy" (SOP #18), plaintiff and three fellow officers were randomly selected and ordered to submit a urine sample for testing. SOP #18 is identical to the Attorney General Guidelines on the subject. N.J.S.A. 40A:14-181 "'requires [e]very law enforcement' agency in this State to 'adopt and implement guidelines' that are 'consistent with the guidelines' that have been promulgated by the Attorney General . . . ." O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 19 (App. Div. 2008) (alteration in original) (quoting N.J.S.A. 40A:14-181), certif. denied, 198 N.J. 311 (2009). SOP #18 was amended on July 19, 2012, to require testing for steroid use. The collected random urine samples were requested to be tested for steroids.
Detective Thackston served as plaintiff's monitor and plaintiff submitted two samples. Detective Thackston explained plaintiff "exhibited an odd behavior which [he had] never had happen before during the random drug testing." Detective Thackston stated plaintiff seemed extremely nervous and kind of agitated; further, "[a]t the time [he] took the sample" plaintiff specifically asked why "he wasn't given a heads up" and also stated he did not have to go to the bathroom. Approximately one hour later, plaintiff remitted his sample. Plaintiff also sought permission to return with the list of medications he was taking because he could not recall the names of the more than twenty over-the-counter vitamins and supplements he took daily.
Detective Thackston described the chain of custody, as he delivered one of the two urine samples submitted by each of the four officers to the State Toxicology Laboratory in Newark (STL). Documents show the STL transmitted the sample to Aegis Crimes, a laboratory in Tennessee, which performed testing for drug and steroid use. Aegis Crimes returned a "Certificate of Analysis" denoting plaintiff's sample tested positive for testosterone and registered a ratio of 23.7:1 of testosterone/epitestosterone.
The Aegis report was admitted into evidence without the need for further testimony by agreement of the parties.
Upon receipt of the report, Lieutenant Cormaney contacted Dr. Robert Havier of the STL, who confirmed the 23.7:1 ratio was significantly higher than the generally accepted level of testosterone, which he verified was approximately 6:1. As required by SOP #18, plaintiff was immediately suspended with intent to dismiss based on the high testosterone finding of the Aegis testing.
Dr. Pearson presented expert testimony on behalf of defendant. He stated endocrinology is studied and is "part of family medicine." In his career, he had treated approximately thirty to forty males who had high testosterone levels.
Dr. Pearson was not board-certified in endocrinology or metabolism. --------
In his view, urine tests were more accurate than blood tests when checking testosterone levels because the concentration in urine has a longer half-life compared to the half-life for testosterone found in blood, which he advised was only one hour. Noting the natural ratio of testosterone and epitestosterone is typically one to one and perhaps ranges as high as 5.7 to one, he believed the Aegis urine test showed "what could be considered to be an excessively high value" and "quite [an] elevated ratio, suggest[ing] there was something else that was going on." In Dr. Pearson's opinion, "the fact that it was 23.7 to one is indicative of exogenous use of steroids as well." Dr. Pearson insisted, "with absolute medical certainty," a 23.7 to one ratio does not occur genetically or naturally. Such an elevated ratio reflects "the patient was using some sort of exogenous steroid or testosterone" because "it is impossible for the human body to produce that much testosterone without additionally producing epitestosterone."
Plaintiff's expert Dr. Jennings began treating plaintiff on October 10, 2012, when he sought treatment, complaining of "fatigue, lack of his usual strength and stamina, some difficulties with sleeping . . . [and] intermittent changes in his memory after he had a car accident[,]" three years earlier. Blood tests were performed by Quest Diagnostics (LabCorp) at that visit and two days later, using two different testing methods. Dr. Jennings acknowledged plaintiff's respective testosterone levels of 666 and 591 nanograms per deciliter, although within a "normal range," were "somewhat higher than one would normally see in the average male where you typically see levels of three hundred to four hundred." Also, plaintiff's sex hormone-binding globulin, at 43.7 nanomoles per liter, was also "a little bit higher than one normally sees."
Dr. Jennings opined plaintiff "has a genetic predisposition to have higher binding proteins and a higher serum testosterone level," making the reported level "normal" for him as verified by the overall interpretation of the blood test results, including plaintiff's recorded pituitary Luteinizing hormone. Dr. Jennings further described the testosterone scale underpinning the blood test he ordered, noting 95% of the male population fell between 348 and 1197, so plaintiff's score of 666 was "mid to mid upper" in the range.
Dr. Jennings also stated he was positive the higher testosterone level was not exogenous, but physiologically produced, a conclusion he reached within a reasonable degree of medical certainty. Several months later, plaintiff again saw Dr. Jennings, who asked whether plaintiff was taking testosterone; plaintiff stated he was not. The doctor opined, "[s]o in looking at his values, I mean it was pretty clear at the previous visit that he had taken nothing."
Regarding the Aegis testing report, Dr. Jennings stated the information was inconclusive. He explained "the testosterone epitestosterone ratio is an analysis of urine[,] which is used to look for administration of testosterone that does not naturally occur in the body." Because the urine test is a screening tool, he concluded additional more sophisticated testing, such as carbon analysis, was necessary to confirm the results and discern whether plaintiff's testosterone level was the result of exogenous use or naturally produced. At the very least, Dr. Jennings insisted three or four tests should have been administered.
Dr. Jennings also explained it was difficult to compare the blood test results with the urine screening report because the testing captured different information. However, he admitted the Aegis results did not "comport with" and were not "consistent with" the conclusion he drew following review of plaintiff's blood test, which was plaintiff's testosterone level was simply at the high end of normal given his physiology. On cross-examination he agreed the Aegis report "suggest[ed]" exogenous testosterone use, but "doesn't prove it." In his view, one urine test was not conclusive; it merely identified the need for additional testing. Finally, Dr. Jennings acknowledged plaintiff did not request additional testing following notice of the Aegis results, even though a second urine sample had been simultaneously collected and was available for that purpose.
Plaintiff testified. He described himself as maintaining a rigorous workout and physical fitness regime. He denied ever taking any form of testosterone, although he admitted he took over-the-counter supplements. Plaintiff suggested he did not know he had the ability to obtain his own testing of the alternative urine sample and had not considered that possibility.
The hearing officer issued written findings of fact and recommendations. After considering Dr. Jennings' testimony, the hearing officer noted Dr. Jennings' testing was completed before defendant tested plaintiff. As a result, Dr. Jennings "could not say whether there was any exogenous use of steroids as of November 28, 2012" and noted the doctor's acknowledgement plaintiff's testosterone/epitestosterone ratio of 23.7:1 "suggests a possibility of exogenous steroid use." Therefore, his results would not preclude plaintiff's exogenous steroid use when tested by defendant. The hearing officer also cited Dr. Pearson's testimony stating a urine test was a more accurate measure of exogenous substances than a blood test and credited his assessment "there was no way for someone to have a 23.7:1 ratio naturally."
The hearing officer concluded the level of testosterone in plaintiff's body, when randomly tested, violated SOP #18, which was based the Attorney General guidelines. He considered and rejected, as minor, plaintiff's procedural challenges to the testing procedure and concluded there was no prohibition on the STL's use of Aegis to test the specimen. The hearing officer concluded all procedural deviations identified by plaintiff did not alter the testing process or affect its results.
Accordingly, the hearing officer determined plaintiff violated SOP #18 and recommended plaintiff be dismissed. Defendant's Director of Public Safety adopted the findings and conclusion. Plaintiff was dismissed on September 28, 2013. He filed his complaint in lieu of prerogative writs seeking de novo review, reversal of the guilt determinations and reinstatement to his position.
Plaintiff argued there was no specified standard governing an unacceptable testosterone/epitestosterone ratio and nothing to determine the Aegis results were from outside illegal testosterone when in fact plaintiff's expert confirmed he naturally produces a higher level of testosterone than the average man his age. In light of the medical reason for the higher levels, plaintiff sought to reject the hearing officer's conclusions. He also asserted defendant did not comply with the required review of plaintiff's medication list to determine whether a false positive test result would occur. Further, he identified several procedural violations with the established policy requiring the results be set aside.
The Law Division judge rejected plaintiff's arguments. Focusing on the listed procedural violations, he concluded no prejudice occurred as these issues did not taint the integrity of the random selection or testing of the collected samples. The judge concluded: "The procedural and substantive deviation from the guidelines are not significant — so significant as to render the process fundamentally unfair, nor did deviations cause the plaintiff to be prejudiced in the disciplinary process." The judge stated, "frankly there's no evidence in the record to support . . . a finding that the defendant's procedural deviations undermine the fairness of the process warranting a reversal of the disciplinary action taken against the plaintiff" and there is no evidence the Aegis "analysis was either incorrect, inaccurate, unreliable . . . or in any way prejudices the defendant."
Moreover, the judge reviewed the testimonial evidence directed to the Aegis results and found defendant met its burden of proof. Importantly, Dr. Jennings could not rule out the possibility of exogenous testosterone use. Dr. Pearson's opinion was the Aegis reported ratio "absolutely is evidence of exogenous testosterone."
On appeal, plaintiff renews his arguments. He maintains the SOP #18 did not specify standards to determine guilt; no evidence of exogenous steroid use was presented; and the Law Division review failed to fully consider all evidence in the record.
The review of a disciplinary convictions in non-civil service municipalities is governed by N.J.S.A. 40A:14-150, which provides: "[a]ny member or officer of a police department . . . who has been . . . convicted upon any charge . . . may obtain a review . . . by the Superior Court[,]" which considers the matter de novo on the record below, and may reverse, affirm or modify any such conviction. The Law Division must "give due deference to the conclusions drawn by the original tribunal regarding credibility, [whose] initial findings are not controlling." In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990).
An appellate court plays a limited role in reviewing the de novo proceeding. In State v. Johnson, 42 N.J. 146 (1964), we explained that the court's "function on appeal is not to make new factual findings but simply to decide whether there was adequate evidence before the [] [c]ourt to justify its finding of guilt." Id. at 161 (quoting State v. Dantonio, 18 N.J. 570, 575 (1955)). Thus, unless the appellate tribunal finds that the decision below was "arbitrary, capricious or unreasonable" or "[un]supported by substantial credible evidence in the record as a whole," the de novo findings should not be disturbed.See also Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 356-57 (2013) (restating the appellate review standard set forth in Phillips, supra, 117 N.J. at 577-80).
[Id. at 579 (first and third alteration in original).]
Plaintiff's first argument focuses on the Attorney General guidelines as adopted in SOP #18. The "Guidelines expressly govern Internal Affairs investigations with local law enforcement agencies. The purpose of the AG Guidelines is to establish procedures for investigating employee misconduct and for determining whether criminal or disciplinary action is required." In re Carroll, 339 N.J. Super. 429, 443 (App. Div.), certif. denied, 170 N.J. 85 (2001).
Plaintiff's claims can be summarized as follows:
(1) Lieutenant Cormaney should have signed the selection report in addition to Detective Thackston, as he was present at the time of the drawing. See Guideline 18:3.4(b)(4).
(2) A member of the collective bargaining unit, in addition to Detective Thackston who was serving as a "monitor," must have been present. See Guideline 18:3.4(b)(5).
(3) A delay occurred when delivering the urine specimens to the State Toxicology Lab. See Guideline 18:5.2.
(4) The State Toxicology Lab was required to conduct testing and was not authorized to engage Aegis Crimes. See Guideline 18:5.1.
(5) The list of supplements provided by plaintiff should have been reviewed by a medical officer to consider possible interactions explaining the results. See Guideline 18:7.2
We have considered each of these claims in light of plaintiff's argument that lapses in compliance with SOP #18 have so tainted the disciplinary process that the determination must be set aside and he be reinstated. See O'Rourke, supra, 405 N.J. Super. at 22-23. We reject these arguments, concluding O'Rourke is factually distinguishable. We affirm substantially for the reasons stated by the Law Division judge in his oral opinion. R. 2:11-3(e)(1)(A).
In a related argument, plaintiff argues SOP #18 fails to include a standard defining what positive testosterone finding warrants dismissal. Further, because testosterone is naturally occurring in the body, unlike the illegal substances otherwise tested for during this process, he argues the policy does not include a scientifically proven standard to prove the tested testosterone level resulted from ingested illicit testosterone. We conclude this argument is unavailing.
The Attorney General Guidelines, as amended on July 18, 2012, and incorporated into SOP #18, clearly state a positive test for steroids will result in dismissal. Responding to complaints of police misconduct, "[t]he ultimate goal of the policy is to improve the delivery of police services to the citizens of New Jersey." Aristizibal v. City of Atl. City, 380 N.J. Super. 405, 427 (Law Div. 2005).
Both plaintiff's and defendant's expert agreed there are accepted levels of testosterone and the Aegis results significantly exceeded the accepted levels. Dr. Jennings discussed his earlier testing as showing plaintiff normally produced testosterone recorded on the higher end of normal. Although Dr. Jennings equivocated somewhat, he did not state the urine test showed a testosterone level that was naturally produced and acknowledged the extremely high level as identified in the Aegis report could result from exogenous steroid use. Further, he admitted his blood tests, conducted one month before the random urine sample was collected, did not preclude later steroid use. Dr. Jennings did not refute Dr. Pearson's detailed opinion, stating (1) a urine test was more accurate than a blood test; (2) it was impossible for a human to naturally produce testosterone at a level of 23.7 to one because natural production would also include corresponding production of epitestosterone; and (3) a Journal of the American Medical Association article discussed available additional testing was not necessary when a testosterone/epitestosterone ratio exceeded 6:1.
Finally, we reject as unfounded plaintiff's suggestion the Law Division judge "abdicated" his function by failing to make independent findings of fact following his assessment of the evidence of record. We do not agree with plaintiff's suggestion. Plaintiff was provided with the opportunity to challenge defendant's evidence and present his own evidence. The hearing was conducted promptly and nothing reflects plaintiff was denied a fair and meaningful review as contemplated by N.J.S.A. 40A:14-150. Ruroede, supra, 214 N.J. at 355-56. We conclude the judge properly performed his role in considering the evidence, giving appropriate deference to the hearing officer's findings where appropriate. See Phillips, supra, 117 N.J. at 579 ("Although a court conducting a de novo review must give due deference to the conclusions drawn by the original tribunal regarding credibility, those initial findings are not controlling."). The judge "review[ed] the quality and quantity of the evidence presented" and found "sufficient competent evidence supported the charges against the plaintiff." The judge further found in light of plaintiff's violation of the drug policy, the resultant dismissal was not a shockingly unfair result. We discern no basis to interfere with this conclusion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION