Opinion
DOCKET NO. A-0748-14T2
12-09-2016
IN THE MATTER OF DEAN SCHWANER, DEPARTMENT OF CORRECTIONS.
Kevin G. Roe argued the cause for appellant Dean Schwaner (Law Offices of Kevin G. Roe, attorneys; Mr. Roe, on the brief). Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent Mountainview Youth Correctional Facility, Department of Corrections (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Christopher S. Porrino, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Vernoia. On appeal from the Civil Service Commission, Docket No. 2014-2120. Kevin G. Roe argued the cause for appellant Dean Schwaner (Law Offices of Kevin G. Roe, attorneys; Mr. Roe, on the brief). Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent Mountainview Youth Correctional Facility, Department of Corrections (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher M. Kurek, Deputy Attorney General, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Petitioner Dean Schwaner appeals the Civil Service Commission's (Commission) final agency decision finding the New Jersey Department of Corrections (DOC) properly removed Schwaner from his position as a Correction Officer Recruit because he tested positive for cocaine during a random drug test. We reject Schwaner's claim his due process rights were violated during the drug testing process, and affirm the Commission's decision.
I.
Schwaner commenced his employment with the DOC in March 2013, and on November 26, 2013, was directed to submit to a random drug test. DOC senior investigator Salahuddin Rabb, who was tasked with collecting a urine sample for the test, obtained a single sample from Schwaner, secured the sample, and subsequently delivered it to the New Jersey State Toxicology Laboratory. The laboratory's tests revealed the presence of benzoylecgonine, a metabolite of cocaine.
Based on the test results, Schwaner was served with a preliminary notice of disciplinary action removing him from his position and charging him with conduct unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause for removal, N.J.A.C. 4A:2-2.3(a)(12). Schwaner submitted a written statement denying any prior use of cocaine and claiming the results "must be a mistake." Following a proceeding before a DOC hearing officer, the DOC issued a final notice of disciplinary action removing Schwaner from his position. Schwaner appealed to the Commission.
A trial was held before an administrative law judge. The evidence showed that at the time Rabb collected Schwaner's urine sample, Rabb was required to advise Schwaner that he had the option of providing a second urine sample, which would be frozen and made available for testing in the event the first sample tested positive for the presence of drugs. The evidence also showed it was Rabb's usual practice to advise DOC employees of the option to provide a second urine sample, but Rabb had no independent recollection of advising Schwaner of the option. The DOC presented evidence that during Schwaner's training he was drug tested and provided with a written DOC drug testing policy advising that all personnel who underwent drug testing "have the option to submit a second sample."
The evidence also showed that two small specimens from Schwaner's urine sample were separately tested at the laboratory and each revealed the presence of benzoylecgonine. The second of the tests showed a level of benzoylecgonine that was more than double the allowable level of the metabolite under the DOC's standards. Following the performance of the tests, the remaining portion of Schwaner's urine sample was preserved by the laboratory and remained available for further testing.
The administrative law judge issued a decision rejecting Schwaner's claim that the testing process was fatally flawed because he was not advised of the option to submit a second urine sample for subsequent independent testing. Although the judge determined Rabb did not advise Schwaner he had the option to provide a second sample, she also found there was no evidence the laboratory failed to properly perform its tests, no challenge to the chain of custody of Schwaner's sample, and no showing there was a medical reason for the presence of the cocaine metabolite in Schwaner's urine.
The judge determined Schwaner's original sample remained available for independent testing and there were sufficient quality controls in the laboratory's testing process to ensure the integrity of the results. The judge concluded that any failure to advise Schwaner he could provide a second sample "at most deprived him of potentially exculpatory evidence, not actual exculpatory evidence" and the DOC sustained its burden for removal. Schwaner filed exceptions to the judge's decision and the DOC filed cross-exceptions.
The Commission considered the record, issued its final agency decision, and adopted the administrative law judge's recommendation affirming Schwaner's removal. The Commission, however, found that Schwaner had been advised of the option to provide a second urine sample based on Rabb's testimony he routinely provided such notice, Rabb's completion of the summary sheet indicating Schwaner did not provide a second sample, and Schwaner's receipt of the DOC drug testing policy during his training. The Commission also determined that even if Schwaner was not advised of his option to provide a second sample, such failure did not require a reversal of his removal because there was no evidence of any irregularity in the testing process or of a break in the chain of custody of Schwaner's sample during the collection and testing process. The Commission concluded that Schwaner's positive drug test reflected egregious conduct justifying his removal. This appeal followed.
II.
Our role in reviewing the Commission's decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "[A] 'strong presumption of reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). We "may not substitute [our] own judgment for the agency's, even though [we] might have reached a different result." Stallworth, supra, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
"In order to reverse an agency's judgment, [we] must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Id. at 194 (second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). To determine whether an agency action is arbitrary, capricious, or unreasonable, we must examine
(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.The findings of fact made by an administrative agency are binding on appeal if they are supported by "sufficient credible evidence." In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We are not however bound by the agency's legal conclusions, which we review de novo. A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App. Div.), certif. denied, 200 N.J. 210 (2009).
[Ibid. (quoting Carter, supra, 191 N.J. at 482).]
Schwaner first claims that Rabb's purported failure to advise him of the option of providing a second urine sample for subsequent testing denied him of his constitutional right to due process. He asserts that Rabb's failure deprived him of any meaningful way to challenge the validity of the laboratory's test results. We disagree.
Schwaner's argument is based upon the contention that he lacked notice he could provide a second sample. The Commission disagreed and accepted the DOC's "valid argument" there was sufficient credible evidence establishing Schwaner was aware of his option to provide a second sample. The evidence showed that during Schwaner's training he was provided with the DOC drug testing policy, stating that any employee providing a urine sample during a drug test had the option to provide a second sample. This evidence was unrefuted and we are satisfied it supports the Commission's finding Schwaner knew he could provide a second urine sample prior to submitting his sample to Rabb. There is no evidence in the record to the contrary.
The Commission also found Rabb advised Schwaner of his option to provide a second sample. This finding is based on sufficient credible evidence in the record, including Rabb's testimony he collected over 2500 urine samples for drug testing during his tenure as a senior investigator and it was his practice to advise DOC employees of their right to provide a second sample. In addition, Rabb noted in the paperwork he completed at the time he obtained Schwaner's urine sample that Schwaner "did not provide[] a [second] sample to be frozen" and testified he made the notation so "there would be no misunderstandings."
The Commission's finding that Schwaner had been advised of his option to provide a second sample prior to Rabb's request is supported by substantial credible evidence in the record. That finding undermines Schwaner's contention, which is unsupported by any evidence, that he was unaware he could provide a second sample when Rabb collected his urine sample. We are therefore satisfied the Commission did not act arbitrarily, capriciously, or unreasonably in rejecting Schwaner's claim he was denied due process. For that reason alone, we affirm the Commission's decision.
We also are satisfied, however, that even if Schwaner was not informed of his right to provide a second urine sample, his due process rights were not violated. Schwaner had protected property and liberty interests in his continued employment with the DOC, which required that the DOC "proceed with due process before terminating [his] employment." In re Carberry, 114 N.J. 574, 583-84 (1989); George v. City of Newark, 384 N.J. Super. 232, 238 (App. Div. 2006). The "minimum procedural requirements [of due process]" are "notice plus an opportunity to be heard and participate in the litigation." Simmermon v. Dryvit Sys., Inc., 196 N.J. 316, 330 (2008). However, "due process is flexible and calls for such procedural protections as the particular situation demands." N. J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 119 (2011) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)).
We reject Schwaner's contention that a failure to advise him of his opportunity to provide a second urine sample deprived him of his due process rights. Due process "connotes fundamental fairness. Due process is an element which, when missing, produces the reaction accorded to that which is 'shocking to the universal sense of justice.'" State v. Mercer, 211 N.J. Super. 388, 393 (App. Div. 1986) (quoting State v. Lagenella, 144 N.J. Super. 268, 284 (App. Div. 1976)). Any alleged failure to inform Schwaner of the opportunity to provide a second sample did not result in any fundamental unfairness because Schwaner was not deprived of his ability to challenge the drug test results or of an opportunity to conduct an independent test of the sample he provided to the laboratory.
Although Schwaner portrays his due process argument in terms of the purported failure to advise him of his opportunity to provide a second urine sample, his substantive claim is that he was wrongfully deprived of the opportunity to perform an independent test of his urine. In his brief, he claims he "has been deprived of any meaningful way to challenge the validity of the drug test." The record does not support his contention.
As correctly noted by the Commission, the laboratory used only a portion of Schwaner's urine sample during testing. The laboratory preserved the unused portion of Schwaner's urine sample for possible retesting, but Schwaner undertook no effort to test the remaining portion of the sample. We are satisfied there is no basis for Schwaner's contention the purported failure to advise him of his opportunity to provide a second sample deprived him of the opportunity to challenge the drug test results. Cf. Banks v. Fed. Aviation Admin., 687 F.2d 92, 96 (5th Cir. 1982) (finding due process rights of federal civil service employees required an opportunity to conduct a "test on their own behalf" of their urine samples which had tested positive for cocaine usage). The uncontradicted evidence demonstrates that Schwaner had the opportunity to perform a retest on his urine sample but failed to do so. We therefore find no due process violation.
Schwaner's counsel asserted at oral argument that Schwaner first learned of the existence and availability of his urine sample for retesting during the July 16, 2014 trial before the administrative law judge. The record, however, does not reflect that following the disclosure there were any requests to perform retesting of the Schwaner's urine sample, for an adjournment to permit retesting, or to reopen the record to permit retesting.
Schwaner also argues, for the first time on appeal, that the drug test results should have been suppressed because the test was conducted in a manner inconsistent with the DOC's internal management procedures and the Attorney General Guidelines. We decline to consider the argument because Schwaner did not move for suppression of the results before the administrative law judge, did not object to their admission into evidence, and his argument does not involve jurisdictional or public interest concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Schwaner's sole objection to the admission of the drug test result was based on the argument that admission of the records violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The objection was overruled by the administrative law judge, was not renewed before the Civil Service Commission, and is not challenged here. --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION