NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2844-21
IN THE MATTER OF S.D., TOWNSHIP OF FREEHOLD POLICE DEPARTMENT. _________________________
Argued January 30, 2024 – Decided February 22, 2024
Before Judges Mayer, Enright and Paganelli.
On appeal from the New Jersey Civil Service Commission, Docket No. 2021-1768.
Christopher A. Gray argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Christopher A. Gray and Deborah Masker Edwards, of counsel and on the briefs).
Brian J. Chabarek argued the cause for respondent Township of Freehold Police Department (Davison Eastman Mu noz ֮ Paone, PA, attorneys; Brian J. Chabarek, of counsel and on the brief; Timothy C. Moriarty, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Civil Service Commission (Brian D. Ragunan, Deputy Attorney General, on the statement in lieu of brief).
PER CURIAM Appellant S.D. appeals from a March 7, 2022 final agency decision by
respondent New Jersey Civil Service Commission (Commission), adopting a
January 21, 2022 initial decision by an administrative law judge (ALJ),
upholding S.D.'s termination as a police officer with respondent Township of
Freehold Police Department (Department). We affirm.
We recite the facts from the hearings conducted by the ALJ judge. S.D.
is married and has three children. S.D.'s wife was enrolled in New Jersey's
Medicinal Marijuana Program to treat various medical conditions. On
November 30, 2020, S.D.'s wife filled a prescription for cannabis in a smokable
form.
On December 15, 2020, S.D.'s wife informed S.D. she did not want to
smoke prescribed cannabis alone. S.D. agreed to remain with his wife while she
smoked. Because the couple had three young children, S.D. and his wife sat in
their car so the children would not see their mother smoking.
The couple sat inside their car for thirty to forty minutes while S.D.'s wife
smoked. Given the cold weather, they initially sat inside the car with the
windows closed and the heater running. When the car began to fill with smoke,
they "cracked [the] window[s] a little bit[,] just to get the air flow [] moving."
A-2884-21 2 The next evening, December 16, S.D. again sat inside the car with his wife so
she could smoke prescribed cannabis.
On December 17, 2020, the Department selected S.D. for a random drug
test. S.D. signed the required forms for the drug test and provided a urine
sample. The Department sent the sample to the New Jersey State Toxicology
Lab (NJSTL) for testing and retained a second "split" sample.
About a month later, the NJSTL reported S.D.'s sample contained
cannabis metabolites in a concentration of 16.3 ng/ml, exceeding the 15 ng/ml
threshold and yielding a positive result. Because the NJSTL testing indicated a
positive result, S.D. sent the split sample to a different laboratory, NMS Labs,
for independent testing. The results of the split sample revealed cannabis
metabolites in a concentration of 14.68 ng/ml.
Based on the NJSTL positive drug test, on February 17, 2021, the
Department issued a Preliminary Notice of Disciplinary Action (PNDA),
suspending S.D. without pay. The charges against S.D. in the PNDA included
the following: insubordination; inability to perform duties; conduct unbecoming
a public employee; neglect of duty; and other sufficient cause, including
violations of rules contained in the Department's Manual.
A-2884-21 3 On May 12, 2021, the Department issued a Final Notice of Disciplinary
Action, terminating S.D.'s employment as of February 17, 2021. S.D. waived
his right to a departmental hearing on the charges and appealed his termination
directly to the Office of Administrative Law (OAL). As part of the OAL
proceedings, the parties stipulated to the validity of the process by which S.D.'s
sample was selected, acquired, transported, retained, and tested.
The ALJ held hearings on three dates in September 2021. Dr. George
Jackson, executive director of laboratories for the Office of the Chief State
Medical Examiner, testified as a forensic toxicology expert on behalf of the
Department. Dr. Daniel Isenschmid, a forensic toxicology expert with NMS
Labs, testified on S.D.'s behalf. The ALJ also heard testimony from Detective
Lieutenant Scott Hall with the Department's Internal Affairs Unit, the
Department's Chief of Police, S.D., S.D.'s wife, and S.D.'s character witnesses.
Dr. Jackson testified S.D.'s first sample underwent initial screening at
NJSTL. The initial screening test identified the presence of cannabinoids at 53.2
ng/ml which was above the 20 ng/ml threshold for a presumptive positive result.
This presumptive positive test necessitated a follow up gas
chromatography/mass spectrometry (GC/MS) test. The GC/MS test is a
qualitative and quantitative analysis for the presence of 11-Carboxy-THC (THC)
A-2884-21 4 and measures for THC concentrations above the 15 ng/ml threshold to report a
positive result. The 15 ng/ml level is an industry standard used by the State of
New Jersey and designated to include a testing subject's accidental exposure to
THC. According to the GC/MS test performed by the NJSTL, S.D.'s sample
contained cannabis metabolites in a concentration of 16.3284 ng/ml. While Dr.
Jackson testified a positive finding may be attributable to a medication listed on
a subject's medication information sheet, he stated S.D. reported no medications.
The ALJ also considered Dr. Isenschmid's testimony. The doctor
explained NMS Labs conducted a liquid chromatography tandem mass
spectrometry (LCMS) test on S.D.'s split sample. According to Dr. Isenschmid,
the LCMS test of S.D.'s split sample contained cannabis metabolites in a
concentration of 14.68 ng/ml, which was below the threshold for a positive
result.
However, Dr. Isenschmid further testified the result obtained by NMS
Labs fell within the margin of error of the first sample's test and "confirmed the
results of the first test" by the NJSTL. Thus, Dr. Isenschmid testified both
results were "considered analytically the same." Despite the difference in the
concentration of cannabis found by each laboratory, the doctor testified the
results from the NJSTL were valid and S.D.'s sample above 15 ng/ml constituted
A-2884-21 5 a positive result. S.D. never challenged the accuracy of the Department's
sampling methods or procedures or the NJSTL's test results.
Dr. Isenschmid also testified regarding a 2015 study on passive inhalation
exposure to cannabis and resulting positive drug screens. Dr. Isenschmid
conceded the 2015 study was performed under "extreme conditions" and he
"d[id]n't pretend to know what conditions . . . were present at the time of . . .
[S.D.'s] smoke exposure."
Dr. Isenschmid explained he was unable to opine on S.D.'s passive
inhalation of cannabis smoke leading to a positive test result without additional
information. The doctor testified he required critical information, such as the
duration between exposure to the marijuana and the timing of S.D.'s test sample,
the environment where the marijuana was smoked, the ventilation in the area the
marijuana was smoked, the amount of marijuana smoked, and the potency of the
marijuana smoked to offer an opinion on passive inhalation by S.D. and his
positive test result.
Detective Lieutenant Hall, who was in charge of the Department's random
drug testing policy and familiar with the Attorney General's directives regarding
random drug testing from 2018 to the present, also testified. Hall testified the
Attorney General's drug testing policy in effect when S.D. submitted a urine
A-2884-21 6 sample required termination for any officer receiving a positive test result. Hall
explained officers are required to sign an acknowledgement regarding the
consequences flowing from a positive test result and S.D. did so on December
17, 2020. Additionally, Hall stated the Department had a policy requiring
random drug screening for officers and S.D. signed the policy. Hall further
testified the Department required officers to list medications taken fourteen days
prior to a random drug screen on a medication information sheet.
Upon receipt of S.D.'s positive test result, Hall notified the Department's
Chief of Police and the Monmouth County Prosecutor's Office. S.D. also
received notice of the result. Hall testified S.D. offered no explanation for the
positive test at that time.
The ALJ also heard live testimony from several character witnesses on
S.D.'s behalf. Further, the ALJ accepted and considered written character
witness statements. The character witnesses described S.D. as a respected
member of the Department with no prior disciplinary history.
S.D. also testified. S.D. explained he signed the Department's drug testing
policies, acknowledging termination as a police officer if he tested positive for
marijuana. S.D. also described the many treatments, medications, and therapies
A-2884-21 7 prescribed to address his wife's medical issues, including Lyme disease,
rheumatoid arthritis, fibromyalgia, and gastrointestinal issues.
S.D. further testified he was present when his wife smoked medicinal
cannabis on December 15 and 16, 2020 and felt no effects from the smoke on
either night.
S.D. then explained he was selected for a random drug test upon reporting
to work on December 17, 2020. Prior to providing a urine sample, S.D. signed
the required consent forms. Under the Department's policy, S.D. was required
to complete a "Drug Testing Medication Information" form prior to providing a
urine sample. The Department's policy required S.D. to "identif[y] medications
(prescription and non-prescription [i.e. over-the-counter]) . . . ingested in the
past fourteen days . . . ." S.D. listed no medications on his form.
On February 16, 2021, Hall informed S.D. of the positive drug test result.
Hall gave S.D. an opportunity to provide an explanation for the positive test.
S.D. explained he was "blown away" by the positive result because he did not
use marijuana. The Department suspended S.D. and advised there would be an
Internal Affairs investigation.
S.D. then met with a representative from the Police Benevolent
Association (PBA). The PBA representative told S.D. to get a lawyer because
A-2884-21 8 S.D. did not appear to grasp the impact of the positive test result. About a half
hour into this meeting, S.D. told the PBA representative the positive drug test
may have been the result of sitting in the car with his wife while she smoked
medically prescribed cannabis on December 15 and 16, 2020.
During cross-examination, S.D. confirmed he was aware of the drug
testing policies promulgated by the Department and the Attorney General. He
further acknowledged he knew these drug testing policies required termination
from the police force upon a positive test result.
On cross-examination, S.D. also explained he did not list any medications
on the medication information sheet because he had not taken any medications.
S.D. testified he did not indicate his wife was enrolled in the medicinal cannabis
program because that information was not requested on the form.
After completing the testimony, the parties stipulated to the following
facts: S.D. was not challenging the random drug testing process or acquisition
of the samples; S.D. was not challenging the chain of custody of the samples;
S.D. waived his right to a departmental hearing; and S.D.'s suspension
commenced February 17, 2021.
On January 21, 2022, the ALJ issued a detailed written decision denying
S.D.'s appeal and upholding his termination. The ALJ found all witnesses to be
A-2884-21 9 credible. However, the ALJ explained "this [was] not a situation where
credibility [was] a factor, but a situation where the test results, not challenged
by either party, must govern." The ALJ rendered the following factual findings:
[O]n December 15, 2020, and December 16, 2020, [S.D.] accompanied his wife in a closed vehicle for approximately thirty to forty minutes on each occasion while [she] smoked marijuana medically prescribed for her. On December 17, 2020, [S.D.] reported for work and was directed to submit a urine sample for random drug testing. As part of that process, he did not report any drug or other substance use on the prescribed document[,] which is a part of the random drug- screening process. He submitted a sample, which was divided into two parts. On February 16, 2021, [S.D.] was notified that testing of the urine sample . . . revealed that his urine was positive for cannabinoids (THC) in excess of the [fifteen] ng/m[l] cutoff under the [Office of Attorney General] and [Department] policies.
Additionally, the ALJ noted S.D. sent his split sample for testing at an
independent laboratory and that laboratory concluded S.D.'s sample tested
positive for cannabinoids in a concentration of 14.680 ng/ml. Regarding the
split sample, the ALJ stated:
[t]he positive-level threshold cutoff concentrations are expressly to be excluded from consideration by the lab because the purpose of the split-specimen test is merely to confirm the presence of the drug metabolite in the specimen. That is, a split specimen shall be reported as a "positive result" when the laboratory result confirms
A-2884-21 10 the presence of the metabolite in the split specimen without regard to the threshold level.
Relying on prior decisions issued by the Commission, the ALJ explained "in the
absence of any evidence, or even a suggestion, that the initial test produced an
inaccurate result, the value of the split sample is significantly decreased."
The ALJ further determined:
While [S.D.]'s motive in supporting his wife [was] admirable, as a police officer he showed a lack of perspicacity in dealing with the situation. As a law- enforcement officer, he knew (or should have known) that being subject to marijuana smoke (whether directly or indirectly inhaled) in a closed, confined space two times in two days for periods of thirty to forty minutes each may have resulted in adverse results in his system, fitness for duty, and ability to react in a work or emergency situation—whether or not he felt any effects from the exposure.
Legality of marijuana does not necessarily demand a corresponding adjustment to the strict, zero-tolerance standards to which law-enforcement personnel are held.
The ALJ also found S.D.'s signing of the consent and acknowledgment
forms put S.D. on notice that a positive drug test result would lead to termination
as a law enforcement officer. The ALJ noted the testing policies adopted by the
Department and the Attorney General "require[ed] random drug testing with a
zero-tolerance-for drug-use," and "S.D. was aware of and knew the requirements
A-2884-21 11 of the [Department] and the [Attorney General's] Guidelines regarding illegal
drug use."
The ALJ also rejected S.D.'s argument he was not required to list his wife's
medicinal cannabis use on his medication information sheet prior to the random
drug test. S.D. claimed he did not need to list cannabis because it was not his
medication. The ALJ found "common sense regarding the circumstances should
have led [S.D.] to note his exposure to his wife's medicinal marijuana on the
disclosure form."
Further, the ALJ rejected S.D.'s request for assessment of progressive
discipline. The ALJ determined:
there [was] no dispute that, intentionally or inadvertently, [S.D.] was subject to marijuana smoke. He knew it was illegal, knew the policies and procedures of the Department, and knew he was held to a higher standard as a law enforcement officer. Further, while testimony reflects that [S.D.] ha[d] no disciplinary record, test results documenting illegal drugs in the system of someone in a safety-sensitive position is a serious offense, and the penalty should reflect the same.
Based on S.D.'s status as a police officer, the ALJ concluded S.D. was
held to a higher standard of conduct than ordinary public employees. Given
S.D.'s sample tested above the 15 ng/ml threshold limit, as conceded by S.D.'s
own toxicology expert, the ALJ sustained the Department's charges against S.D.
A-2884-21 12 The judge explained whether S.D. exposed himself to cannabis "intentionally or
inadvertently, he did not comply with the policy." Accordingly, the ALJ
concluded the sustained charges "[we]re sufficiently egregious to warrant
termination of [S.D.] from his position as a police officer." The ALJ expressly
concluded the positive test result mandated S.D.'s termination from the
Department.1
In his written decision, the ALJ stated: "If the . . . Commission does not
adopt, modify or reject this decision within forty-five days and unless such time
limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 40A:14-204."
On March 2, 2022, the Commission considered S.D.'s motion to modify
the penalty imposed by the ALJ to a six-month suspension rather than
termination. At that time, only four persons constituted membership of the
Commission. Two members voted for and two members voted against the
1 When he issued his written decision, the ALJ noted "the regulations for sale and distribution of marijuana to the public [had] not been perfected, nor [had] any changes been made to the [Attorney General's] policies regarding [the] usage of marijuana by law-enforcement officers." Not until about a month after the ALJ's decision did the Legislature legalize the recreational use of marijuana. See N.J.S.A. 24:6I-31 to -56. Not until almost four months after the ALJ's decision did the Attorney General issue a memorandum related to the legalization of marijuana.
A-2884-21 13 motion. As a result of the Commission's tie vote, S.D.'s motion failed and the
Commission did not render a decision. Thus, under N.J.S.A. 52:14B-10(c), the
ALJ's decision became final on March 7, 2022.
On May 17, 2022, the Commission denied S.D.'s request for
reconsideration. The Commission declined to address the motion "since the
Commission did not render a decision and could not have made 'a clear material
error.'"
On appeal, S.D. argues the ALJ's decision was arbitrary, capricious, and
unreasonable and unsupported by credible evidence in the record. S.D. also
challenges the imposed sanction of termination rather than progressive
discipline. S.D. further contends the Commission erred in denying his request
for reconsideration. We reject these arguments.
We accord deference to agency decisions even in circumstances where, as
in this case, the ALJ's decision was "deemed adopted" by the Commission as a
final decision due to an insufficient number of Commission members to review
the decision. In re Hendrickson, 235 N.J. 145, 157 (2018). "An agency's
determination on the merits '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.'" Saccaone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369,
A-2884-21 14 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J.
14, 27 (2011)).
When reviewing an agency decision, we consider: (1) whether the agency
action violated "express or implied legislative policies"; (2) whether there was
substantial evidence in the record to support the agency's decision; and (3)
whether in applying the law to the facts, the agency reached a conclusion "that
could not reasonably have been made on a showing of the relevant factors."
Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018)
(quoting In re Stallworth, 208 N.J. 182, 194 (2011)).
We apply a deferential standard to the review of disciplinary sanctions.
In re Herrmann, 192 N.J. 19, 28 (2007). An agency's sanction will be reversed
only if the "punishment is so disproportionate to the offense, in light of all the
circumstances, as to be shocking to one's sense of fairness." Id. at 28-29
(quoting In re Polk, 90 N.J. 550, 578 (1982)). "The threshold of 'shocking' the
court's sense of fairness is a difficult one, not met whenever the court would
have reached a different result." Id. at 29. We may not substitute our own view
whether a particular penalty is warranted. In re Carter, 191 N.J. 474, 486 (2007).
However, we are not "bound by [an] agency's interpretation of a statute or its
determination of a strictly legal issue." Allstars, 234 N.J. at 158 (alteration in
A-2884-21 15 original) (quoting Dep't of Children & Fams., Div. of Youth & Fam. Servs. v.
T.B., 207 N.J. 294, 302 (2011)).
We first address S.D.'s argument that the Commission's decision
subjecting him to termination was arbitrary, capricious, and unreasonable. S.D.
argues the Department failed to present evidence supporting, let alone proving,
any of the levied charges. We disagree.
The charges issued by the Department against S.D. included conduct
unbecoming a police officer and other good and sufficient cause based on S.D.'s
positive drug test.
Police officers commit conduct unbecoming when their conduct "has a
tendency to destroy public respect for municipal employees and confidence in
the operation of municipal services." Karins v. City of Atlantic City, 152 N.J.
532, 554 (1998) (quoting In re Appeal of Emmons, 63 N.J. Super. 136, 140 (App.
Div. 1960)). Additionally a finding of conduct unbecoming may be determined
where the conduct "offends accepted standards of decency." Id. at 557. Such
conduct "need not 'be predicated upon the violation of any particular rule or
regulation. . . .'" Id. at 555 (quoting Hartmann v. Police Dep't of Ridgewood,
258 N.J. Super. 32, 40 (App. Div. 1992)).
A-2884-21 16 Here, the ALJ found S.D. was a police officer and his testing positive for
marijuana tended to destroy the public's trust regarding law enforcement officers
who took an oath to uphold the law. The ALJ properly concluded termination
for conduct unbecoming a police officer was necessary to uphold the public's
respect for, and confidence in, its police officers. A "violation of the implicit
standard of good behavior which devolves [around] one who stands in the public
eye as an upholder of that which is morally and legally correct" is sufficient to
discipline a police officer for conduct unbecoming. See Emmons, 63 N.J. Super.
at 140. We discern no error in the ALJ's decision to terminate S.D. for conduct
unbecoming S.D based on his positive drug test.
The Department also charged S.D. with conduct constituting other good
and sufficient cause for imposing discipline. This charge was premised on S.D.'s
testing positive for drugs contrary to the Attorney General's and the
Department's zero-tolerance drug testing policy and in violation of provisions in
the Department's Manual. Under the policies and Department's Manual, there
was sufficient credible evidence in the record in support of other good and
sufficient cause to impose discipline against S.D.
We also reject S.D.'s passive inhalation argument to explain the presence
of cannabis metabolites in his system. Whether S.D. intentionally or
A-2884-21 17 unintentionally had cannabis in his system above the threshold level was
irrelevant under the drug testing policies in effect in 2020. Under the policies,
a positive drug test result required termination of a law enforcement officer.
This is particularly true where, as here, S.D. submitted no evidence challenging
the reliability or validity of the NJSTL's results. Indeed, S.D.'s own expert
testified the NJSTL's positive test result for S.D. was valid.
Based on the undisputed record, S.D. knew the policies related to
controlled dangerous substances, including cannabis. He also knew a positive
drug test would result in his termination. Further, there was no expert testimony
to support S.D.'s claim that his positive drug test result was attributable to
passive inhalation. The ALJ thoroughly explained his reasons for rejecting Dr.
Isenschmid's citation to a single study related to passive inhalation of marijuana
under extreme circumstances. The ALJ also highlighted Dr. Isenschmid's own
testimony stating the lack of critical information precluded the doctor's ability
to opine S.D.'s positive test was attributable to passive inhalation.
We also reject S.D.'s argument that termination was too severe a sanction
and progressive discipline should have been imposed. In support of his
argument for progressive discipline rather than termination, S.D. relies on
several unpublished cases. Rule 1:36-3 provides no unpublished decisions
A-2884-21 18 "shall constitute precedent or be binding upon any court." Even if we were
permitted to consider the unpublished cases cited by S.D., we are satisfied the
cases are distinguishable as they involved charges unrelated to positive drug
tests or positive drug tests for public employees who were not required to carry
a firearm as part of their job duties.
Regardless of S.D.'s unblemished record, lack of any prior disciplinary
history, and strong support of his fellow police officers and other character
witnesses, the policies promulgated by the Department and the Attorney General
unequivocally mandated termination of employment for law enforcement
officers testing positive for drugs. S.D. never denied his awareness of the
policies mandating termination as a law enforcement officer after a positive test
Additionally, the public's trust warranted S.D.'s termination as a law
enforcement officer. Adherence to a high standard of conduct is an obligation
that a law enforcement officer voluntarily assumes when entering public service.
See Emmons, 63 N.J. Super. at 141-42. As we explained in Moorestown v.
Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965):
[A] police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and
A-2884-21 19 good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public.
Conduct unbecoming or other good and sufficient cause, two of the
charges against S.D. sustained by the ALJ, need not be limited to an officer's
violation of a policy, rule, or regulation, "but may be based merely upon the
violation of the implicit standard of good behavior which devolves upon one
who stands in the public eye as an upholder of that which is morally and legally
correct." Emmons, 63 N.J. Super. at 140.
Further, our review is limited to whether the termination decision was
"shocking" to our sense of fairness, not whether we would have reached the
same decision. Here, the policies issued by the Department and the Attorney
General articulated zero-tolerance for drugs. More importantly, these policies
specified that a law enforcement officer who tested positive for drugs resulted
in public loss of confidence in the police.
We are satisfied S.D. was aware that receipt of a positive drug test would
result in mandatory termination of his employment as a police officer. Nothing
in the policies issued by the Department or the Attorney General authorize
imposition of a lesser sanction than termination after a positive test result. The
A-2884-21 20 absence of any prior disciplinary history does not diminish the fact that S.D., as
a police officer, is held to a higher standard than other public employees.
We also reject S.D.'s argument that the Cannabis Regulatory Enforcement
Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-
31 to -56, legalizing the recreational use of marijuana, applied to his matter.
CREAMMA, effective February 22, 2021, applied prospectively per the express
language of the statute. S.D. tested positive on December 17, 2020 , and was
terminated by the Department on February 17, 2021, prior to CREAMMA's
effective date.
Nor does the Attorney General's revised Law Enforcement Drug Testing
Policy apply to S.D.'s matter. The revised policy became effective in February
2023, and the conduct leading to S.D.'s termination occurred two years before
the Attorney General's revised drug testing policy.
We also reject S.D.'s argument the ALJ's decision should not have become
final based on the two-two vote before the Commission. The traditional standard
of deference applies to an ALJ's decision timely "deemed adopted" as a final
agency decision. See Hendrickson, 235 N.J. at 149. We will affirm an ALJ's
decision "deemed adopted" as a final agency decision if the ALJ's decision,
particularly in the context of imposing appropriate disciplinary sanctions, is
A-2884-21 21 supported by sufficient credible evidence even if we might have reached a
different decision. Id. at 150.
Where the Commission is unable to render a final decision due to the lack
of a quorum or, as in this case, there is a split vote of the Commission's
membership, the ALJ's decision is "deemed adopted" as the agency's final
decision. N.J.S.A. 52:14B-10(c). Under the circumstances here, we are satisfied
the Commission's adoption of the ALJ's January 21, 2022 decision as a final
agency decision was not arbitrary, capricious, or unreasonable.
We also reject S.D.'s argument that the Commission erred in denying
reconsideration of his appeal. Because the ALJ's decision was "deemed
adopted" by the Commission as its final agency decision, the Commission could
not have made "a clear material error," warranting reconsideration under
N.J.A.C. 4A:2-1.6(b)(2). There was nothing for the Commission to
"reconsider."
Having reviewed the record, we are satisfied there is no basis to disturb
the ALJ's determination based on the substantial credible evidence in the record.
S.D. tested positive for cannabis during the Department's random drug test.
S.D.'s toxicology expert failed to rebut the validity of the Department's random
drug testing process or the NJSTL's positive test result. S.D. presented no
A-2884-21 22 evidence that the positive test result yielded by the NJSTL was inaccurate or
flawed.
Affirmed.
A-2884-21 23