Passaic County PBA Local 197 v. Office of Passaic County Prosecutor

895 A.2d 1187, 385 N.J. Super. 11, 2006 N.J. Super. LEXIS 119
CourtNew Jersey Superior Court Appellate Division
DecidedApril 24, 2006
StatusPublished
Cited by4 cases

This text of 895 A.2d 1187 (Passaic County PBA Local 197 v. Office of Passaic County Prosecutor) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Passaic County PBA Local 197 v. Office of Passaic County Prosecutor, 895 A.2d 1187, 385 N.J. Super. 11, 2006 N.J. Super. LEXIS 119 (N.J. Ct. App. 2006).

Opinion

The opinion of the court was delivered by

WECKER, J.A.D.

Plaintiffs, three collective bargaining units representing certain law enforcement officers in Passaic County,1 brought this action [13]*13alleging that the Passaic County Prosecutor violated the Attorney General’s Law Enforcement Drug Testing Policy by ordering four county sheriffs officers and three Wayne police officers to provide urine samples for drug testing based upon reasonable suspicion of illegal drug use.* 2 The Law Division judge granted the Prosecutor’s motion for summary judgment and dismissed plaintiffs’ complaint. Plaintiffs appeal that judgment. We now affirm, although on somewhat narrower grounds.

The Law Division judge initially noted that the individual, named officers all had withdrawn from the lawsuit, and thus no factual issue was before the court respecting reasonable suspicion to order each drug test. The sole question presented, as framed by the judge and agreed to by the parties, was:

[Wlhether the County Prosecutor had the authority, absent the assent or request of the chief executive officer of the Taw enforcement agency by whom an officer within the county is employed, to order reasonable suspicion drug testing of an individual officer not employed by the prosecutor’s office?
[Emphasis added.]

The judge answered that question in the affirmative and placed the reasons for his decision on the record following oral argument on January 11,2005:

It is apparent to this Court at least that a county prosecutor has the authority, absent the approval of the chief executive officer of the employing law enforcement agency, to order law enforcement officers, employed by a law enforcement agency within the county, to provide urine specimens for drug testing if there’s reasonable suspicion of drug use pursuant to the Attorney General’s Policy.

The judge concluded that the Prosecutor possessed such authority under the statute delegating to each county prosecutor the [14]*14Attorney General’s authority, citing N.J.S.A. 2A:158-5.3 The final order incorporated those reasons. We affirm the order granting summary judgment and dismissing plaintiffs’ complaint. We do so, however, based on the actual consent of the chief executive officers involved here.

The Attorney General’s Law Enforcement Drug Testing Policy 4 provides, at Paragraph III. C.:

1. Each municipal law enforcement agency shall include in its rules and regulations as defined in N.J.S.A. 40A14-118,[5] and every county and state law enforcement agency shall include in appropriate standard operating procedures, a provision that individual law enforcement officers will be ordered to submit to a drug test when there is a reasonable suspicion to believe that the officer is illegally using drugs.
2. Before an officer may be ordered to submit to a drug test based on reasonable suspicion, the agency shall prepare a written report which documents the basis for the reasonable suspicion. The report shall be reviewed by the county prosecutor or the chief executive officer of the law enforcement agency before a reasonable suspicion test may be ordered. Under emergent circumstances, approval may be given for a reasonable suspicion test on the basis of a verbal report.
3. The agency’s rules and regulations or appropriate standard operating procedures shall also provide that a negative result is a condition of employment as a sworn officer and that a positive result will result in: a) the officer’s termination from employment; b) inclusion of the officer’s name in the central drug registry [15]*15maintained by the Division of Stale Police; and c) the officer being permanently barred from future law enforcement employment in New Jersey.
4. The agency’s rules and regulations or appropriate standard operating procedures shall further provide that officers who refuse to submit to a drug test based on reasonable suspicion after being lawfully ordered to do so are subject to the same penalties as those officers who test positive for the illegal use of drugs. [Emphasis added.]

The operative provisions of Paragraph III. C. 1. are that reasonable suspicion that any law enforcement officer is using drugs illegally triggers the officer’s obligation to submit to a drug test, and that every law enforcement agency — municipal, county, and state — will enact rules and regulations so providing. Those provisions are not in dispute. The issue presented by this appeal arises from the second above-quoted paragraph of the Policy, Paragraph III. C. 2.

Plaintiffs contend that only an officer’s employing agency is empowered to “prepare a written report which documents the basis for the reasonable suspicion”; such a report must be prepared “[b]efore an officer may be ordered to submit to a drug test based on reasonable suspicion”; and therefore the County Prosecutor cannot initiate the order for reasonable suspicion drug testing.

In this case, no written report of reasonable suspicion was prepared by any law enforcement agency, other than the Prosecutor’s Office itself, before the Prosecutor’s drug testing orders were issued to the individual officers involved in this case. The record includes, however, the Affidavit of James F. Avigliano, Passaic County Prosecutor, submitted in support of the Prosecutor’s summary judgment motion. That affidavit referred to and attached an internal document dated August 19, 2004, entitled “Narcotics Task Force Investigation.” The report described the circumstances of a Task Force Investigation focusing on a specific gym, located in Wayne, to establish “reasonable suspicion” justifying the August 19 drug testing orders that prompted this lawsuit. Although the affidavit stated that orders for “the drug tests in question” were consented to by the County Sheriff and by the [16]*16Wayne Police Chief, the judge declined to rule on the basis of such consent, but instead addressed the Prosecutor’s power in the absence of consent.

The Prosecutor contends that the office’s broad powers and responsibilities over law enforcement in the county, pursuant to N.J.S.A. 2A:158-4 and -5,6 supersede the administrative provisions of the drug testing policy. The Prosecutor relies upon State v. Winne, 12 N.J. 152, 167-69, 96 A.2d 63 (1953), and Gerofsky v. Passaic County SPCA, 376 N.J.Super. 405, 416-17, 870 A.2d 704 (App.Div.2005), to support the claimed authority of the office. In State v. Winne, the Court reinstated an indictment charging the Bergen County Prosecutor himself with criminal nonfeasance in office for failing to “detect, arrest, indict and convict” allegedly known gambling operators as well as allegedly corrupt officials known to be involved in gambling operations. The indictment had been dismissed as insufficient because there was no allegation of corruption against the Prosecutor. 12 N.J. at 162, 96 A.2d 63 and passim.

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Bluebook (online)
895 A.2d 1187, 385 N.J. Super. 11, 2006 N.J. Super. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passaic-county-pba-local-197-v-office-of-passaic-county-prosecutor-njsuperctappdiv-2006.