The opinion
NOT FOR PUBLICATION WITHOUT THE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-0566-22
IN THE MATTER OF
P.O. STEPHEN MCGEE,
NEW JERSEY TRANSIT POLICE
DEPARTMENT.
_______________________________
Argued September 11, 2024 – Decided October 4, 2024
Before Judges Currier and Marczyk.
On appeal from the New Jersey Transit Police
Department, Docket No. 2019-007.
Stuart J. Alterman argued the cause for appellant
Stephen McGee (Alterman & Associates, LLC,
attorneys; Stuart J. Alterman, on the briefs).
David M. Alberts argued the cause for respondent New
Jersey Transit Police Department (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; John J. Peirano
and David M. Alberts, of counsel and on the brief).
PER CURIAM
Appellant Stephen McGee. appeals from the September 6, 2022 final
agency decision (FAD) of respondent New Jersey Transit Corporation (NJT),
which terminated his employment for testing positive for a prohibited substance
under NJT's drug and alcohol policy following a random drug test. Based on
our review of the record and the applicable legal principles, we affirm .
I.
McGee was a policer officer employed by the New Jersey Transit Police
Department (NJTPD). He applied for the NJTPD in 2005 and attended the police
academy. During his time with the NJTPD, he received commendations and
awards for his service.
NJT is a public transportation agency. N.J.S.A. 27:25-2. In establishing
NJT, the Legislature created a police department, NJTPD, for the purpose of
providing "police and security responsibilities over all locations and services
owned, operated, or managed by [NJT] and its subsidiaries." N.J.S.A. 27:25-
15.1(a). NJT is subject to the rules and regulations of the Department of
Transportation (DOT), the Federal Transit Administration (FTA), NJT Policy
3.25A § I, and the New Jersey Attorney General. NJT Policy 3.25A § X(c).
On May 29, 2019, McGee was selected for a random drug test in
accordance with NJT's Policy 3.25A. Rosalind Evans-White, an NJT senior
drug and alcohol testing technician, administered the test. Evans-White
collected McGee's urine sample for testing to be completed by Quest
Diagnostics (Quest). Specifically, (1) the specimen was collected in accordance
A-0566-22
2
with DOT regulations; (2) the custody and control form was signed; (3) the
sealing labels were initialed and signed by McGee attesting to the fact that he
had no issue with the collection; and (4) the specimen was sealed in front of
McGee and placed in a sealed transport bag. Evans-White placed the specimen
in a Quest lockbox in a parking garage, where it remained for two days before
it was transported to Quest for analysis.
Quest reported McGee's urine sample contained 51 ng/ml of a marijuana
metabolite, tetrahydrocannabinol (THC), which exceeded the permitted
threshold of 15 ng/ml.1 As a result, McGee reported to a Medical Review
Officer (MRO) to review the drug test results.
Drug test results are not considered "positive" under NJT's policy "until
they are reviewed and verified by an MRO." NJT Policy 3.25A § XIII(J)(1).
The MRO's review must include (1) verifying the chain of custody, (2) verifying
the laboratory report and assessment of the test result was reasonable, (3)
examining alternate explanations for a positive, substituted, adulterated , or
1
McGee's sample was tested twice, consistent with the federal regulations and
Policy 3.25A. If the primary specimen tests over 50 ng/ml, the laboratory
utilizes gas chromatography/mass spectrometry to test the primary specimen
again at a lower threshold of 15 ng/ml to confirm the results. Here, both tests
showed a positive test result of 51 ng/ml.
A-0566-22
3
invalid result, and (4) giving the employee an opportunity to discuss the result
with the MRO prior to verifying a positive result.
During the meeting with the MRO, Dr. Gita Dalao, McGee told Dr. Dalao
that he had been using cannabidiol (CBD). Specifically, McGee advised Dr.
Dalao that he used CBD infused topical cream, CBD ingestible droplets, and a
CBD vape product. Dr. Dalao found no justification to excuse McGee's test
result and upheld the positive test result.
NJT subsequently charged McGee with (1) using marijuana in violation
of NJT Policy 3.25A; (2) using drugs in violation of NJTPD Rule 7.33; and (3)
conduct unbecoming under NJTPD Rule 7.1. On June 4, 2019, McGee was
placed on administrative suspension. On July 12, 2019, McGee entered a plea
of not guilty, and the matter was subsequently transferred to the Office of
Administrative Law (OAL) for a hearing before an Administrative Law Judge
(ALJ). McGee was indefinitely suspended without pay pending the resolution
of the matter in the OAL.
At the time of McGee's positive drug test, NJT had in place a drug and
alcohol policy under NJT Policy 3.25A. The policy was designed to "ensure
that [NJT] provides the safest possible transportation for the public and . . .
promote[s] the safety and welfare of [its] employees . . . through the requirement
A-0566-22
4
of a workplace and workforce free from the effects of prohibited drugs and
alcohol." NJT Policy 3.25A was implemented pursuant to the Drug-Free
Workplace Act of 1988, 41 U.S.C. §§ 8101-8106, and the Omnibus
Transportation Employee Testing Act of 1991, 49 U.S.C. § 5331.
NJT Policy 3.25A established the procedures for NJT's drug and alcohol-
free workplace program in accordance with the regulations and guidelines
established by the United States DOT and FTA. See NJT Policy 3.25A § I.
Specifically, this policy mandates urine drug testing, as is required by the FTA
under 49 C.F.R. § 655, for all covered employees who perform safety-sensitive
functions, as defined in 49 C.F.R. § 655.4. Ibid.
Under NJT Policy 3.25A, NJTPD police officers are considered covered
employees because they perform safety-sensitive functions and, therefore, are
prohibited under both NJT's policy and federal law from using products with a
THC concentration greater than 0.3 percent. Specifically, NJT Policy 3.25A
provides:
A. Prohibited Behavior
As a condition of employment, all [NJT] employees are
prohibited from being impaired by or under the
influence of a drug or alcohol while:
• Subject to reporting for duty or on duty
A-0566-22
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• Acting in an official capacity on behalf of
[NJT]
• Wearing a recognizable [NJT] . . . uniform
• Operating any [NJT] vehicle at any time
• Conducting business for or representing
[NJT]
1. Covered employees may not use the
following prohibited drugs, "marijuana, cocaine,
opiates, phencyclidine, amphetamines, ecstasy,
and/or any other drug for which an employer
must test under 49 C.F.R. 655.21 as may be
amended" at any time. . . . A covered employee
may be randomly tested for prohibited drug use
at any time while on duty.
Regarding the federal definition of marijuana at the time of the drug test,
21 U.S.C. § 802(16) stated:
(A) Subject to subparagraph (B), the term[] . . .
"marijuana" mean[s] all parts of the plant Cannabis
sativa L., . . . and every compound, manufacture, salt,
derivative, mixture, or preparation of such plant, its
seeds or resin.
(B) The term[] . . . "marijuana" do[es] not include—
(i) hemp, as defined in . . . [7 U.S.C. § 1639o].
Federal law, under 7 U.S.C. § 1639o(1), defines the excluded hemp as any part
of "the plant Cannabis sativa L. . . . including the seeds thereof and all
derivatives, extracts, [and] cannabinoids . . . with a delta-9 [THC] concentration
of not more than 0.3 percent on a dry weight basis."
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Under NJT's policy, police officers are subject to random drug testing.
The policy contains specific procedures for these tests and notes, "[a]ll testing
under this policy . . . will be conducted in strict accordance with the DOT
Procedures for Transportation Workplace Drug and Alcohol Testing Programs
in 49 C.F.R. Part 40."
In the case of police officers, NJT's policy provides:
[A]ny sworn law enforcement officer who produces a
verified positive test result for illegal use of drug(s) will
be dismissed from the agency and permanently barred
from future law enforcement employment in New
Jersey. Moreover, any sworn officer that tests positive
will be reported to the Central Drug Registry
maintained by the Division of State Police.
[NJT Policy 3.25A § X(C).]
Even in the absence of a positive test, the policy mandates the termination
of any law enforcement officer who uses illegal drugs:
[NJT] does not offer [v]oluntary or [m]andatory
[substance abuse assistance] to a police officer using
illegal drugs. Any sworn [NJT] law enforcement
officer who is determined to have used illegal drug(s),
through his own admission, a drug test, or otherwise,
must be dismissed.
[NJT Policy 3.25A § XII(A)(2).]
NJT policies regarding over-the-counter (OTC) medications, "recognizes
that the use of [OTC] medications may compromise an employee's ability to
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7
function properly in [their] safety-sensitive position." NJT Policy 3.25A §
VIII(D)(1). Accordingly, employees are required to "exercise caution" when
using any such OTC medication. Ibid. NJT Policy 3.25A § VIII(D)(1) requires
the employee to:
[c]omply with and obey any restrictions printed on the
OTC medication[;] [u]se the medication according to
the recommended dose[;] [c]onsult a physician or a
pharmacist for possible interactions of the OTC
medication with other medication being consumed[;
and] [o]btain clearance for use of the OTC medication
while performing safety-sensitive functions from the
physician, pharmacist or Medical Services.
The hearing before the ALJ took place on several days between January
2020 and April 2020. NJT presented Laura Wooding, NJT's Director of Medical
Services and the Drug and Alcohol Program.2 McGee testified on his own behalf
and also called Dr. William Sawyer, a forensic toxicologist, as a witness.3
2
NJT also called Dr. Dalao; Evans-White; Lieutenant John Sullivan, NJTPD
internal affairs unit; Daniel Martin, Quest's lead certifying scientist; and Daniel
Rendene, a Quest lab technician.
3
McGee also called several individuals as character witnesses: NJTPD Officer
Daniel Whartenby; Atlantic County Undersheriff Richard Komar; Atlantic
County Sheriff Eric Scheffler; NJTPD Sergeant Greig Fallon; NJTPD Officer
James Ludzieski; and Atlantic City Sergeant Jose Gonzales. All of McGee's
character witnesses testified they had never seen or heard McGee talk about
using illegal drugs or marijuana and that he performed his duties in an exemplary
fashion.
A-0566-22
8
Wooding prepared two memoranda, dated April 4 and April 12, 2019,
regarding drug and alcohol testing policies with respect to marijuana. The April
4 memorandum primarily addressed medical marijuana, noting its use was not
an excusable reason to test positive for marijuana. The April 12 memorandum
reiterated marijuana was a Schedule I controlled dangerous substance.
Moreover, the April 12 memorandum, entitled "Safety Sensitive Employees and
the use of Marijuana in ANY form," stated in pertinent part:
Please note that marijuana remains a drug listed in
Schedule I of the Controlled Substances Act. It remains
unacceptable for any safety-sensitive employee subject
to drug testing under the [DOT]'s drug testing
regulations to use marijuana in ANY form (to include
CBD oil). In an effort to be very clear, [NJT's MROs]
will not verify a drug test as negative based upon
information that a physician recommended that the
employee use "medical marijuana" or CBD oils.
Wooding testified she did not forward these letters to individual
employees but sent them to all management and supervisors through a
distribution list. She was unaware of whether the people on the distribution list
disseminated the memoranda to rank and file officers. She further testified that
the memoranda were not policy but intended to clarify existing policy. She
stated she wanted to make it clear in the April memoranda that someone could
A-0566-22
9
"obtain CBD oil . . . legally, [but] if [they went] above the limit, the [MRO was]
required to report that as a positive test."
Dr. Sawyer testified on McGee's behalf and was qualified as a forensic
toxicology expert. He testified regarding the two expert reports he prepared in
connection with the underlying matter. In addition to reviewing the Quest data,
Dr. Sawyer reviewed the laboratory certificate report for the testing he ordered
of the CBD products used by McGee
Dr. Sawyer's initial report stated, "[t]here [was] no basis to discredit the
. . . Quest . . . [l]aboratory report" and that "there [was] no basis to . . . question
the accuracy of the findings submitted by Quest . . . as no discrepancies . . . were
found within the . . . laboratory data package." However, in his amended report
and testimony, he opined the testing of McGee's urine specimen was "defective"
because it was placed in a lockbox that was not temperature controlled, and
therefore, Quest's positive test for THC was flawed. However, he only testified
the high storage temperatures "could have" affected the sample. He also
acknowledged there was no scientific literature to substantiate the impact of the
collection procedure used here and the lack of refrigeration on McGee's sample.
Dr. Sawyer also testified that he had Elsohly Laboratories test the three
CBD products McGee used to determine their THC content. He testified that
A-0566-22
10
Fountain of Health CBD measured at 0.23 percent, Resonance Farm CBD
measured at 0.14 percent, and Canna Vape Oil measured at 1.1 percent, which
is three times above the federal limit. He further opined that Canna Vape Oil
was a defective product because it contained an illegal level of THC that was
not disclosed in its certificate of analysis or advertised on the product label . The
product also contained no warning that it could result in a positive test.
Regarding Quest's urinalysis, Dr. Sawyer testified that the range of error
for ng/ml in the test result would be from 47 to 55, with a concentration less
than 50 ng/ml being a negative result. As such, Dr. Sawyer opined that McGee's
initial test at 51 ng/ml did not exceed the initial cutoff value of 50 ng/ml because
of the range of error.
Dr. Sawyer acknowledged the Canna Vape Oil regularly used by McGee
contained "illegal" levels of THC. Dr. Sawyer stated, "to [a] reasonable
toxicological certainty based on the study [he reviewed, his] test data and [his]
training and experience[,] that the THC measurements in the urine of . . . McGee
arose specifically from his chronic use and accumulative use of CBD oil."
McGee testified he regularly used various forms of CBD for
inflammation, injuries, and sleep-related issues. He further testified he knew
the consumption of marijuana was prohibited as an NJTPD police officer , but
A-0566-22
11
he did not believe he was using marijuana. Regarding the April memoranda
issued by Wooding, McGee testified he had never seen them prior to his random
test. He stated the first time he saw the memos was around June 7, 2019. He
testified he would never have used CBD oil if he knew it could result in a
positive THC test.
Following the hearing, the ALJ issued an initial decision finding the
results of McGee's drug test were unreliable because NJT failed to establish by
a preponderance of credible evidence that McGee was using marijuana because,
based on Dr. Sawyer's expert opinion, McGee's THC level of 51 ng/ml was not
consistent with someone who used marijuana. Additionally, the ALJ found
McGee's positive test was attributable to his use of CBD oil products, and
Quest's analysis measuring McGee's sample at 51 ng/ml was not sufficiently
reliable, within a reasonable analytical toxicological certainty, to find the 50
ng/ml threshold was exceeded. Therefore, NJT failed to demonstrate McGee
had used marijuana in violation of its drug policies. However, the ALJ
concluded McGee did violate NJT Policy 3.25A by failing to notify the NJTPD
he was using CBD products. Therefore, the ALJ recommended a ninety-day
suspension without pay commencing in July 2019.
A-0566-22
12
The matter was returned to NJT for a final decision. On September 6,
2022, Police Chief Christopher Trucillo issued an FAD. He concluded McGee
violated NJT Policy 3.25A and NJTPD Rules 7.33 and 7.1 for using a controlled
dangerous substance. As discussed more fully below, the Police Chief
concluded that McGee admittedly used a product on a regular basis that Dr.
Sawyer conceded contained illegal levels of THC, tested positive for THC on a
drug test administered in accordance with NJT policy and federal regulations ,
and used CBD oil products without seeking advice from NJT's medical
professionals. The Police Chief further determined McGee's violation of NJT
Policy 3.25A required his termination. He subsequently denied McGee's motion
for reconsideration.
This appeal followed.
II.
McGee argues that because NJT played the role of "judge, jury, and
executioner," we must scrutinize the FAD with particularity. He further
contends NJT improperly disregarded the ALJ's findings. He next asserts that
federal policy neither required nor warranted his termination in this matter.
McGee further argues he did not receive proper notice of the directive
A-0566-22
13
prohibiting CBD oil. Lastly, he maintains the notion of progressive discipline
is not served by imposing the ultimate sanction of removal in this case.
The scope of our review in agency decisions is narrow. Appellate courts
review decisions "made by an administrative agency entrusted to apply and
enforce a statutory scheme under an enhanced deferential standard." E. Bay
Drywall, LLC v. Dep't of Lab. & Workforce Dev., 251 N.J. 477, 493 (2022)
(citing Hargrove v. Sleepy's, LLC, 220 N.J. 289, 301-02 (2015)). That enhanced
deference stems, in part, from "the executive function of administrative agencies
. . . ." Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995).
"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.'" Saccone v. Bd. of Trs., Police & Firemen's Ret.
Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011)). The reviewing court "does not substitute its
judgment of the facts for that of an administrative agency." Campbell v. N.J.
Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l, Inc.,
109 N.J. 575, 587 (1988)). Rather, the reviewing court "defer[s] to matters that
lie within the special competence" of the administrative agency. Balagun v. N.J.
Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). The party
A-0566-22
14
challenging the administrative action bears the burden of making that showing.
Lavezzi v. State, 219 N.J. 163, 171 (2014).
On appeal, the judicial role in reviewing an administrative action is
generally limited to three inquiries:
(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.
[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)).]
"When an agency's decision meets those criteria, then a court owes
substantial deference to the agency's expertise and superior knowledge of a
particular field." In re Herrmann, 192 N.J. 19, 28 (2007). Furthermore, "[w]here
there is substantial evidence in the record to support more than one regulatory
conclusion, it is the agency's choice which governs." In re Adoption of Amends.
to Ne., Upper Raritan, Sussex Cnty., 435 N.J. Super. 571, 583 (App. Div. 2014)
(quoting Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442
A-0566-22
15
(App. Div. 2001)). "If the Appellate Division is satisfied after its review that
the evidence and the inferences to be drawn therefrom support the agency head's
decision, then it must affirm even if the court feels that it would have reached a
different result itself." Id. at 584 (quoting Clowes, 109 N.J. at 588).
We review an agency's disciplinary sanction under a similar deferential
standard and only modify a sanction "when necessary to bring the agency's
action into conformity with its delegated authority." Herrmann, 192 N.J. at 28
(quoting In re Polk, 90 N.J. 550, 578 (1982)). A reviewing court "has no power
to act independently as an administrative tribunal or to substitute its judgment
for that of the agency." Ibid. (quoting Polk, 90 N.J. at 578). When reviewing
an agency's disciplinary action, we consider "whether such 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 Polk, 90 N.J. at 578).
A.
McGee argues that proceedings at the "local level" are inherently
arbitrary, and we should employ procedures similar to those used in civil service
cases or under N.J.S.A. 40A:14-150 that allow de novo arbitration through the
Public Employees Relations Commission or de novo review in the Superior
Court. He contends that the Police Chief of NJT should not oversee the charging
A-0566-22
16
process and final decision in this matter. Alternatively, he asserts we should
"scrutinize with particularity" the FAD in this matter.
We are unpersuaded by McGee's arguments. He has not provided any
controlling authority for the proposition that we should utilize a special standard
of review in the context of this matter. We previously held the "combination of
investigative and adjudicative functions does not, without more, constitute a due
process violation." Del Tufo v. J.N., 268 N.J. Super. 291, 300 (App. Div. 1993)
(quoting Withrow v. Larkin, 421 U.S. 35, 58 (1975)). Rather, a court must
determine if "special facts and circumstances [are] present in the case before it
that the risk of unfairness is intolerably high." Withrow, 421 U.S. at 58.
"[P]roof of actual bias is necessary to overturn administrative actions" when the
agency serves in both prosecutorial and adjudicatory capacities. In re Petition
for Rev. of Op. No. 583 of Advisory Comm. on Pro. Ethics, 107 N.J. 230, 236
(1987).
Pursuant to these principles, we reject the challenge, as there is no
evidence of either unfairness or actual bias to question the process.
Accordingly, we utilize the standard of review set forth above and decline
McGee's invitation to use a different standard.
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B.
McGee argues there was no adequate basis provided by the Police Chief
to modify the ALJ's factual findings and legal conclusions. More particularly,
he argues the Police Chief's FAD did not provide a reasonable basis to disregard
the ALJ's determinations regarding the evidence presented by Dr. Sawyer, the
only expert in this matter.
Pursuant to N.J.S.A. 52:14B-10(c):
In reviewing the decision of an administrative law
judge, the agency head may reject or modify findings
of fact, conclusions of law or interpretations of agency
policy in the decision, but shall state clearly the reasons
for doing so. The agency head may not reject or modify
any findings of fact as to issues of credibility of lay
witness testimony unless it is first determined from a
review of the record that the findings are arbitrary,
capricious or unreasonable or are not supported by
sufficient, competent, and credible evidence in the
record. In rejecting or modifying any findings of fact,
the agency head shall state with particularity the
reasons for rejecting the findings and shall make new
or modified findings supported by sufficient,
competent, and credible evidence in the record.
[(emphasis added).]
The Police Chief adopted the ALJ's credibility determinations but
ultimately rejected Dr. Sawyer's testimony because it was not persuasive.
Furthermore, the Police Chief rejected the ALJ's conclusions of law, finding that
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McGee's admission of using CBD oil, which contained THC above the federal
limit, was alone sufficient to warrant termination under NJT Policy 3.25A.
McGee contends that the FAD impermissibly distinguished the ALJ's
findings with respect to Dr. Sawyer's credibility and persuasiveness. The
difference between "credibility" and "persuasiveness" was recently discussed by
the United States Supreme Court in Garland v. Ming Dai, 593 U.S. 357, 371-72
(2021). The Garland Court stated:
Admittedly, credibility and persuasiveness are closely
bound concepts, sometimes treated interchangeably,
and the line between them doesn't have to be drawn the
same way in every legal context. But the distinctions
. . . aren't entirely unfamiliar either. Take an example.
Suppose a plaintiff is doing her best to recount a car
accident to prove her case for damages. She testifies
earnestly that she thought the traffic light was green
when she entered an intersection. The plaintiff says she
was then broadsided by the defendant who was
traveling on a cross street and ran a red light. Later in
the proceedings, however, the defendant presents video
footage and the testimony of other witnesses, all of
which show that it was really the plaintiff who drove
through a red light and the defendant who had the right
of way. It's easy enough to imagine that a factfinder
might not describe the plaintiff as lacking credibility—
in the sense that she was lying . . .—yet find that her
testimony on a key fact was outweighed by other
evidence and thus unpersuasive or insufficient to prove
the defendant's liability. It's not always the case that
credibility equals factual accuracy, nor does it
guarantee a legal victory.
A-0566-22
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Here, the Police Chief did not reject the ALJ's finding that Dr. Sawyer
was credible.4 Chief Trucillo adopted but modified the ALJ's factual findings.
Specifically, he accepted the ALJ's credibility determinations of all witnesses
except Dr. Sawyer's "to the extent it exceed[ed] a credibility determination . . .
and [became] a finding regarding the persuasiveness of the testimony."
Moreover, because Dr. Sawyer was an expert witness, as opposed to a lay
witness, his testimony was not "subject to the constraints of N.J.S.A. 52:14B -
10(c)." ZRB, LLC v. N.J. Dep't of Env't Prot., 403 N.J. Super. 531, 561 (App.
Div. 2008).
The Police Chief concluded that Dr. Sawyer's testimony and report were
not entitled to the weight assigned by the ALJ because the reliability of McGee's
drug test was independently bolstered by other factors, including his admitted
use of CBD oil (topically, orally, and inhaled through vape). Importantly, Dr.
Sawyer confirmed the vaping product contained THC levels more than three
times higher than permitted and, therefore, was an illegal product. The Police
Chief found McGee's use of Canna Vape Oil was an illegal controlled substance
under federal law, which was "of crucial importance" considering NJT is a
4
The Police Chief adopted the findings of the ALJ to the extent supported by
the record, given he was "in the best position to assess the live testimony and
pass on the credibility of witnesses."
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transportation agency subject to the DOT and FTA, and the drug testing
procedures set forth in 49 C.F.R. Part 40. These facts, the Police Chief noted,
were recounted in McGee and Dr. Sawyer's testimony but omitted from the
ALJ's findings of fact. We determine the Police Chief had the prerogative to
assign different weight to the evidence presented before the ALJ, as well as to
reach different legal conclusions than the ALJ.
The Police Chief found the ALJ failed to: (a) provide any analysis of the
federal regulation; (b) use the federal definition of marijuana or provide an
analysis of the same; and (c) interpret 49 C.F.R. 40.149 correctly. He noted the
ALJ incorrectly relied on the testimony of McGee's peers and friends to
conclude he did not use marijuana. Regarding 49 C.F.R. 40.149, he found the
federal regulation clearly provided that the MRO had "the sole authority to make
medical determinations leading to a verified test."
The Police Chief further noted, "[i]t is irrelevant that McGee was not
aware that the vape oil contained 1.1 percent THC and was considered an illegal
controlled substance." He noted Policy 3.25A does not require knowledge of
the violation, and McGee was required to "seek clearance when taking an [OTC]
medication." Moreover, he determined it was not relevant that McGee was
unaware of the memos issued by Wooding in April 2019 because "[a]t all
A-0566-22
21
relevant times use of CBD oil above .3 percent THC was considered an illegal
controlled substance under federal law."
Contrary to the ALJ, the Police Chief concluded McGee used an illegal
controlled substance in violation of NJT Policy 3.25A, which was supported by:
(1) McGee's testimony of using CBD oil that Dr. Sawyer found contained THC
levels above the federal limit; (2) McGee's positive drug test for THC that was
performed pursuant to federal guidelines; and (3) McGee used CBD oil products
without seeking advice from NJT's Medical Department or other medical
professional. He reiterated it was not relevant that McGee was unaware the
CBD vape oil contained impermissible levels of THC and was an illegal
controlled substance because he had an obligation to ensure he did not violate
NJT Policy 3.25A, which does not require knowledge of the violation. Likewise,
the Police Chief found McGee's lack of knowledge regarding the April 2019
memoranda irrelevant because they related to CBD products that were under the
0.3 percent federal THC limit, and CBD products above that threshold were
always considered an illegal controlled substance.
Regarding Quest's testing of McGee's sample, Chief Trucillo found the
ALJ erred in concluding that a positive THC test measured at 51 ng/ml was not
sufficiently reliable. He noted McGee's primary specimen was twice tested
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above both established thresholds under 49 C.F.R. 40.87. First, it was tested at
51 ng/ml, above the 50 ng/ml threshold, then it was tested to confirm a threshold
above 15 ng/ml. Lastly, the MRO reviewed and verified the testing process and
positive result. He noted that while the ALJ believed the positive test result was
attributable to McGee's use of CBD oil, the ALJ failed to acknowledge—
pursuant to the federal definition of marijuana—McGee used a product
containing 1.1 percent THC that was an illegal controlled substance under
federal law.
In sum, the Police Chief found McGee used an illegal controlled substance
in violation of NJT's policies, promulgated pursuant to federal law, as evidenced
by his own admission and a positive drug test. In reviewing the decision of the
ALJ, the Police Chief rejected the ALJ's conclusions of law and interpretations
of agency policy and also identified with particularity the reasons why he
disagreed with the ALJ's analysis of the evidence. Accordingly, he concluded
McGee used an illegal controlled substance in violation of NJT Policy 3.25A
and NJTPD Rules 7.33 and 7.1. Regarding the sanction, he concluded that a
positive test for using an illegal controlled substance required termination under
NJT Policy 3.25A.
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There was ample evidence in the record to support the Police Chief's FAD,
and we find no error in his evaluation of the ALJ's findings of fact or conclusions
of law. To the extent the FAD modified the ALJ's factual findings and legal
conclusions, it was supported by the record and was not arbitrary, capricious, or
unreasonable. Accordingly, we affirm the FAD's conclusion that McGee
violated NJT Policy 3.25A and NJTPD Rules 7.33 and 7.1.
C.
McGee next argues his termination was not required or warranted by
federal policy. He contends the CBD vaping product he used did not violate
NJT policy or federal law because it was legally obtained, even though it
contained an impermissible amount of THC. He asserts the use of CBD "in-
and-of-itself" is not prohibited under federal law, and he was not aware the
products he used were outside of the legal specifications for the product.
The Police Chief noted, in addressing McGee's motion for
reconsideration, the violations at issue in this matter did not "require knowledge
of a violation" or "intentional use." He further noted McGee's argument
"conflates the use of CBD oil in general with the specific use of CBD oil in this
case, where one product had a concentration of THC of 1.1 [percent], more than
the 0.3 [percent] required to fall within the federal definition of marijuana."
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Moreover, "McGee's use of CBD oils is not a legitimate medical explanation for
a laboratory-confirmed marijuana positive result [and] McGee did not seek
advice from the [NJT] Medical Department . . . ."
Given that the policies do not require knowledge or intentional use of a
product containing elevated levels of THC, we discern no error in the Police
Chief's decision. There is substantial support in the record for his decision, and
McGee has not demonstrated that it was arbitrary or capricious.
D.
McGee next argues his due process rights were violated because he did
not receive Wooding's April 2019 memoranda discussing the prohibition of
using CBD oil until after he was tested. Accordingly, he asserts he did not have
notice that the use of CBD oil was prohibited under the drug policy.
In addressing the due process issue, the Police Chief noted, "[i]t is
irrelevant that McGee was not aware that the vape oil contained 1.1 percent THC
and was considered an illegal controlled substance. As a [NJT] Police Office[r],
in a safety sensitive position, McGee has the obligation to ensure he does not
violate the drug policy." Again, as noted above, the Police Chief further stated,
Policy 3.25A does not require knowledge of the violation and required McGee
to seek clearance when taking an OTC medication. Moreover, he noted:
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it is irrelevant that McGee was not aware of the April
memos that detailed [NJT's] prohibition on use of CBD
oil. This prohibition relates to CBD oil that is within
the federal . . . limit. At all relevant times use of CBD
oil above .3 percent THC was considered an illegal
controlled substance under federal law.
In his reconsideration decision, the Police Chief further stated, "McGee is
presumed to know the law, especially as a law enforcement officer, and [NJT]
is not required to provide [him] notice of the federal marijuana laws."
We discern no error in the Police Chief's decision, and we agree it was not
germane as to whether McGee received Wooding's memoranda before he was
tested. Again, NJT Policy 3.25A clearly incorporates the federal definition of
marijuana. Additionally, as Wooding noted, the memoranda were not policy but
intended to clarify existing policy, and therefore, McGee's lack of notice
regarding the same did not amount to a violation of procedural due process.
E.
McGee points to his relative lack of disciplinary history and
commendations received while serving as an NJT police officer in arguing that
the principles of progressive discipline require reversal of the termination
penalty imposed by the FAD.
When imposing penalties, state agencies have long considered progressive
discipline principles, which are based on the notion that "past misconduct can
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be a factor in the determination of the appropriate penalty for present
misconduct." Herrmann, 192 N.J. at 29. Progressive discipline has generally
been applied in two ways: (1) to "support the imposition of a more severe
penalty for a public employee who engages in habitual misconduct," Id. at 30;
and (2) "to mitigate the penalty for a current offense." Id. at 32. Progressive
discipline, however, need not "be applied in every disciplinary setting." Id. at
33. Rather, progressive discipline may be bypassed "when the misconduct is
severe, when it is unbecoming to the employee's position or renders the
employee unsuitable for continuation in the position, or when application of the
principle would be contrary to the public interest." Ibid.
In reviewing an agency's disciplinary sanction, we use a deferential
standard. On appeal, we ask "whether [the] punishment is 'so disproportionate
to the offense, in the light of all the circumstances, as to be shocking to one's
sense of fairness.'" Polk, 90 N.J. at 578 (quoting Pell v. Bd. of Educ. of Union
Free Sch. Dist. No. 1, 34 N.Y. 2d 222 (1974)).
The Police Chief noted in its decision denying reconsideration that "Policy
3.25A states that a verified positive drug test is a dischargeable offense." In
fact, the policy mandates discharge following a positive test. Specifically, the
policy provides, "any sworn law enforcement officer who produces a verified
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positive test result for illegal use of drug(s) will be dismissed from the agency
and permanently barred from future law enforcement employment in New
Jersey."
We are mindful that "courts should take care to not substitute their own
views of whether a particular penalty is correct for those of the [entity] charged
with making that decision." In re Carter, 191 N.J. 474, 486 (2007). In view of
the policy requiring termination, we cannot say under the facts of this case that
the punishment is so disproportionate to the offense, in the light of all the
circumstances, as to be shocking to one's conscience, and we determine the
decision to terminate McGee was not arbitrary or capricious.
To the extent we have not specifically addressed any of McGee's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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