IN THE MATTER OF WILLIAM SHORTER, NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3150-18T3
IN THE MATTER OF
WILLIAM SHORTER, NEW
JERSEY DEPARTMENT OF
CORRECTIONS.
___________________________
Argued March 9, 2020 – Decided May 4, 2020
Before Judges Sabatino and Natali.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2018-1384 and 2019-0081.
Christopher J. Hamner, Deputy Attorney General,
argued the cause for appellant New Jersey Department
of Corrections (Gurbir S. Grewal, Attorney General,
attorney; Donna S. Arons, Assistant Attorney General,
of counsel; Christopher J. Hamner, on the briefs).
Michael P. DeRose argued the cause for respondent
William Shorter (Crivelli & Barbati, LLC, attorneys;
Donald C. Barbati and Michael P. DeRose, on the
brief).
Benjamin H. Zieman argued the cause for respondent
New Jersey Civil Service Commission (Ruprecht Hart
Ricciardulli & Sherman, LLP, attorneys; Benjamin H.
Zieman, on the brief).
PER CURIAM
In this civil service matter, the New Jersey Department of Corrections
(DOC) appeals from the June 22, 2018 determination of the Civil Service
Commission (CSC) that reduced the penalty imposed upon respondent William
Shorter, a Correction Sergeant at South Woods State Prison, after his random
drug screen tested positive for a metabolite of tetrahydrocannabinol (THC) 1, the
psychoactive ingredient in cannabis. After Shorter appealed, the CSC affirmed
the disciplinary findings but modified the penalty issued by the Administrative
Law Judge (ALJ) from dismissal to a 120-day suspension. The CSC also
awarded Shorter back pay, benefits and seniority after his suspension and until
his reinstatement. The DOC also appeals the CSC's February 8, 2019 decision
denying its motion for reconsideration and for a stay.
1
When Shorter tested positive for THC, it was classified as a Schedule I
controlled substance in New Jersey. N.J.S.A. 24:21-5(e)(17) (2017); see also
21 U.S.C. § 812(c)(c)(17) (2017) (classifying THC, without exception, as a
Schedule I substance under the federal Controlled Substances Act). The
classification of THC has since been amended, effective August 9, 2019, to
exclude "hemp or a hemp product cultivated, handled, processed, transported,
or sold pursuant to the New Jersey Hemp Farming Act." N.J.S.A. 24:21-5(e)(17)
(2020); see also 21 U.S.C. § 812 (c)(c)(17) (2020) (defining THC at the federal
level to exclude hemp with a THC concentration of 0.3 percent or less).
A-3150-18T3
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I.
At the time the disciplinary charges were filed, Shorter was a seventeen-
year veteran of the DOC, who had earned various commendations, including
working during an emergency, assisting in saving the life of an inmate who had
been stabbed, and "gathering information [related to] a major drug bust." During
his long tenure with the DOC, he maintained a largely unblemished disciplinary
record with a single recorded disciplinary incident for being late to work in
December 2003 due to a power outage which prevented his alarm from
functioning.
When he first became employed with the DOC, Shorter acknowledged
receipt of several departmental policies, including the DOC's Law Enforcement
Personnel Rules and Regulations, which prohibited employees from using any
illegal drug or controlled dangerous substance, either on or off duty. He also
received various Human Resources Bulletins, which included information on the
DOC's random urine drug screening procedures and the penalties for employees
who test positive.
A-3150-18T3
3
On September 7, 2017, Shorter purchased a bottle of "CBD oil"2 from
Relievus Pain Management, an interventional pain management practice, where
Shorter was being treated by Young J. Lee, M.D., and Nurse Practitioner Russell
M. Little for pain resulting from "degenerative arthritis in his spine" and
herniated discs. During his treatment, Shorter underwent multiple injections,
including nerve blocks. As these prior efforts to relieve his pain proved
unsuccessful, and because Shorter "wanted to get better without the use of
narcotics," Dr. Lee recommended Shorter use CBD oil, represented to him as a
legal product which he claimed would help with the inflammation in his spine.
Mindful of the DOC's random drug screening policy, Shorter asked Little
whether the CBD oil could potentially come up as positive on a drug test. Little
told Shorter the CBD oil "will not show up as a positive for THC" on the drug
test, relying on information he had been told by the "head doctors" at Relievus.
2
CBD, or cannabidiol, is "one of the 'unique molecules found in the Cannabis
sativa plant." Horn v. Med. Marijuana, Inc., 383 F. Supp. 3d 114, 119
(W.D.N.Y. 2019) (internal citation omitted). The Cannabis sativa plant is the
plant from which marijuana and hemp are derived. Ibid. The difference between
the two is that "drug-use cannabis is produced from the flowers and leaves of
certain strains of the plant, while industrial-use [hemp] is typically produced
from the stalks and seeds of other strains of the plant." Ibid. This leads to
differences in the concentration of THC in each variety.
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Shorter did not visit the product's description page on the Relievus website, and
therefore did not see that the CBD oil contained "0.3 percent THC."
Taking the CBD oil required Shorter to place "[f]ifteen droplets
underneath [his] tongue twice a day, once in the morning and once at night."
Shorter began taking the CBD oil on the morning of September 8, 2017 and
continued to do so through the morning of September 12, 2017.
That day, Shorter was directed to the report to the Special Investigations
Division, where he was informed that he had been selected for a random urine
screen. Prior to providing his urine sample, Shorter signed a form
acknowledging that a positive test result would lead to his dismissal and
permanent bar from serving as a law enforcement officer in New Jersey. He
also filled out a form which required him to list all prescription and non-
prescription medications he had taken in the past thirty days. Shorter listed
several medications but claims that he forgot to list the CBD oil he began taking
four days earlier.
The State lab performed two tests on Shorter's urine sample, which
detected twenty-three nanograms (ng) per milliliter (mL) of a THC metabolite.
The "industry accepted" cut-off level for the THC metabolite and used by the
State of New Jersey for testing purposes is fifteen nanograms ng/mL, which is
A-3150-18T3
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intended to account for "casual, accidental exposure." When a medical review
officer cross-referenced Shorter's results with his medication form, none of the
listed medications accounted for the positive test result. After learning of the
positive result, Shorter provided the DOC with a note on a Relievus prescription
pad stating that he had been "prescribed CBD oil." Shorter denied ever using
marijuana or any other illicit substance. In this regard, he had previously
successfully passed ten random drug screens during the course of his career.
Despite his explanation and denial, the DOC served Shorter with a
Preliminary Notice of Disciplinary Action seeking his removal as a correctional
officer because he tested positive for THC. Specifically, Shorter was charged
with: 1) conduct unbecoming a public employee, N.J.A.C., 4A:2-2.3(a)(6); 2)
other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12); 3) conduct unbecoming a
public employee, Human Resource Bulletin (HRB) 84-17: C-11; 4) reporting for
duty while under the influence of intoxicating liquor or drugs, HRB 84-17: C-2;
5) use, possession, or sale of any controlled dangerous substance, HRB 84 -17:
C-30; 6) violation of a rule, regulation, policy, procedure, order or
administrative decision, HRB 84-17: E-1. Shorter waived his right to a
departmental hearing and was subsequently served a Final Notice of
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Disciplinary Action which terminated his employment with the DOC effective
November 7, 2017.
Shorter subsequently appealed his removal to the Office of Administrative
Law (OAL), and the matter was heard as a contested matter before an ALJ on
March 23, 26, and 27, 2018. Twelve witnesses testified, including two experts
in the field of toxicology: Shorter's expert, Gary Lage, Ph.D., and the DOC's
expert, Robert Havier, Ph.D. In addition, Shorter called several character
witnesses, including current and former DOC employees, all of whom testified
that they had never seen or heard Shorter talk about using illegal drugs and that
he performed his duties in an exemplary fashion.
Dr. Lage concluded to a reasonable degree of scientific certainty that
Shorter's positive test result was "not consistent with marijuana use" and likely
caused by the CBD oil he had taken that morning. Dr. Lage noted that the CBD
product Shorter was taking had been derived from "hemp oil extract," which,
unlike pure CBD oil, contains small levels of THC. Dr. Lage also testified that
he visited the Relievus website and determined that the CBD oil Shorter ingested
was "an extract of hemp," which "by definition . . . would contain small
quantities of THC." Relying on this information along with the "low levels of
the marijuana metabolite" detected in his urine, Dr. Lage concluded that
A-3150-18T3
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Shorter's positive test result was entirely "consistent with the product that [he]
was using." Significantly, Dr. Lage also confirmed that the level of THC in the
hemp-based product Shorter used was "insufficient to produce a psychoactive
effect."
Dr. Havier testified that although Shorter's sample yielded a positive test
result for THC, it was impossible to identify the exact source of the THC
detected. Dr. Havier conceded, however, that it was a "possibility" that the THC
metabolites detected in his urine "came from the hemp oil extract."
On May 8, 2018 the ALJ issued her decision. She found both expert
witnesses to be credible but found Dr. Havier's testimony to be "more
persuasive." The ALJ specifically found that Shorter was not credible regarding
his claim that he "forgot" to list the "CBD oil" on the medication form he
completed immediately prior to his urine screen. The ALJ based its adverse
credibility findings on the number of times and unique way the CBD oil was
ingested by Shorter and the fact that he had listed other medications on the form.
The ALJ concluded that the DOC had met its burden of proof on all the
disciplinary charges and found that "the only appropriate penalty" for Shorter's
positive drug test was termination. The ALJ explained that the DOC's drug
A-3150-18T3
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policy "does not call for a range of discipline" and thus "removal is the only
option for a violation of the drug testing policy."
Shorter appealed to the CSC. After conducting a review of the record, the
CSC adopted the ALJ's factual and credibility findings and agreed that the DOC
had met its burden of proof with respect to all the charges. As noted, the CSC,
however, modified Shorter's sanction from termination to a 120-calendar-day
suspension. In doing so, the CSC relied on principles of progressive discipline,
citing Shorter's long service, nearly untarnished disciplinary record, and the
indication in the record that the CBD oil "likely" was the cause of his positive
test result as mitigating factors that warranted a reduced penalty. Specifically,
the CSC found:
In the instant matter, [Shorter] had no prior major
disciplinary actions since his employment began in
May 2001 and his record indicates that he received one
minor disciplinary action, a written reprimand in 2003.
Moreover, given the actual incident in question, the
Commission does not find removal to be appropriate
under these circumstances. In this regard, while it is
clear [Shorter] tested positive for small amounts of
THC, the record also indicates that CBD oil, for which
[Shorter] had a valid prescription 3 likely caused the
positive result. Further, while [Shorter] should have
indicated his CBD oil use on his medication form, in
3
On reconsideration, the CSC acknowledged that the note Shorter received from
Little was not an actual prescription but indicated that error did not affect its
decision.
A-3150-18T3
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the present case his failure to do so should not result in
his termination. Accordingly, the [CSC] imposed a
120-calendar[-]day suspension, which will serve as an
indication that any future infractions committed by
[Shorter] will potentially subject him to removal from
employment. In addition, [Shorter] is advised that he
must properly and fully complete any future medication
forms given as part of his drug screening.
After the CSC denied the DOC's motion for reconsideration and a stay of the
order restoring Shorter to his position, this appeal followed.
II.
The DOC argues that the CSC's decision to reduce Shorter's disciplinary
sanction from removal to a 120-day suspension was arbitrary, capricious, and
unreasonable and therefore must be reversed. The DOC bases its argument on
its zero-tolerance drug use policy, which mandates removal for those employees
who test positive for certain illegal substances. It further contends that the CSC
erred in failing to defer to the DOC's expertise as a law enforcement agency on
matters pertaining to safety and security. Moreover, the DOC asserts that the
CSC failed to explain its finding that CBD oil was the likely cause of Shorter's
failed drug screen. We disagree with all of these arguments.
Our review of a final agency decision is limited, and we "do not ordinarily
overturn such a decision 'in the absence of a showing that it was arbitrary,
capricious or unreasonable, or that it lacked fair support in the evidence.'" In re
A-3150-18T3
10
Carter, 191 N.J. 474, 482 (2007) (citation omitted). Further, we may not
substitute our judgment for that of the agency's when "substantial credible
evidence supports [the] agency's conclusion . . . ." Greenwood v. State Police
Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). Instead, we "defer
to an agency's expertise and superior knowledge of a particular field." Ibid.
(citations omitted). "While we must defer to the agency's expertise, we need not
surrender to it." N.J. Chapter of Nat'l. Ass'n of Indus. and Office Parks v. N.J.
Dep't of Envt'l Prot., 241 N.J. Super. 145, 165 (App. Div. 1990). An appellate
court therefore does not automatically accept an agency's interpretation of a
statute or a regulation, and reviews strictly legal questions de novo. Bowser v.
Bd. of Trs., Police & Fireman's Ret. Sys., 455 N.J. Super. 165, 170-71 (App.
Div. 2018).
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." In re Herrmann, 192 N.J.
19, 28 (2007) (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
A-3150-18T3
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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).
In reviewing the penalty imposed, the CSC has long utilized the concept
of progressive discipline, which is based on the notion that "past misconduct can
be a factor in the determination of the appropriate penalty for present
misconduct." Id. at 29 (citation omitted). The CSC has applied progressive
discipline in two different ways: to "support the imposition of a more severe
penalty for a public employee who engages in habitual misconduct," id. at 30,
or to reduce the penalty for "an employee who has a substantial record of
employment that is largely or totally unblemished by significant disciplinary
infractions," id. at 33. However, the CSC is not required to consider progressive
discipline when employee misconduct is "so serious that removal is appropriate
notwithstanding a largely unblemished prior record." Carter, 191 N.J. at 484.
III.
Here, the DOC points to its statutory mission as a law enforcement agency
in support of its contention that the CSC was bound to defer to its zero-tolerance
drug policy. It specifically relies on Bowden v. Bayside State Prison, 268 N.J.
Super. 301, 306 (App. Div. 1993) for the proposition that courts should defer to
A-3150-18T3
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the "expertise of the corrections officials" in managing their institutions.
Bowden is not controlling as it is factually distinguishable from the
circumstances here.
In Bowden, we concluded that the Merit System Board4 improperly
reduced a corrections officer's penalty from removal to a six-month suspension
where he "played cards with inmates for cigarettes." Id. at 303. We stressed
that "it is the appraisal of the seriousness of the offense which lies at the h eart
of the matter." Id. at 305. In doing so, we found that the officer's conduct
"subverted the discipline" at the prison and that "the Board did not adequately
consider the seriousness of the charges" when it reduced the officer's sanctions.
Id. at 306.
Here, as the CSC correctly notes, the DOC has not established that
Shorter's conduct, based only on his failed drug screen, "subverted the
discipline" at the prison. Indeed, the DOC provided no evidence that Shorter
was intoxicated or exhibited any psychoactive symptoms from the THC in the
CBD oil during the performance of his duties. Shorter also did not engage in
any illicit activities with or around inmates at the prison, unlike the officer in
4
Pursuant to P.L. 2008 c. 29, the Merit System Board was renamed the CSC,
effective June 30, 2008.
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Bowden. Shorter's conduct (and his prior disciplinary record) clearly did not
rise to the level of impropriety engaged in by the officer in Bowden, as he only
began taking the CBD oil after consulting multiple licensed medical
professionals.
Moreover, contrary to the DOC's argument that "decisions of the DOC in
determining what is unacceptable behavior in its staff must be given higher
deference than other agencies," the New Jersey Supreme Court has noted that
"there is no statutory authority for a law enforcement exception to the normal
standard of Commission review." Henry v. Rahway State Prison, 81 N.J. 571,
578 (1980).
In Henry, the Court considered a similar DOC argument regarding two
corrections officers whose DOC-ordered removals were reduced to suspensions
after review by the CSC. Id. at 574. Citing safety and security policy reasons,
the DOC contended that a different standard of review applied to law
enforcement agencies, which required the CSC to "affirm the penalty imposed
by an appointing authority absent an abuse of discretion." Id. at 578. The Court
concluded there was no statutory basis for this special standard of review,
observing that it was "for the Legislature, not the judiciary, to decide whether
the civil service law should provide that the Commission must sustain
A-3150-18T3
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disciplinary actions of law enforcement or other agencies absent an abuse of
discretion." Id. at 579; see also Thurber v. City of Burlington, 387 N.J. Super.
279 (App. Div. 2006) (affirming the Merit System Board's reduction of city
administrator's sanction of termination to a six-month suspension for reckless
driving); Belleville v. Coppla, 187 N.J. Super. 147 (App. Div. 1982) (affirming
the CSC's reduction of municipal employees' sanction of removal to a sixty-day
suspension for insubordination and neglect of duty but remanding for calculation
of back pay); N.J. Dep't of Corr. v. Torres, 164 N.J. Super. 421 (App. Div. 1978)
(affirming the CSC's reduction of corrections officer's sanction of removal to a
sixty-day suspension for sleeping on duty).
Here, the DOC essentially renews its argument in Henry, asserting that
safety and security policy considerations require the CSC to apply the DOC's
zero-tolerance drug policy regardless of the CSC's authority to conduct a de
novo review of the imposed penalty. We reject that argument. As noted in
Henry, there is no statutory basis for such a special standard of review.
In our view, the CSC's decision to downgrade Shorter's penalty cannot
fairly be characterized as "so disproportionate to the offense, in light of all the
circumstances, as to be shocking to one's sense of fairness." In re Herrmann,
192 N.J. at 28-29 (2007) (quoting Polk, 90 N.J. at 578). Shorter had a nearly
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unblemished disciplinary record during his seventeen years of service at the
DOC. The record supports the CSC's observation that, given the small amounts
of THC detected in his sample, it was entirely possible that Shorter's positive
result was caused by the CBD oil recommended to him by his pain management
doctor.
In this regard, Shorter's expert, Dr. Lage, testified that the "low levels" of
THC found in Shorter's urine "most likely resulted from his use of CBD oil."
Dr. Lage based this opinion on the fact that the product Shorter was using "was
an extract of hemp," which would contain "small quantities of THC," and the
product's website confirmed this fact. While the DOC's expert, Dr. Havier,
emphasized that there was no way of conclusively determining what the source
of the THC was, he also admitted that "the hemp oil could produce it."
In her findings of fact, the ALJ concluded "both Dr. Havier and Dr. Lage
testified credibly," although she found Dr. Havier to be "more persuasive." The
ALJ made no factual finding regarding the cause of the positive test result.
Because both expert witnesses testified that the positive result could have been
caused by the CBD oil and the ALJ made no negative credibility determinations
regarding either of those witnesses, the record supports the CSC's conclusion.
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Further, as noted, the CSC was not bound by the DOC's findings in
determining the appropriate penalty as the DOC's decision was subject to de
novo review by the CSC. In doing so, the CSC properly considered the
mitigating circumstances of Shorter's positive drug screen, including the fact
that he relied on the advice of medical professionals in ingesting CBD oil shortly
before the test. See Henry, 81 N.J. at 580 (finding that the CSC's reduction of a
penalty from removal to suspension was warranted where it "properly
considered . . . mitigating factors"). We are also mindful of the CSC's
experience in adjudicating a wide span of disciplinary cases at all levels of
government, including both law enforcement and non-law enforcement
employees.
Finally, we reject the DOC's concerns that the CSC's decision, and our
affirmance, will "permit other custody officers to flout laws governing use of
controlled substances, leading to a breakdown in employee morale and
discipline, and jeopardizing the DOC's ability to fulfill its statutory obligations."
We are satisfied that the idiosyncratic facts presented before the ALJ regarding
Shorter's health condition, his documented course of treatment, and the
testimony from his healthcare provider and expert are sufficiently unique such
that we consider any concern that our, or the CSC's, decision will foster wide-
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spread illicit drug use by correctional officers and adversely affect the DOC's
statutory mission as unsupported and overstated.
Moreover, we conclude it is unlikely that, as the DOC argues, Shorter's
suspension would "lead to a general breakdown in employment discipline" and
would "sow[] confusion among custody officers as to what 'zero tolerance'
means . . . ." While we acknowledge that Shorter has not challenged his penalty
by way of cross-appeal, we note that effective January 1, 2019, the Agriculture
Improvement Act of 2018, Pub. L. 115-334 removed "[THC] in hemp," or hemp-
derived products containing a THC level of "not more than 0.3 percent" from
the Controlled Dangerous Substances Act, 21 U.S.C. 812(c). The New Jersey
Legislature passed a similar statute effective August 9, 2019, the New Jersey
Hemp Farming Act, P.L. 2019, c. 238, which permitted the manufacture and sale
of hemp products. It also amended the definition of THC under Schedule I of
the controlled dangerous substances statute, N.J.S.A. 24:21-5(e)(17), to exclude
"hemp or a hemp product cultivated, handled, processed, transported, or sold
pursuant to the New Jersey Hemp Farming Act," effective August 9, 2019. As
such, we reject the DOC's assertion that Shorter's positive test for a substance
that it appears he can now obtain legally at the state and federal level sows
confusion regarding the DOC's disciplinary policies.
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Equally important in this regard is the fact that the CSC's sanction was
hardly de minimis. To the contrary, Shorter was severely penalized with a
lengthy suspension without pay for failing to accurately complete the medication
form, a disciplinary action that remains on his employment record and which
will undoubtedly impact the DOC's consideration under progressive discipline
principles should Shorter commit any future violations. Under these
circumstances, we conclude the CSC did not abuse its discretion in reducing
Shorter's penalty from dismissal to a 120-day suspension.
To the extent we have not addressed any of the DOC's arguments it is
because we have concluded they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
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