                             NOT FOR PUBLICATION WITHOUT THE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
                                       2
                                    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.
                                                                        A-3150-18T3
                                       4
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
                                       5
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




                                                                        A-3150-18T3
                                       6
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
                                       7
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
                                        8
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
                                         9
            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
                                      11
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
                                       12
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.
                                                                            A-3150-18T3
                                        13
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
                                      14
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


                                                                            A-3150-18T3
                                       15
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.




                                                                            A-3150-18T3
                                       16
      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-


                                                                             A-3150-18T3
                                        17
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.


                                                                        A-3150-18T3
                                      18
      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.




                                                                        A-3150-18T3
                                      19
