NJ State PBA Legal Corner
By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.
In the November 2022 issue of NJ Cops Magazine, we reported on a decision by an administrative law judge (ALJ) in Carralero vs. West New York that reversed the termination of a West New York police officer for testing positive for cannabis on a random test. In the January 2023 issue, we provided an update when the Civil Service Commission (CSC) reversed that decision and remanded it for further hearing.
The parties in that case have since settled it, and the officer is back to work. The unusual aspect of the case was the fact that the
officer had purchased cannabis after the recreational marijuana law became effective but before cannabis became legally available for purchase. There is a similar case pending in Jersey City, Lopez vs. Jersey City Police Department, in which an ALJ reversed the officer’s termination, and the CSC remanded it. A hearing is scheduled in the Office of Administrative Law later this month.
In the interim, a decision was recently issued by an ALJ that did not involve the purchase of cannabis before it became legally available. In Norhan Mansour vs. Jersey City Police Department, decided on June 21, another ALJ reversed the termination of a Jersey City police officer who tested positive for cannabis in a random test. In this case, however, the cannabis was purchased legally on the regulated market, a fact which was not present in the Carralero or Lopez cases.
The facts are as follows: In April 2022, the Jersey City Police Department (JCPD) issued an order stating that officers were prohibited from using cannabis on or off duty because it is illegal under federal law. In September 2022, Mansour was randomly selected for, and submitted to, a random drug test. The officer was subsequently terminated because she tested positive for cannabis in violation of the JCPD drug policy.
There were no allegations in the case that the officer used unregulated cannabis, i.e., cannabis purchased after the law became effective but before cannabis was available on the market. There was also no allegation that the officer used cannabis on the job or was impaired on the job. Nonetheless, the officer was terminated in March 2023.
By way of background, the New Jersey Cannabis Regulatory Enforcement Assistance and Marketplace Modernization Act (CREAMMA) was signed into law in February 2021. In August 2021, key portions of CREAMMA became effective. One of those provisions prohibits an employer from discharging or taking any adverse action against any employee solely for testing positive for cannabis.
The law does not carve out an exception for law enforcement officers. Nor does it prohibit an employer from terminating or taking any adverse employment action against an employee who uses cannabis on the job or who is impaired on the job. This was the law that was in effect when Mansour was tested in September 2022 and later terminated.
In her decision, the ALJ reversed the officer’s terminationand ordered that the city begin paying the officer immediately, retroactive to the date of termination, once the CSC issued a final decision. The CSC has not yet decided the case. The ALJ concluded that there is nothing in CREAMMA to suggest that it does not apply to law enforcement officers.
The ALJ also emphasized that there was no evidence presented that the officer used cannabis on the job or was impaired during work hours. The officer was terminated solely because a random drug test revealed the presence of cannabis. The ALJ concluded that CREAMMA superseded the JCPD policy to the extent that the policy allowed for the removal or discipline of an officer simply for testing positive for the use of cannabis and nothing more.
The JCPD argued that despite the language in CREAMMA, federal law prohibits the possession of a firearm or ammunition by users of cannabis. In other words, JCPD argued that the federal law superseded CREAMMA because federal law prohibits law enforcement officers who may use cannabis lawfully under state law from fulfilling their job duties because they receive, possess and utilize firearms and ammunition. The ALJ rejected this argument and concluded that federal law did not supersede state law because state law effectively provides immunity from state prosecution or adverse employment actions for any person – including law enforcement officers – for mere off-duty cannabis usage. The ALJ also noted that it was not impossible to comply with CREAMMA and federal law.
This case will have significant ramifications, more so than the Carralero or Lopez decisions, because it involved the legal use of regulated cannabis without evidence of on-the-job use or on-the-job impairment. If the ALJ’s decision is upheld by the CSC, and on any appeals, it should answer once and for all that the law applies to law enforcement officers and that officers are entitled to use cannabis off duty as long as they are not impaired during working hours. We will keep the NJ State PBA and its members apprised of future developments.