NOT FOR PUBLICATION WITHOUT THE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-4797-18T2
DARIN MCCLENNY,
Plaintiff-Appellant,
v.
PBA LOCAL 105, NJ STATE
POLICEMEN'S BENEVOLENT
ASSOCIATION,
Defendant-Respondent.
___________________________
Argued October 14, 2020 – Decided November 25, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1345-17.
Samuel J. Halpern argued the cause for appellant.
Arthur J. Murray argued the cause for respondent
(Alterman & Associates, LLC, attorneys; Stuart J.
Alterman, of counsel; Arthur J. Murray, on the brief).
PER CURIAM
Plaintiff Darin McClenny appeals from an order granting summary
judgment to defendant PBA Local 105 (PBA) and dismissing his complaint,
which alleged that PBA breached its duty to fairly represent him at a disciplinary
proceeding that resulted in his termination. Following the close of discovery,
plaintiff had no evidence establishing that he had a defense to the disciplinary
charge. Moreover, a governing policy issued by the Attorney General required
that he be fired. Accordingly, we affirm.
I.
We take the facts from the summary judgment record, noting that the
parties agree that the material facts relevant to summary judgment are not in
dispute. Plaintiff was employed as a senior corrections officer for the
Department of Corrections (DOC). In December 2014, he was charged with
violating regulations and DOC rules because he tested positive for cocaine in
his urine following a random drug test. The notice of discipline sought to
terminate his employment.
Following a departmental hearing, the charges were sustained, and
plaintiff was served with a final notice informing him that his employment with
DOC was terminated. Plaintiff filed an administrative appeal, requesting a
hearing before an administrative law judge (ALJ) in the Office of Administrative
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Law (OAL). As a civil service employee, plaintiff was entitled to a de novo
hearing before an ALJ. Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361
(App. Div. 1994).
PBA, which is the collective bargaining unit for DOC corrections officers,
agreed to represent plaintiff in the OAL. A PBA member was assigned to
represent plaintiff because plaintiff had elected not to pay for a PBA lawyer or
hire his own lawyer.
In April 2015, DOC moved in the OAL for summary disposition of the
charges against plaintiff. PBA did not oppose that motion, nor did it inform
plaintiff that the motion had been filed. On June 29, 2015, the ALJ granted
DOC's motion, finding that plaintiff had violated regulations and DOC rules by
testing positive for the use of an illegal drug, and upholding the decision to
terminate plaintiff's employment with DOC.
The ALJ found that by testing positive for use of an illegal drug, defendant
had engaged in conduct unbecoming of a public employee, N.J.A.C. 4A:2 -
2.3(a)(6), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). The ALJ also
found that plaintiff had violated DOC rules prohibiting the use of illegal drugs.
In upholding plaintiff's termination from employment, the ALJ expressly
noted: "The penalty for the use of any controlled dangerous substance is
A-4797-18T2
3
removal from the employment position, and preclusion from other law
enforcement employment." While the ALJ also went on to consider the concept
of progressive discipline, she ultimately held: "[T]here can be no conclusion
but that removal is required. There can be no tolerance for the use of a medically
unprescribed Schedule II [controlled dangerous substance] by a law-
enforcement officer."
PBA did not file an exception to the ALJ's initial decision. Plaintiff did,
however, seek reconsideration, arguing that he had been hospitalized when the
ALJ issued her decision and he did not have an opportunity to be heard. On July
15, 2015, the Commission rejected plaintiff's argument for reconsideration and
issued a final agency decision, in which it independently evaluated the record
and adopted the ALJ's findings and legal conclusions. Accordingly, the
Commission affirmed plaintiff's removal from employment with DOC.
In issuing its final determination, the Commission stated:
Moreover, the facts as noted by the ALJ are not in
dispute. The petitioner's urine specimen tested positive
for benzoylecgonine, a metabolite of cocaine, a
controlled dangerous substance. The laboratory finding
was not contested, nor has petitioner proffered any
explanation for the positive result. Accordingly, there
exists no basis to disturb the Commission's decision.
A-4797-18T2
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Plaintiff again sought reconsideration, but the Commission rejected his
arguments and issued another final determination on November 10, 2015.
In June 2017, plaintiff sued PBA contending that PBA had breached its
duty to fairly represent him at his disciplinary proceedings. Plaintiff sought
"economic compensatory damages for continued salary and benefits of
employment[.]" Plaintiff also sought punitive damages and damages for pain,
suffering, "emotional distress, anxiety, humiliation and reputational harm[.]"
Following the completion of discovery, PBA moved for summary
judgment. For purposes of the motion, PBA conceded that it had failed to
adequately represent plaintiff in the disciplinary proceedings. PBA asserted ,
however, that plaintiff had no evidence to show that PBA's failure caused him
any harm. In that regard, PBA argued that plaintiff had no evidence to dispute
the positive drug test and plaintiff had admitted he used cocaine within several
days of the random drug test. PBA also argued that under a policy issued by the
Attorney General, any law enforcement officers who tested positive for illegal
drugs had to be terminated.
Plaintiff opposed the motion, primarily contending that if he had appeared
before the ALJ, he would have been able to argue for a penalty less severe than
termination. He asserted that he would have testified that when he tested
A-4797-18T2
5
positive for cocaine use, he was under a great deal of stress because his mother
was suffering from cancer and he was facing several financial and familial
problems.
The trial court heard oral arguments on May 24, 2019. The court then
granted summary judgment to PBA, concluding that plaintiff could not establish
damages. In that regard, the court noted that plaintiff had no expert, and he
needed an expert to tell a jury whether an ALJ could have imposed a penalty
less than termination of his employment. Alternatively, the trial court ruled that
the Attorney General's policy required that plaintiff be fired.
II.
On appeal, plaintiff makes two arguments, contending the trial court erred
in (1) holding that the Attorney General's policy required termination once
plaintiff was found to have used illegal drugs; and (2) applying a legal
malpractice standard. We are not persuaded by either of these arguments.
We review a grant of summary judgment using the same standard that
governs the motion court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Under that standard, summary judgment will be granted when "the competent
evidential materials submitted by the parties," viewed in the light most favorable
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to the non-moving party, show that there are no "genuine issues of material fact"
and that "the moving party is entitled to summary judgment as a matter of law."
Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217
N.J. at 38); accord R. 4:46-2(c). "An issue of material fact is 'genuine only if,
considering the burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the trier of fact.'"
Grande, 230 N.J. at 24 (quoting Bhagat, 217 N.J. at 38). We owe no special
deference to the motion court's legal analysis. RSI Bank, 234 N.J. at 472 (citing
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016)); Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)).
Plaintiff has conceded that he has no defense to the charge of testing
positive for the use of cocaine. Indeed, the record establishes that plaintiff has
no evidence to dispute the positive drug test. He did not submit an expert report
or any other evidence that would allow a factfinder to conclude that the drug test
was not properly conducted and did not establish his use of cocaine.
A-4797-18T2
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Consequently, to show damages, plaintiff must establish a causal link
between PBA's inadequate representation of him before the ALJ and his
termination. In other words, unless plaintiff can show that the ALJ could and
probably would have imposed a penalty less than termination, plaintiff cannot
establish any damages from PBA's failure to adequately represent him before
the ALJ.
The legal question presented is whether the Attorney General's policy
allows an ALJ to impose a penalty other than termination. We hold that it does
not. Since 2001, the Attorney General has issued a "Law Enforcement Drug
Testing Policy" (the Attorney General's Policy). See Off. of the Att'y Gen.,
Attorney General's Law Enforcement Drug Testing Policy (2018),
https://www.nj.gov/oag/dcj/njpdresources/pdfs/Drug-Test-Policy_2018-05.pdf.
The Policy governs, among other things, random drug testing of law
enforcement officers under the legal authority of the Attorney General and the
penalty for testing positive. Id. at 3-4, 12. As a DOC corrections officer,
plaintiff was subject to the Attorney General's Policy. N.J.S.A. 52:17B-97 to
117.
Both the version of the Policy in effect when plaintiff tested positive (the
2012 version) and the current version of the Policy (revised in 2018) state:
A-4797-18T2
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"When a sworn law enforcement officer tests positive for illegal drug use" the
officer shall be administratively charged and, upon final disciplinary action, he
or she "shall be terminated from employment as a law enforcement officer. . .
The officer shall be permanently barred from future law enforcement
employment in New Jersey." Attorney General's Law Enforcement Drug
Testing Policy, at 12. We discern no ambiguity or leeway in the Attorney
General's Policy. Following a disciplinary action, if a law enforcement officer
is found to have tested positive for illegal drug use, the officer must be
terminated.
Plaintiff argues that there is some leeway in imposing a disciplinary
penalty because, in March 2018, the Attorney General issued Directive No.
2018-3 concerning "Statewide Mandatory Early Warning Systems." See Off. of
the Att'y Gen., Directive No. 2018-3, Statewide Mandatory Early Warning
Systems (2018), https://www.state.nj.us/lps/dcj/agguide/directives/ag-
directive-2018-3.pdf. Plaintiff contends that Directive No. 2018-3 implies that
a penalty less than termination can be imposed in a disciplinary action because
the Directive includes a footnote that states:
This Directive, and [Early Warning] Systems generally,
are focused on corrective actions to remediate officer
behavior and to provide assistance to the officer. This
Directive and [Early Warning] Systems generally, do
A-4797-18T2
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not address disciplinary actions that might be warranted
against an officer. Such disciplinary actions – to
include the decision to suspend, terminate or, if
applicable, charge an officer with criminal conduct –
remain within the purview of the agency's internal
affairs function, and may be imposed in accordance
with existing internal affairs guidelines and applicable
law, separate from and independent of the [Early
Warning] System.
[Id. at 4 n.2.]
We disagree with plaintiff's interpretation of Directive 2018-3. The
Directive addresses a wide range of potential problems law enforcement officers
may be facing and is "designed to detect patterns and trends in police conduct
before the conduct escalates." Id. at 1. Accordingly, the Directive addresses
many actions or problems, including drug or alcohol abuse. The footnote
plaintiff relies on was added at the end of a list of potential
"[r]emedial/corrective action[s]" once "an officer has displayed the requisite
number of performance indicators necessary to trigger the [Early Warning]
System review process[.]" Id. at 3.
Accordingly, when read in context, the footnote does not supersede or
change the Attorney General's Policy. Indeed, the footnote expressly states that
the Directive and the Early Warning Systems "do not address disciplinary
actions." Id. at 4 n.2. Such disciplinary actions can include discipline for
A-4797-18T2
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infractions other than testing positive for drug use. Hence, the reference to other
types of disciplinary penalties makes sense in the footnote. The reference,
however, does not supersede the clear language and mandate in the Attorney
General's Policy.
Furthermore, there is no evidence that plaintiff was identified as having a
problem under the Early Warning System. To the contrary, plaintiff was given
a random drug test and he did not voluntarily disclose that he was using illegal
drugs.
We also reject plaintiff's argument that the trial court erred in applying a
legal malpractice standard in this action. First, the trial court did not really apply
a legal malpractice standard. Instead, the trial court correctly recognized that
plaintiff's claim was dependent on being able to show that had he appeared at
the proceedings before the ALJ, he would have been able to convince the ALJ
to impose a penalty less than termination. We have already construed the
Attorney General's Policy to prohibit such an argument.
Nevertheless, even if the Attorney General's Policy did not clearly require
plaintiff's termination, plaintiff would still have to present some evidence to
convince a factfinder that the ALJ probably would have accepted plaintiff's
argument and probably would have imposed a penalty less than termination. A
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review of the record establishes that plaintiff has no evidence that would support
such an argument. Instead, given the evidence in the record, plaintiff could have
only asked the jury to speculate as to what might or might not have happened at
the ALJ hearing.
It was within this context that the trial court discussed the need to establish
a standard by which the ALJ could have been persuaded to impose a penalty less
than termination. As we agree with the motion court's legal determination
concerning the Attorney General's Policy, we need not reach this alternative
ground used by the motion court.
Affirmed.
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