Appeals Court Examines When Marijuana Use by New Jersey Law Enforcement Officers Can Justify Termination – and When it Can’t

An appellate court recently issued two opinions in appeals from the New Jersey Civil Service Commission regarding the termination of three police officers sought by the Jersey City Police Department because the officers were positive for marijuana use in urinalysis tests.  In the decisions, the court set a line between when termination is allowed and when prohibited under New Jersey’s regulation of marijuana use.

 

Three Positive Urinalysis Tests

The three officers, Norhan Mansour, Omar Polanco and Montavious Patten, all had positive results for marijuana from urinalysis tests.  In subsequent interviews with Jersey City Police Department Internal Affairs investigators, they admitted the use.  Officers Mansour said that he had purchased the marijuana at a legal dispensary and produced receipts.  Officer Polanco also stated that he had purchased the marijuana at a legal dispensary but did not have receipts.  Officer Patten purchased the marijuana from a friend named “Sal,” who told Patten that he had purchased it from a legal dispensary.  There was no allegation that the officers were under the influence of marijuana on the job.

The Jersey City Police Department then issued Preliminary Notices of Disciplinary Action (PNDAs) seeking the officers’ termination.  After a departmental hearing, Final Notices of Disciplinary Action (FNDAs) were issued terminating the officers’ employment.  The officers appealed to the New Jersey Civil Service Commission.  The matters were heard separately by administrative law judges (ALJs) on summary decision.

 

Mansour and Polanco

In the Mansour and Polanco cases, ALJs recommended reinstating the officers.  Jersey City argued that despite its status under New Jersey law, marijuana was still illegal under federal law and therefore the officers could not use it.  Additionally, officers were required to carry firearms, and the federal Gun Control Act (GCA) bars the officers from serving because it bars cannabis users from possessing, using or carrying firearms.  The ALJ rejected these arguments.

The ALJs’ decisions were based on the plain language of the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), which provides that:

No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke,… or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid from engaging in conduct permitted under [CREAMMA].

Moreover, drug testing is only allowed under CREAMMA only “when there is reasonable suspicion of the employee’s use of cannabis while working or when there are observable signs of intoxication; and random drug testing is also permitted but only to determine use during prescribed work hours.”  Thus, because the Jersey City Police Department was subject to CREAMMA and there was no evidence of intoxication or use during working hours, termination was precluded.

Moreover, the ALJs found that the GCA does not preempt New Jersey law, but even if it did it still would not bar the officers from serving because the GCA “expressly exempts from its proscriptions, firearms or ammunition `issued for the use of… any State or… political subdivision thereof.”

 

Patten

In the Patten case, the ALJ went though a similar analysis of the law, also finding CREAMMA controlled and the GCA did not apply.  However, the facts in this case were different from those in the Mansour and Polanco cases.

In this case, Officer Patten did not allege that he purchased the marijuana from a legal dispensary – rather, he said he bought it from his friend Sal, who bought it from a dispensary.  This, the ALJ found, violated CREAMMA, which provides that possession of marijuana is legal only if purchased directly from a licensed dispensary.  She thus found that:

Patten specifically violated: N.J.S.A. 24:6I-32(c), for engaging in the unregulated distribution of cannabis; N.J.S.A. 2C:35-10a, for the unlawful possession of cannabis which was not prescribed for him or that was not directly obtained from a licensed dispensary or practitioner; and N.J.[A.C.] 17:30-2.1(b)(1), for the unlawful purchase of cannabis from an unlicensed dispensary.

The ALJ thus recommended that the termination sought by Jersey City be upheld.

 

The Civil Service Commission’s Decisions

Jersey City and Patten appealed the respective decisions to the New Jersey Civil Service Commission.  The Commission upheld the three decisions.  The parties then appealed to the Appellate Division of the Superior Court of New Jersey.

 

The Appellate Division’s Decisions

The Appellate Division consolidated the Mansour and Polanco cases, and considered the Patten case separately.  It issued separate decisions simultaneously upholding the Civil Service Commission’s decisions upholding the ALJs’ recommendations.

By delivering the decisions the same day, the Appellate Division set the parameters of the permissibility of cannabis use by New Jersey law enforcement officers.  It summarized this in the Mansour and Polanco case thus:

In summary, we conclude the JCPD may comply with both the GCA and CREAMMA. Because the GCA does not preempt CREAMMA, we discern no error in the CSC’s decision that Mansour’s and Polanco’s use of regulated cannabis, off duty, could not sustain the JCPD’s removal decisions. We therefore affirm the CSC’s July 24, 2024 decisions in both matters.

However, it upheld Patten’s termination because, unlike Mansour and Polanco, he did not purchase the marijuana directly from a licensed dispensary (even if his friend “Sal” did).  This violated the requirements of CREAMMA, and therefore justified his termination.

 

The Takeaway

While it is unclear if the case has been appealed to the New Jersey Supreme Court, until another court issues a contrary decision these cases stand for the proposition that CREAMMA prevents New Jersey law enforcement agencies from terminating their officers for using marijuana off-duty, provided they purchased it from a licensed dispensary, and neither are intoxicated nor use it at work.  Thus, it is vital to keep receipts from purchase from a licensed dispensary.

However, it is important to bear in mind that these are unpublished decisions (which may be appealed), and therefore persuasive and not binding authority, meaning that future cases may change this interpretation.  Likewise, since marijuana stays in the blood stream for around 30 days, it is possible that a department bent on termination could try to use any use as circumstantial evidence of use or impairment on the job.  Thus, any use of marijuana is risky for law enforcement officers.

That being said, as these cases make clear, there is a robust appeal process for charges of wrongful use of marijuana by New Jersey law enforcement officers.

 

Contact Us

Our employment attorneys represent New Jersey law enforcement and other government employees in civil service and non-civil service jurisdictions in all aspects of New Jersey employment law, including disciplinary appeals.  Call us at (973) 890-0004 of fill out the contact form on this page to schedule a consultation with one of our New Jersey employment lawyers.  We can help.