In the Matter of S.M., Etc.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3495-24 IN THE MATTER OF S.M.,1 MIDDLESEX COUNTY SHERIFF'S OFFICE. __________________________ Argued September 28, 2026 – Decided October 27, 2026 Before Judges Perez Friscia and Torregrossa-O'Connor. On appeal from the New Jersey Civil Service Commission, Docket No. 2025-2749. Catherine M. Elston argued the cause for appellant S.M. (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the briefs). Robert J. Merryman argued the cause for respondent Middlesex County Sheriff's Office (Apruzzese McDermott Mastro & Murphy, attorneys; Robert J. Merryman, of counsel and on the brief). Jennifer Davenport, Attorney General, attorney for respondent New Jersey Civil Service Commission (Brian D. Ragunan, Deputy Attorney General, on the statement in lieu of brief). 1 We use initials to protect confidentiality pursuant to R. 1:38-3(a)(2). PER CURIAM In this administrative disciplinary action, S.M., a former sheriff's officer with the Middlesex County Sheriff's Office ("MCSO"), appeals from the July 2, 2025 final decision of the New Jersey Civil Service Commission ("the Commission"), reversing in part the findings and initial decision of an administrative law judge ("ALJ") and entering summary decision de novo, determining S.M. violated his official duties and was properly terminated from his position. We affirm. I. The following summary synthesizes from the wider record the largely undisputed facts and procedural history pertinent to our review. After fifteen years of service in law enforcement, S.M., then employed as a sheriff's officer with MCSO since 2011, reported for duty on July 7, 2023, and was randomly drug tested along with twenty fellow officers. S.M. tested positive for the presence of alpha-hydroxy-alprazolam, a benzodiazepine generic for Xanax, for which he did not have a valid prescription. The MCSO's "Policy and Procedures" governing drug testing, applicable to and acknowledged by S.M., align with the Attorney General's Law Enforcement Drug Testing Policy ("AG Guidelines") applicable to all New A-3495-24 2 Jersey law enforcement officers. Pursuant to both, all sworn law enforcement officers must submit to drug testing when randomly selected. Should an officer test positive for an illegal substance, the AG Guidelines and MCSO Policy and Procedures provide: 1. That officer shall be immediately suspended from all duties. 2. The officer shall be administratively charged and, upon final disciplinary action, the officer shall be terminated from employment as a law enforcement officer. 3. The officer shall be reported by his or her employer to Central Drug Registry maintained by the Division of State Police. 4. The officer shall be permanently barred from future law enforcement employment in New Jersey. [Attorney General Guidelines § VIII(C) (2023) [hereinafter AG Guidelines]; Middlesex County Sheriff's Office Manual: Policy and Procedure § VII(C) (2021).] Immediately prior to the random drug test, S.M. completed as required the MCSO standard written "Drug Testing" medication disclosure form that directed, "[I]t is essential that you inform us of all medications you have taken in the last fourteen (14) days," and required the officer to list both prescription and non-prescription medications and supplements along with the "[d]ate [l]ast A-3495-24 3 [t]aken." S.M. listed several medications but failed to disclose he ingested alprazolam. He signed, dated, and submitted the form. He also completed a written acknowledgment confirming his understanding a positive test result would result in discipline that might include termination of employment. Internal Affairs then interviewed S.M. who admitted he took a half-tablet from his wife's Xanax prescription the night before the test. He explained he was suffering from insomnia, had run out of his own prescribed sleep aid, and took the drug as he had been unable to sleep for five days. He admitted he did not disclose taking the medication on the form but explained he did not remember the name of the drug and his attempts to call his wife and his doctor were unsuccessful. Thus, S.M. claimed he refrained from disclosing because he was uncertain "what would be the outcome if [he] put down the wrong name or guessed something and . . . it was the wrong thing." He stated this was "the theory in [his] head" in omitting the information. By preliminary notice of disciplinary action, S.M. was suspended effective September 7, 2023, and charged with the following administrative violations: 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) failing a random drug test for a banned substance without a valid prescription, AG Guidelines, § VII(B); A-3495-24 4 4) failure to list the banned substance on the medication form, AG Guidelines, § IV(A)(4), and 5) numerous violations of the MCSO Rules and Regulations, Middlesex County Sheriff's Office Manual: Rules and Regulations (2014), including: § 3.4.6 (report writing), § 3.12.5 (truthfulness), § 3.1.1 (standard of conduct), and § 3.1.7 (neglect of duty). After a departmental hearing on October 24, 2023, a final notice of disciplinary action was issued on December 22, 2023, removing him from employment at the MCSO effective the same day. S.M. appealed his removal to the Office of Administrative Law, and a hearing was scheduled before an ALJ. S.M. submitted a certification dated November 4, 2024, admitting he "took [one-half] a tablet of alprazolam, a medication prescribed to [his] wife." He also provided two expert reports, one from a psychiatrist who evaluated S.M., and the other from a forensic toxicologist. The toxicologist reviewed the test results and opined they were consistent with the amount of the drug S.M. reported taking. The psychiatrist examined S.M., reviewed the matter and S.M.'s history, and opined S.M.'s conduct arose from "a momentary lapse in his otherwise intact judgment," and "[t]he entire episode can best be explained by an insomnia- associated lapse in judgment." S.M.'s history of insomnia was documented, and the psychiatrist considered this condition, as well as family stressors present A-3495-24 5 around the time of the incident, as underpinning the conduct. The psychiatrist explained, "Rather than to characterize his behavior in psychiatric terms — because I don't regard him as mentally ill—I will conclude he [is] an ordinary person acting in an understandable manner during a difficult time." The psychiatrist further posited the incident "has no implications for the future, should [S.M.] be reinstated." S.M. also presented his prior employment history, including his disciplinary history. This included a one-day suspension in 2018 for insubordination based on unauthorized phone use, and a five-day suspension in 2023 for several violations when he arrived late to work, was not present at his assigned post, and misrepresented his working hours on his timesheet. S.M. provided a letter of recognition for his service during a flash flood in New Brunswick. MCSO moved pre-hearing for summary decision pursuant to N.J.A.C. 1:1- 12.5, asserting there were no disputed material facts regarding the charges and argued discipline should be decided as a matter of law because removal was the appropriate penalty. In a written decision dated June 9, 2025, the ALJ granted summary decision regarding the violations, finding they were "undisputed." Specifically, the ALJ recognized S.M. admitted "he tested positive, took A-3495-24 6 medication that was not his, and did not report that he ingested the medication." The ALJ thus found: [S.M.] does not argue that the charges in the [final notice of disciplinary action] are inappropriate or unsubstantiated. He does not dispute that he took his wife's medication; he did not report it on the Drug Testing Medical Information form; and he tested positive for benzodiazepines during a work-mandated random drug test. Accordingly, I CONCLUDE that there is not a genuine issue of material fact with respect to the charges against appellant and that summary decision is appropriate with respect to this issue. [(footnote omitted)]. The ALJ denied summary decision as to the penalty, however, citing S.M.'s "presentation of evidence that could be considered mitigating and the obligation to view the evidence in the light most favorable to the non -moving party." Contrasting MCSO's claim that termination was the appropriate remedy as a matter of law with S.M.'s assertion that his mitigating circumstances warrant a lesser penalty as a matter of progressive discipline, the ALJ ordered a hearing as to the penalty only and provided that S.M. could present mitigating evidence. Days later, MCSO moved for interlocutory review by the Commission of the ALJ's order denying summary decision regarding the penalty. S.M. did not move for review of the portion of the ALJ's order granting summary decision as to the violations. Instead, he argued interlocutory review was not appropriate, A-3495-24 7 the Commission is never bound by the AG Guidelines mandating termination and the ALJ properly granted a hearing as to penalty, and due process requires a hearing to allow him to challenge removal and present mitigating evidence, particularly considering S.M.'s positive history and the circumstances surrounding his "lapse in judgment." The Commission granted interlocutory review de novo and allowed the parties to present supplemental submissions. In a nine-page written final decision and order issued by the Commission's Chairperson, the Commission reversed the ALJ's denial of summary decision as to penalty. The Commission granted summary decision in favor of MCSO "on the penalty and f[ound] that its action in removing . . . [S.M.] was justified," denying S.M.'s appeal and entering "the final administrative action in this matter." In the written decision, the Chairperson detailed the "undisputed" facts found by the ALJ supporting summary decision as to the violations, recounting S.M.'s admissions concerning ingesting the alprazolam and failing to disclose ingesting the drug on the mandatory reporting form. The Chairperson recognized S.M.'s explanation that he did not disclose the medication as he could not recall its name and "was concerned about the consequences of listing the A-3495-24 8 wrong medication," and cited S.M.'s expert reports as well as S.M.'s professional and disciplinary history. In addressing whether the record warranted summary decision as to termination, the Chairperson clarified the Commission's position that it is not bound by the AG Guidelines mandating removal for positive drug testing.2 Instead, the Commission emphasized, "[T]he AG Guidelines, while instructive and generally applicable, cannot be used to completely usurp the Commission's exclusive jurisdiction over the penalty." Next, recognizing the de novo nature of the Commission's review, as well as the correct standard for summary decision, the Chairperson found S.M. was afforded the opportunity, both before the ALJ and again before the Commission, to "fully present" his mitigation information and arguments against removal. The Chairperson specifically noted S.M.'s experts' opinions indicating S.M. took only half a tablet of his wife's medication in a "'momentary lapse in his otherwise 2 Before the ALJ, the Commission, and in their merits briefs on appeal, the parties referenced several unreported Appellate Division decisions, suggesting a split over the dispositive weight to be ascribed to the AG Disciplinary Guidelines. However, neither party challenges on appeal the Commission's position that the AG Guidelines, though pertinent, do not bind the Commission or mandate S.M. 's termination as a matter of law. A-3495-24 9 intact judgment' that was caused by insomnia and had 'no implications for the future.'" Taking into account that information, the Chairperson nonetheless found S.M.'s arguments unpersuasive, determining "removal is the appropriate penalty, notwithstanding" the mitigating information. Specifically recognizing neither expert provided any explanation for S.M.'s failing to disclose that lapse when required, the Chairperson concluded the non-disclosure, coupled with the ingestion of the drug, constituted conduct that was "egregious and inimical to what the public expects from a law enforcement officer, who is held to a higher standard," and as a result, "removal is neither disproportionate nor shocking to the conscience." Thus, the Commission's final administrative action ordered removal. S.M. now appeals, arguing the Commission's final decision ordering his removal must be reversed because: material facts remained in dispute regarding mitigation of the penalty; the Commission functionally abdicated its authority by applying the AG Guidelines as dispositive of discipline; due process mandated a hearing to address progressive discipline and the Commission erred in finding removal did not "shock the conscience" on less than a full record; "the A-3495-24 10 charge of 'failure to report medication' involve[d] disputed material facts";3 and "procedural irregularities reinforce[d] the need to vacate and remand for a penalty hearing." 4 II. It is well-settled our review of agency decisions is limited, and in our scrutiny, we apply an "arbitrary and capricious standard." Zimmerman v. Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019) (citing In re Stallworth, 208 N.J. 182, 194 (2011)). In particular, our courts generally have applied deference when reviewing determinations of the Commission, or of its predecessor agencies that administered the civil service laws. See, e.g., 3 This argument directed at the substantive finding of a violation was not raised before the ALJ, the Commission, or in S.M.'s Notice of Appeal (NOA) or Case Information Statement (CIS). To the contrary, the record before us satisfies us S.M. did not challenge the substantive charges or the ALJ's summary decision finding the uncontested facts supported the violations. Accordingly, we decline to consider the belated challenge. See Zaman v. Felton, 219 N.J. 199, 227 (2014) ("declin[ing] to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available ") (quoting State v. Robinson, 200 N.J. 1, 20 (2009)); Park Crest Cleaners, LLC v. A Plus Cleaners & Alterations Corp., 458 N.J. Super. 465, 472 (App. Div. 2019) ("A party's failure to seek review of cognizable trial court orders or determinations — by identifying them in the notice of appeal—is largely fatal."). 4 Although S.M. seems to challenge the sufficiency of the intermediate review procedure, an issue not identified in his NOA or CIS, his merits brief concedes the Commission's issuing the decision between meetings under N.J.A.C. 4A:1- 3.2(b)(3) was "permissible." A-3495-24 11 Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562, 578 (1963); see also Stallworth, 208 N.J. at 194-95. Pertinent here, "appellate review of an agency's choice of sanction is limited." In re Young, 471 N.J. Super. 169, 178 (App. Div. 2022) (quoting In re License Issued to Zahl, 186 N.J. 341, 353 (2006)). Therefore, "[c]ourts 'will modify a sanction only when necessary to bring the agency's action into conformity with its delegated authority,' such as, when 'the agency has mistakenly exercised its discretion or misperceived its own statutory authority.'" Ibid. (quoting Zahl, 186 N.J. at 353-54). "In light of the deference owed to such determinations, when reviewing administrative sanctions, 'the test . . . is whether such punishment is 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. 19, 28-29 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)). Indeed, the Commission has the authority to "render the final administrative decision on appeals concerning permanent career service employees" on matters such as removal, suspension, or discipline. N.J.S.A. 11A:2-6. "The Commission is empowered to review de novo the disciplinary charges before it, N.J.S.A. 11A:2-6, and may 'disapprove the penalty imposed by the appointing authority.'" In re Ambroise, 258 N.J. 180, 200 (2024) (quoting A-3495-24 12 Henry v. Rahway State Prison, 81 N.J. 571, 575 (1980)). Further, "[t]he Commission may adopt, reject, or modify the recommended report and decision of an administrative law judge." N.J.A.C. 4A:2-2.9(c). Summary decision is appropriate when "the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). We thus review summary decisions by the Commission as we do those for summary judgment in our courts. See Nat'l Transfer, Inc. v. N.J. Dep't of Env't Prot., 347 N.J. Super. 401, 408 (App. Div. 2002); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (courts must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party"). III. Against the backdrop of these well-settled intersecting principles, we are satisfied the Commission did not err in granting summary decision and ordering S.M.'s removal. The Commission properly concluded there were no disputed issues of material fact regarding discipline, as it deemed the magnitude of the A-3495-24 13 combined infractions—the illegal drug use and S.M.'s subsequent non- disclosure on an official form—amounted to egregious conduct warranting termination from employment. First, a review of the comprehensive final decision confirms the Commission did not abdicate its role based on the AG Guidelines or refuse to consider S.M.'s mitigating information. To the contrary, the Chairperson expressly clarified the Commission did not apply the AG Guidelines with dispositive force and instead exercised its discretion in considering the mitigating information provided. There is no error in the Commission's considering in its disciplinary calculus the AG Guidelines, MCSO's policies, and S.M.'s awareness of both when he committed the violations. The AG Guidelines and Middlesex County's policies and procedures made abundantly clear the severity of any violation and the potential consequences of such conduct, including termination from employment. Next, the Commission's decision reveals it correctly assessed the facts in the light most favorable to S.M. and nevertheless determined the surrounding circumstances proffered by S.M., including his expert's opinions explaining his actions, did not mitigate the offending conduct to a degree warranting discipline short of removal. Here, the Commission found S.M.'s drug use in the A-3495-24 14 surrounding circumstances S.M. presented, taken together with the serious decision to omit that information on the medical form, constituted conduct "inimical" to the standards expected of law enforcement officers. Contrary to S.M.'s arguments, the Commission accepted he suffered from insomnia and took his wife's prescription to assist after being unable to sleep for days. It also expressly acknowledged the psychiatrist's opinion this was a lapse in judgment. It further noted S.M.'s explanation for non-disclosure of this information, specifically his claiming he did not disclose because he did not know the name of the medication, could not reach his wife or doctor, and feared discipline if he supplied incorrect information. However, the Commission found the explanation of no moment, concluding this did not excuse or justify nondisclosure that he had taken an unprescribed drug the night before the drug test. We defer to that determination, which was rooted in the record. S.M.'s admission he feared the consequences should he provide an incorrect name for the drug suggested he intentionally withheld the information for fear of reprisal, reflecting on his veracity. The Commission deemed S.M.'s excuse unpersuasive in mitigating the outcome, even accepting it as true. Thus, it properly determined no material issues of fact existed requiring a hearing. A-3495-24 15  S.M. also contends the Commission failed to analyze the appropriate penalty through the lens of progressive discipline, which considers violations in the context of a civil service employee's past discipline to determine the appropriate consequences. See Ambroise, 258 N.J. at 200-01 (citing West New York v. Bock, 38 N.J. 500, 523-24 (1962)). However, "progressive discipline is not a fixed and immutable rule to be followed without question," and, in some cases, the action of the employee will be so severe removal is still appropriate even when considering mitigating factors. Id. at 201 (quoting Stallworth, 208 N.J. at 196). The Commission determined the conduct, assessed in the context set forth by S.M.'s mitigating information, met that degree of severity. Again, the Commission is the final arbiter on disciplinary violations, and on de novo review on appeal, "may 'disapprove the penalty imposed by the appointing authority.'" Ambroise, 258 N.J. at 200 (quoting Henry, 81 N.J. at 575). Here, the Commission, unbounded by the ALJ's findings and empowered to "adopt, reject, or modify the recommended report and decision," N.J.A.C. 4A:2-2.9(c), viewed the summary decision record de novo, accepted the truth of S.M.'s asserted facts, and found no dispute as to any material fact that would warrant a hearing. It reasonably determined that the mitigating evidence could not, even viewed in its most favorable light, justify lesser discipline and granted A-3495-24 16 summary decision for MCSO, reversing the ALJ's decision and entering a final determination of removal. We will not disturb the Commission's summary decision as to discipline on this record as it is not "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." In re Carter, 191 N.J. 474, 484 (2007) (quoting Polk, 90 N.J. at 578). We accordingly perceive no deprivation of due process as the Commission's summary disposition in the absence of a hearing was sound. "Administrative hearings in contested cases must 'operate fairly and conform with due process principles.'" In re Kallen, 92 N.J. 14, 25 (1983) (quoting Laba v. Bd. of Educ., 23 N.J. 364, 382 (1957)). However, such hearings "may conform to procedural due process standards that are less restrictive than those imposed in court proceedings." Id. at 26. "As long as principles of basic fairness are observed and adequate procedural protections afforded, the requirements of administrative due process have been met." Kelly v. Sterr, 62 N.J. 105, 107 (1973); see also In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 466-67 (2006) (recognizing in State actions, "due process is a flexible and fact-sensitive concept," and "a function of what reason and justice require under the circumstances"). A-3495-24 17  Importantly here, as the Commission noted, S.M. was given the opportunity to present evidence to the ALJ and the Commission to consider in determining whether S.M.'s penalty should be mitigated. For the reasons already discussed, summary disposition was appropriate and no greater process was due. Finally, to the extent we have not addressed them, any remaining arguments raised by S.M. lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3495-24 18