Drug Test Runs Into Hearsay Problems

Michael Brown was employed as a corrections officer by Monmouth County, New Jersey for 17 years. On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use and the County announced its intention to terminate Brown, a hearing was held before an administrative law judge.

Two witnesses testified on behalf of the County at the hearing. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor did they establish a chain of custody from the time the sample was taken to the time it was reportedly tested at the laboratory in Kansas. Eventually, the County’s Merit System Board upheld Brown’s termination.

An appeals court reversed the Board’s decision, finding a serious deficiency in the evidence against Brown. The Court observed that “our difficulty in reviewing this record is the lack of competent evidence. There were no witnesses who testified to first-hand knowledge of the procedures employed, and no witnesses who could verify that any of the essential elements of a fair and reliable testing process were followed. The drug testing documents are entirely hearsay and there was no competent testimony from anyone with first-hand knowledge as to the preparation of those records or even to ascertain that they were made in the regular course of business.

“In short, the County’s entire case was based on incompetent, inadmissible evidence. Even under the relaxed evidentiary standard of an administrative hearing, the testimony and the documentary evidence are so substantially lacking in reliability that they cannot support the County’s case against Brown.

“Ordinarily, we would remand the matter for further testimony. Both witnesses testified, however, that they did not know of anyone with personal knowledge of the testing. To remand the matter would be a waste of resources for all concerned.”

The Court entered an order reversing Brown’s termination.

In re Brown, 2009 WL 2045235 (N.J. Super. A.D. 2009).

This article appears in the September 2009 issue