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IN THE MATTER OF HENRY JACKSON
 
Case:
A-6927-94T5
 
Location:
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
 
Date:
October 11, 1996, Decided
 
Attorneys:
Fox and Fox Counsels for appellant Henry Jackson (Dennis J. Alessi of Counsel and Matthew M. Collins on the brief). Frost Rhodes & Devit Counsels for respondent City of Plainfield (Catherine M. Elston on the brief). Peter Verniero Counsel General Counsel for the Merit System Board (Elizabeth M. Laufer Deputy Counsel General on the statement).
 
Court:
Judges Landau Wallace and Kimmelman.
 
Author:
The Hon. Justice Landau
 

Henry Jackson was employed since 1981 as a firefighter by the City of Plainfield. In 1990 he was suspended after police discovered him in the home of a drug dealer while they were executing a search warrant. Johnson admitted to smoking marijuana with the dealer and to having purchased and used cocaine. He tested positive for cocaine even after a Preliminary Notice of Disciplinary Action had been served upon him.

Following his completion of a one month rehabilitation program Jackson's physician said he was able to return to work Plainfield's physician concurred. A departmental hearing was held and Jackson was allowed to return to work subject to compliance with certain conditions. He signed a "Letter of Agreement" acknowledging that his employment was "contingent upon my abstaining from illegal drugs or abuse of any chemical substance both on and off duty". Jackson further agreed to submit to drug testing at any time and that if he were found to be using drugs he would "forfeit my position and all benefits relating thereto". The conditions of reinstatement were consistent with the fire department's substance-abuse policy contained in Article XVII of the collective bargaining agreement with Jackson's union.

On August 23 1993 Jackson tested positive for cocaine in a random drug test and was again suspended pursuant to a Preliminary Notice of Disciplinary Action. He entered a second drug rehabilitation program between October 1 and October 15 1993 and was released with a physician's letter which opined that his prognosis for recovery was excellent.

Plainfield declined to permit him to return to duties as a firefighter. A departmental hearing was held in November and Jackson was terminated in December 1993. He appealed to the Merit System Board. Facts and exhibits were stipulated by the parties on cross-motions for summary decision before an Administrative Law Court who granted Plainfield's motion and denied the Jackson motion in an initial decision dated May 19 1995.

The ALJ deemed Jackson a handicapped person under the Law Against Discrimination ("LAD") N.J.S.A. 10:5-1 to 10:5-42 but found the City could remove him if it could no longer reasonably accommodate his handicap i.e. drug addiction. Recognizing that our decision in In re Cahill 245 N.J. Super. 397 401 (App. Div. 1991) encourages an employer "where feasible" to give an employee at least one chance at rehabilitation prior to termination the ALJ noted that Jackson was given that opportunity in 1990 and that the City re-employed him after he completed an in-patient program. Further the ALJ concluded that the City had established that employment of a firefighter who is under the influence of a controlled dangerous substance was a hazard to both the fire department and the general public. The ALJ also determined that:

Pursuant to SEC. 7:1-4 of the collective bar-gaining agreement appellant executed a letter of agreement on August 20 1990 wherein he acknowledged that his continued employment is and remains contingent upon his abstaining from illegal drugs or abuse of any chemical substance both on and off duty. He further agreed to enroll and actively participate in a drug rehabilitation program. Appellant further agreed that he would forfeit his position and all benefits relating thereto if he were to engage in any further substance abuse or refuse to submit to drug testing.

that:

...the collective bargaining agreement is consistent with the LAD and thus it controls. The collective bargaining agreement provides a reasonable accommodation because it allows for rehabilitation prior to termination. However it does not provide or specify that a firefighter is entitled to two attempts at rehabilitation...

and that:

[a] firefighter operates in an inherently dangerous environment. Consequently a firefighter must be alert agile and mentally and physically fit at all times. The danger involved in firefighting poses substantial risks not only to the firefighter but also to his fellow firefighters and the community at large. Thus there is no place in a fire department for a substance abuser or one chemically dependent on drugs that alters a firefighter's mental state and impairs physical agility. Appellant's handicap was reasonably accommodated in 1990.

Based on those findings the ALJ decision recommended affirmance of Jackson's removal effective August 27 1993. By order issued on July 27 1995 the Merit System Board adopted this recommendation as a final determination. Jackson appealed and we affirm substantially for the reasons stated by the ALJ in her initial decision. *fn1

The decision is consistent with the holding in Cahill that negligent or improper performance of the duties of a firefighter can result in serious harm to persons and property and that when considered against the background of a drug habituation if that is deemed a handicap the nature of a firefighter's duties satisfies the employer's burden under N.J.S.A. 10:5-4.1 to prove with reasonable certainty that such handicap would probably cause injury to himself or others. See Jansen v. Food Circus Supermarkets 110 N.J. 363 383 (1988). We said in Cahill:

The employer is not required to assume or hope that the employee will limit alcohol and other drug consumption to off-duty hours or that the effects of drugs will be dissipated by the time the work day begins. Moreover a firefighter is subject to being called to duty when needed anytime of the day or night. N.J.S.A. 40A:14-49 to -51. A firefighter under the influence of drugs cannot do the job. [Cahill supra 245 N.J. Super. at 401.]

In short there is a point where the public interest in rehabilitation must yield to its interest in protecting life limb and property. The reasonableness of accommodation required by N.J.A.C. 13:13-2.5 is a function of the nature of the employment. With firefighters much as with commercial airline pilots or brain surgeons drug impairment increases exponentially the risks to others and must correspondingly affect the extent of an employer's accommodation efforts which may be reasonable in the circumstances. See also N.J.A.C. 13:13-2.8(a)(2)(refusal to select a handicapped person for employment is lawful where employment in a particular position would be hazardous to that individual or to others).

We see this not as a question of how many attempts at rehabilitation must be granted to a firefighter but whether Plainfield complied with and enforced he collective bargaining agreement and whether such compliance represented a reasonable accommodation to Jackson's condition. Our review of the record satisfies us that these questions were properly answered in the affirmative.

After briefs were filed in this matter Plainfield moved to supplement the record with undisputed evidence that Jackson was arrested on April 3 1996 for possession use and being under the influence of a controlled dangerous substance. This motion is denied. See McKennon v. Nashville Banner Publishing Co. 513 U.S. __ 115 S. Ct. 879 130 L.Ed.2d 852 (1995). Reasonableness of a 1993 action cannot be supported by proof of a 1996 event. The arrest is not a factor in this decision.

Affirmed.

 
Notes:

*fn1 There has been no cross-appeal questioning whether dependency upon controlled dangerous substances and their use and possession must necessarily be deemed a handicap as a matter of law in all cases. Accordingly we have not addressed the question. Our affirmance does not therefore signal agreement with the dictum in Cahill which in reliance upon an alcoholism case Clowes v. Terminex Int'l. 109 N.J. 575 590-95 (1988) stated that addiction habituation or dependency resulting from use of any drug renders a person handicapped under the LAD. Cahill supra 245 N.J. Super. at 400. We note particularly the concurring opinion in A.B.C. v. XYZ Corp. 282 N.J. Super. 494 508 (App. Div. 1995)(Petrella concurring) in which it was questioned whether the statutory definition of "handicap" should be interpreted to "[afford] a remedy under the LAD where the discrimination claim is based upon conduct by an individual claimant which would otherwise constitute a crime whether or not there is a prosecution and conviction." See N.J.S.A. 2C:35-10.