Submitted by New Jersey Civil Lawyer, Jeffrey Hark
LABOR AND EMPLOYMENT
25-2-8778 Burgess v. Cumberland County Dep’t of Corr., App. Div. (per curiam) (8 pp.) In this appeal, the issue was whether evidence arising out of an arrest, charge and prosecution prohibited by the Overdose Prevention Act (OPA) can be admitted in civil disciplinary proceedings against a public employee. On May 15, 2013, officers of the Vineland Police Department responded to a 9-1-1 call seeking medical assistance for plaintiff, who had overdosed on heroin. Plaintiff was charged with being under the influence of a controlled dangerous substance. This charge was dismissed in light of the newly enacted OPA, which immunizes persons from criminal liability who seek medical assistance for a drug overdose. Plaintiff was employed as a corrections officer by defendant Cumberland County Department of Corrections, which initiated disciplinary proceedings concerning the overdose incident, charging plaintiff with conduct unbecoming a public employee. Following a departmental hearing, the disciplinary charge was upheld, with plaintiff receiving a penalty of indefinite suspension. Plaintiff filed a verified complaint and order to show cause, seeking an injunction barring admission of evidence of his overdose incident during the OAL proceedings, which the court denied. Plaintiff’s complaint was dismissed. Plaintiff appealed, arguing that the trial court erred in concluding that the OPA does not preclude evidence of his drug overdose during his employment disciplinary proceedings. The appellate panel found that the plain language of the OPA is specific and clear as to the scope of protection afforded to those who seek medical assistance for a drug overdose. Although the law expressly precludes arrests, charges, prosecutions or convictions for seeking medical assistance, it does not afford immunity from civil disciplinary proceedings. The panel rejected plaintiff’s argument that his disciplinary proceedings should be dismissed because subjecting public employees to disciplinary proceedings for seeking medical assistance for a CDS overdose would undermine the legislature’s intent when enacting the OPA. The legislature did not state that it wanted to insulate public employees from civil discipline for drug use. The OPA does not immunize public employees who seek medical assistance in the event of a drug overdose from being subject to civil disciplinary proceedings. However, because defendant’s notice of disciplinary action referenced that defendant was “arrested,” which was clearly prohibited by the OPA, the trial court’s decision was modified to provide that the fact of plaintiff’s arrest, charge and criminal prosecution shall be excluded during the disciplinary proceedings. The decision dismissing plaintiff’s complaint was affirmed as modified.