In June, the Fulop administration suffered a stinging defeat when an administrative law judge ordered the reinstatement of a Jersey City police officer who had tested positive for the presence of cannabis. Now, two new rulings this month have affirmed that judge’s reasoning and may sound the death knell for a policy that has drawn bitter criticism from police officers and their union.
The cases, involving two officers — Norhan Mansour and Omar Polanco — presented the first tests of an administration policy, announced in April of last year, that any officer found to be using cannabis on or off the job would be fired. “New Jersey’s policies allowing law enforcement to smoke is an outlier nationally and one that will put our officers + community at risk with impaired judgment” explained Mayor Fulop in a tweet.
The administration wasted little time enforcing its controversial policy. In September of 2022, a year and a half after New Jersey’s “CREAMM” law legalizing the personal use of cannabis went into effect, it fired Mansour after she tested positive for the presence of cannabis during a random urinalysis.
In so doing, the administration brazenly defied a directive from the New Jersey Attorney General that such firings would be illegal.
In June, police union attorney Peter Paris likened the city’s policy to “terminating police officers because they had a beer off duty.” But, said Paris, “it’s worse because there is no constitutional right to drink beer, while there is a constitutional right in New Jersey to consume cannabis.”
In court proceedings, the city has argued that federal law preempts CREAMM’s protections. Because a police officer must carry a gun to perform his or her job, says the city, he or she must apply for a federal gun license and, in so doing, swear that he or she doesn’t use a controlled substance.
It’s an argument Administrative Law Judge Kimberly A. Moss emphatically rejected in her June decision reinstating Mansour. “Municipal police officers are exempt from the requirement to have a firearms permit to carry a firearm in any place in the state, provided they have had firearms training in the Police Academy and qualify each year.” Thus, she reasoned, there is no conflict with federal law.
CREAMM, she wrote, “precludes employers from terminating their employees solely due to the presence of cannabinoid metabolites in the employee’s system.”
If the city was hoping that Moss’s decision would be overturned, its hopes were dashed when on August 2, the Civil Service Commission affirmed Moss’s decision and ordered Mansour reinstated with backpay. The city was also ordered to pay Mansour’s attorneys fees.
Then came last week’s decision in the case of Officer Omar Polanco. The case was virtually identical to Mansour’s. In a random urinalysis in September of 2022, he tested positive for the presence of cannabis. Like Mansour, he was terminated and sought reinstatement.
On Friday, Administrative Law Judge Joann Lasala Candido ordered Polanco reinstated. “I agree with the Mansour analysis by ALJ Moss and adopted by the Civil Service Commission that the federal law cited by the respondent in its brief does not preempt the CREAMM Act as it applies to police officers in New Jersey.”
For Polanco, the termination and subsequent battle to regain his job has been particularly difficult. Only months before his cannabis imbroglio, Polanco shot and killed a man on Communipaw Avenue who threatened a woman with a gun. It was an emotionally wrenching experience, says his attorney, Michael Rubas.
Now, after three decisions striking down its policy, and the city indicating that it intends to appeal the decisions, Rubas thinks it’s time the city throw in the towel. “It’s ridiculous…Jersey City still won’t let it go, they’re still using taxpayer money, every other department in the state isn’t making an issue of it. What are we doing here?”
Jersey City’s spokesperson did not immediately respond to a request for comment.
In the interim, the Attorney General issued new guidelines banning cannabis testing for law enforcement except where there is “reasonable suspicion” that the officer is high on the job. So far, it appears to lawyers that Jersey City is following the new rules. Whether it will continue to remains to be seen.