SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3150-18T3

IN THE MATTER OF

WILLIAM SHORTER, NEW 

JERSEY DEPARTMENT OF

CORRECTIONS.

___________________________

Argued March 9, 2020 – Decided May 4, 2020

Before Judges Sabatino and Natali.

On appeal from the New Jersey Civil Service 

Commission, Docket Nos. 2018-1384 and 2019-0081.

Christopher J. Hamner, Deputy Attorney General, 

argued the cause for appellant New Jersey Department 

of Corrections (Gurbir S. Grewal, Attorney General, 

attorney; Donna S. Arons, Assistant Attorney General, 

of counsel; Christopher J. Hamner, on the briefs). 

Michael P. DeRose argued the cause for respondent 

William Shorter (Crivelli & Barbati, LLC, attorneys; 

Donald C. Barbati and Michael P. DeRose, on the 

brief). 

Benjamin H. Zieman argued the cause for respondent 

New Jersey Civil Service Commission (Ruprecht Hart 

Ricciardulli & Sherman, LLP, attorneys; Benjamin H. 

Zieman, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-3150-18T3

PER CURIAM

In this civil service matter, the New Jersey Department of Corrections 

(DOC) appeals from the June 22, 2018 determination of the Civil Service 

Commission (CSC) that reduced the penalty imposed upon respondent William 

Shorter, a Correction Sergeant at South Woods State Prison, after his random 

drug screen tested positive for a metabolite of tetrahydrocannabinol (THC)1, the

psychoactive ingredient in cannabis. After Shorter appealed, the CSC affirmed

the disciplinary findings but modified the penalty issued by the Administrative 

Law Judge (ALJ) from dismissal to a 120-day suspension. The CSC also 

awarded Shorter back pay, benefits and seniority after his suspension and until 

his reinstatement. The DOC also appeals the CSC's February 8, 2019 decision 

denying its motion for reconsideration and for a stay.

 

1

 When Shorter tested positive for THC, it was classified as a Schedule I 

controlled substance in New Jersey. N.J.S.A. 24:21-5(e)(17) (2017); see also

21 U.S.C. § 812(c)(c)(17) (2017) (classifying THC, without exception, as a 

Schedule I substance under the federal Controlled Substances Act). The 

classification of THC has since been amended, effective August 9, 2019, to 

exclude "hemp or a hemp product cultivated, handled, processed, transported, 

or sold pursuant to the New Jersey Hemp Farming Act." N.J.S.A. 24:21-5(e)(17) 

(2020); see also 21 U.S.C. § 812 (c)(c)(17) (2020) (defining THC at the federal 

level to exclude hemp with a THC concentration of 0.3 percent or less).
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A-3150-18T3

I. 

At the time the disciplinary charges were filed, Shorter was a seventeenyear veteran of the DOC, who had earned various commendations, including 

working during an emergency, assisting in saving the life of an inmate who had 

been stabbed, and "gathering information [related to] a major drug bust." During 

his long tenure with the DOC, he maintained a largely unblemished disciplinary 

record with a single recorded disciplinary incident for being late to work in 

December 2003 due to a power outage which prevented his alarm from 

functioning. 

When he first became employed with the DOC, Shorter acknowledged 

receipt of several departmental policies, including the DOC's Law Enforcement 

Personnel Rules and Regulations, which prohibited employees from using any 

illegal drug or controlled dangerous substance, either on or off duty. He also 

received various Human Resources Bulletins, which included information on the 

DOC's random urine drug screening procedures and the penalties for employees 

who test positive. 
4

A-3150-18T3

On September 7, 2017, Shorter purchased a bottle of "CBD oil"

2

from 

Relievus Pain Management, an interventional pain management practice, where 

Shorter was being treated by Young J. Lee, M.D., and Nurse Practitioner Russell 

M. Little for pain resulting from "degenerative arthritis in his spine" and 

herniated discs. During his treatment, Shorter underwent multiple injections, 

including nerve blocks. As these prior efforts to relieve his pain proved 

unsuccessful, and because Shorter "wanted to get better without the use of 

narcotics," Dr. Lee recommended Shorter use CBD oil, represented to him as a 

legal product which he claimed would help with the inflammation in his spine. 

Mindful of the DOC's random drug screening policy, Shorter asked Little 

whether the CBD oil could potentially come up as positive on a drug test. Little 

told Shorter the CBD oil "will not show up as a positive for THC" on the drug 

test, relying on information he had been told by the "head doctors" at Relievus. 

 

2 CBD, or cannabidiol, is "one of the 'unique molecules found in the Cannabis

sativa plant." Horn v. Med. Marijuana, Inc., 383 F. Supp. 3d 114, 119 

(W.D.N.Y. 2019) (internal citation omitted). The Cannabis sativa plant is the 

plant from which marijuana and hemp are derived. Ibid. The difference between 

the two is that "drug-use cannabis is produced from the flowers and leaves of 

certain strains of the plant, while industrial-use [hemp] is typically produced 

from the stalks and seeds of other strains of the plant." Ibid. This leads to 

differences in the concentration of THC in each variety.
5

A-3150-18T3

Shorter did not visit the product's description page on the Relievus website, and 

therefore did not see that the CBD oil contained "0.3 percent THC." 

Taking the CBD oil required Shorter to place "[f]ifteen droplets 

underneath [his] tongue twice a day, once in the morning and once at night." 

Shorter began taking the CBD oil on the morning of September 8, 2017 and 

continued to do so through the morning of September 12, 2017. 

That day, Shorter was directed to the report to the Special Investigations 

Division, where he was informed that he had been selected for a random urine 

screen. Prior to providing his urine sample, Shorter signed a form 

acknowledging that a positive test result would lead to his dismissal and 

permanent bar from serving as a law enforcement officer in New Jersey. He 

also filled out a form which required him to list all prescription and nonprescription medications he had taken in the past thirty days. Shorter listed 

several medications but claims that he forgot to list the CBD oil he began taking 

four days earlier. 

The State lab performed two tests on Shorter's urine sample, which 

detected twenty-three nanograms (ng) per milliliter (mL) of a THC metabolite. 

The "industry accepted" cut-off level for the THC metabolite and used by the 

State of New Jersey for testing purposes is fifteen nanograms ng/mL, which is 
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A-3150-18T3

intended to account for "casual, accidental exposure." When a medical review 

officer cross-referenced Shorter's results with his medication form, none of the 

listed medications accounted for the positive test result. After learning of the 

positive result, Shorter provided the DOC with a note on a Relievus prescription 

pad stating that he had been "prescribed CBD oil." Shorter denied ever using 

marijuana or any other illicit substance. In this regard, he had previously

successfully passed ten random drug screens during the course of his career.

Despite his explanation and denial, the DOC served Shorter with a 

Preliminary Notice of Disciplinary Action seeking his removal as a correctional 

officer because he tested positive for THC. Specifically, Shorter was charged 

with: 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) conduct unbecoming a 

public employee, Human Resource Bulletin (HRB) 84-17: C-11; 4) reporting for 

duty while under the influence of intoxicating liquor or drugs, HRB 84-17: C-2; 

5) use, possession, or sale of any controlled dangerous substance, HRB 84-17: 

C-30; 6) violation of a rule, regulation, policy, procedure, order or 

administrative decision, HRB 84-17: E-1. Shorter waived his right to a 

departmental hearing and was subsequently served a Final Notice of 
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A-3150-18T3

Disciplinary Action which terminated his employment with the DOC effective 

November 7, 2017. 

Shorter subsequently appealed his removal to the Office of Administrative 

Law (OAL), and the matter was heard as a contested matter before an ALJ on 

March 23, 26, and 27, 2018. Twelve witnesses testified, including two experts 

in the field of toxicology: Shorter's expert, Gary Lage, Ph.D., and the DOC's 

expert, Robert Havier, Ph.D. In addition, Shorter called several character 

witnesses, including current and former DOC employees, all of whom testified 

that they had never seen or heard Shorter talk about using illegal drugs and that 

he performed his duties in an exemplary fashion.

Dr. Lage concluded to a reasonable degree of scientific certainty that 

Shorter's positive test result was "not consistent with marijuana use" and likely 

caused by the CBD oil he had taken that morning. Dr. Lage noted that the CBD 

product Shorter was taking had been derived from "hemp oil extract," which, 

unlike pure CBD oil, contains small levels of THC. Dr. Lage also testified that 

he visited the Relievus website and determined that the CBD oil Shorter ingested 

was "an extract of hemp," which "by definition . . . would contain small 

quantities of THC." Relying on this information along with the "low levels of 

the marijuana metabolite" detected in his urine, Dr. Lage concluded that 
8

A-3150-18T3

Shorter's positive test result was entirely "consistent with the product that [he] 

was using." Significantly, Dr. Lage also confirmed that the level of THC in the 

hemp-based product Shorter used was "insufficient to produce a psychoactive 

effect." 

Dr. Havier testified that although Shorter's sample yielded a positive test 

result for THC, it was impossible to identify the exact source of the THC 

detected. Dr. Havier conceded, however, that it was a "possibility" that the THC 

metabolites detected in his urine "came from the hemp oil extract." 

On May 8, 2018 the ALJ issued her decision. She found both expert 

witnesses to be credible but found Dr. Havier's testimony to be "more 

persuasive." The ALJ specifically found that Shorter was not credible regarding 

his claim that he "forgot" to list the "CBD oil" on the medication form he 

completed immediately prior to his urine screen. The ALJ based its adverse 

credibility findings on the number of times and unique way the CBD oil was 

ingested by Shorter and the fact that he had listed other medications on the form. 

The ALJ concluded that the DOC had met its burden of proof on all the 

disciplinary charges and found that "the only appropriate penalty" for Shorter's 

positive drug test was termination. The ALJ explained that the DOC's drug 
9

A-3150-18T3

policy "does not call for a range of discipline" and thus "removal is the only 

option for a violation of the drug testing policy." 

Shorter appealed to the CSC. After conducting a review of the record, the 

CSC adopted the ALJ's factual and credibility findings and agreed that the DOC 

had met its burden of proof with respect to all the charges. As noted, the CSC, 

however, modified Shorter's sanction from termination to a 120-calendar-day 

suspension. In doing so, the CSC relied on principles of progressive discipline, 

citing Shorter's long service, nearly untarnished disciplinary record, and the 

indication in the record that the CBD oil "likely" was the cause of his positive 

test result as mitigating factors that warranted a reduced penalty. Specifically, 

the CSC found: 

In the instant matter, [Shorter] had no prior major 

disciplinary actions since his employment began in 

May 2001 and his record indicates that he received one 

minor disciplinary action, a written reprimand in 2003. 

Moreover, given the actual incident in question, the 

Commission does not find removal to be appropriate 

under these circumstances. In this regard, while it is 

clear [Shorter] tested positive for small amounts of 

THC, the record also indicates that CBD oil, for which 

[Shorter] had a valid prescription3likely caused the 

positive result. Further, while [Shorter] should have 

indicated his CBD oil use on his medication form, in 

 

3

 On reconsideration, the CSC acknowledged that the note Shorter received from 

Little was not an actual prescription but indicated that error did not affect its 

decision. 
10 A-3150-18T3

the present case his failure to do so should not result in 

his termination. Accordingly, the [CSC] imposed a 

120-calendar[-]day suspension, which will serve as an 

indication that any future infractions committed by 

[Shorter] will potentially subject him to removal from 

employment. In addition, [Shorter] is advised that he 

must properly and fully complete any future medication 

forms given as part of his drug screening.

After the CSC denied the DOC's motion for reconsideration and a stay of the 

order restoring Shorter to his position, this appeal followed. 

II.

The DOC argues that the CSC's decision to reduce Shorter's disciplinary 

sanction from removal to a 120-day suspension was arbitrary, capricious, and 

unreasonable and therefore must be reversed. The DOC bases its argument on 

its zero-tolerance drug use policy, which mandates removal for those employees 

who test positive for certain illegal substances. It further contends that the CSC 

erred in failing to defer to the DOC's expertise as a law enforcement agency on 

matters pertaining to safety and security. Moreover, the DOC asserts that the 

CSC failed to explain its finding that CBD oil was the likely cause of Shorter's 

failed drug screen. We disagree with all of these arguments.

Our review of a final agency decision is limited, and we "do not ordinarily 

overturn such a decision 'in the absence of a showing that it was arbitrary, 

capricious or unreasonable, or that it lacked fair support in the evidence.'" In re 
11 A-3150-18T3

Carter, 191 N.J. 474, 482 (2007) (citation omitted). Further, we may not 

substitute our judgment for that of the agency's when "substantial credible 

evidence supports [the] agency's conclusion . . . ." Greenwood v. State Police 

Training Ctr., 127 N.J. 500, 513 (1992) (citations omitted). Instead, we "defer 

to an agency's expertise and superior knowledge of a particular field." Ibid.

(citations omitted). "While we must defer to the agency's expertise, we need not 

surrender to it." N.J. Chapter of Nat'l. Ass'n of Indus. and Office Parks v. N.J. 

Dep't of Envt'l Prot., 241 N.J. Super. 145, 165 (App. Div. 1990). An appellate 

court therefore does not automatically accept an agency's interpretation of a 

statute or a regulation, and reviews strictly legal questions de novo. Bowser v. 

Bd. of Trs., Police & Fireman's Ret. Sys., 455 N.J. Super. 165, 170-71 (App. 

Div. 2018). 

We review an agency's disciplinary sanction under a similar deferential 

standard and only modify a sanction "when necessary to bring the agency's 

action into conformity with its delegated authority." In re Herrmann, 192 N.J. 

19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)). A reviewing court 

"has no power to act independently as an administrative tribunal or to substitute 

its judgment for that of the agency." Ibid. (quoting Polk, 90 N.J. at 578). When 

reviewing an agency's disciplinary action, we consider "whether such 
12 A-3150-18T3

punishment is so disproportionate to the offense, in light of all the 

circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 

(quoting Polk, 90 N.J. at 578).

In reviewing the penalty imposed, the CSC has long utilized the concept 

of progressive discipline, which is based on the notion that "past misconduct can 

be a factor in the determination of the appropriate penalty for present 

misconduct." Id. at 29 (citation omitted). The CSC has applied progressive 

discipline in two different ways: to "support the imposition of a more severe 

penalty for a public employee who engages in habitual misconduct," id. at 30,

or to reduce the penalty for "an employee who has a substantial record of 

employment that is largely or totally unblemished by significant disciplinary 

infractions," id. at 33. However, the CSC is not required to consider progressive 

discipline when employee misconduct is "so serious that removal is appropriate 

notwithstanding a largely unblemished prior record." Carter, 191 N.J. at 484.

III.

Here, the DOC points to its statutory mission as a law enforcement agency 

in support of its contention that the CSC was bound to defer to its zero-tolerance 

drug policy. It specifically relies on Bowden v. Bayside State Prison, 268 N.J. 

Super. 301, 306 (App. Div. 1993) for the proposition that courts should defer to 
13 A-3150-18T3

the "expertise of the corrections officials" in managing their institutions. 

Bowden is not controlling as it is factually distinguishable from the 

circumstances here. 

In Bowden, we concluded that the Merit System Board4improperly 

reduced a corrections officer's penalty from removal to a six-month suspension 

where he "played cards with inmates for cigarettes." Id. at 303. We stressed 

that "it is the appraisal of the seriousness of the offense which lies at the heart 

of the matter." Id. at 305. In doing so, we found that the officer's conduct 

"subverted the discipline" at the prison and that "the Board did not adequately 

consider the seriousness of the charges" when it reduced the officer's sanctions. 

Id. at 306. 

Here, as the CSC correctly notes, the DOC has not established that 

Shorter's conduct, based only on his failed drug screen, "subverted the 

discipline" at the prison. Indeed, the DOC provided no evidence that Shorter 

was intoxicated or exhibited any psychoactive symptoms from the THC in the 

CBD oil during the performance of his duties. Shorter also did not engage in 

any illicit activities with or around inmates at the prison, unlike the officer in 

 

4

 Pursuant to P.L. 2008 c. 29, the Merit System Board was renamed the CSC, 

effective June 30, 2008.
14 A-3150-18T3

Bowden. Shorter's conduct (and his prior disciplinary record) clearly did not 

rise to the level of impropriety engaged in by the officer in Bowden, as he only 

began taking the CBD oil after consulting multiple licensed medical 

professionals. 

Moreover, contrary to the DOC's argument that "decisions of the DOC in 

determining what is unacceptable behavior in its staff must be given higher 

deference than other agencies," the New Jersey Supreme Court has noted that

"there is no statutory authority for a law enforcement exception to the normal 

standard of Commission review." Henry v. Rahway State Prison, 81 N.J. 571, 

578 (1980).

In Henry, the Court considered a similar DOC argument regarding two 

corrections officers whose DOC-ordered removals were reduced to suspensions 

after review by the CSC. Id. at 574. Citing safety and security policy reasons, 

the DOC contended that a different standard of review applied to law 

enforcement agencies, which required the CSC to "affirm the penalty imposed 

by an appointing authority absent an abuse of discretion." Id. at 578. The Court 

concluded there was no statutory basis for this special standard of review, 

observing that it was "for the Legislature, not the judiciary, to decide whether 

the civil service law should provide that the Commission must sustain 
15 A-3150-18T3

disciplinary actions of law enforcement or other agencies absent an abuse of 

discretion." Id. at 579; see also Thurber v. City of Burlington, 387 N.J. Super. 

279 (App. Div. 2006) (affirming the Merit System Board's reduction of city 

administrator's sanction of termination to a six-month suspension for reckless 

driving); Belleville v. Coppla, 187 N.J. Super. 147 (App. Div. 1982) (affirming 

the CSC's reduction of municipal employees' sanction of removal to a sixty-day 

suspension for insubordination and neglect of duty but remanding for calculation 

of back pay); N.J. Dep't of Corr. v. Torres, 164 N.J. Super. 421 (App. Div. 1978) 

(affirming the CSC's reduction of corrections officer's sanction of removal to a 

sixty-day suspension for sleeping on duty). 

Here, the DOC essentially renews its argument in Henry, asserting that 

safety and security policy considerations require the CSC to apply the DOC's 

zero-tolerance drug policy regardless of the CSC's authority to conduct a de 

novo review of the imposed penalty. We reject that argument. As noted in 

Henry, there is no statutory basis for such a special standard of review.

In our view, the CSC's decision to downgrade Shorter's penalty cannot 

fairly be characterized as "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. at 28-29 (2007) (quoting Polk, 90 N.J. at 578). Shorter had a nearly 
16 A-3150-18T3

unblemished disciplinary record during his seventeen years of service at the

DOC. The record supports the CSC's observation that, given the small amounts 

of THC detected in his sample, it was entirely possible that Shorter's positive 

result was caused by the CBD oil recommended to him by his pain management 

doctor. 

In this regard, Shorter's expert, Dr. Lage, testified that the "low levels" of 

THC found in Shorter's urine "most likely resulted from his use of CBD oil." 

Dr. Lage based this opinion on the fact that the product Shorter was using "was 

an extract of hemp," which would contain "small quantities of THC," and the 

product's website confirmed this fact. While the DOC's expert, Dr. Havier, 

emphasized that there was no way of conclusively determining what the source 

of the THC was, he also admitted that "the hemp oil could produce it." 

In her findings of fact, the ALJ concluded "both Dr. Havier and Dr. Lage 

testified credibly," although she found Dr. Havier to be "more persuasive." The 

ALJ made no factual finding regarding the cause of the positive test result. 

Because both expert witnesses testified that the positive result could have been 

caused by the CBD oil and the ALJ made no negative credibility determinations 

regarding either of those witnesses, the record supports the CSC's conclusion. 
17 A-3150-18T3

Further, as noted, the CSC was not bound by the DOC's findings in 

determining the appropriate penalty as the DOC's decision was subject to de 

novo review by the CSC. In doing so, the CSC properly considered the 

mitigating circumstances of Shorter's positive drug screen, including the fact 

that he relied on the advice of medical professionals in ingesting CBD oil shortly 

before the test. See Henry, 81 N.J. at 580 (finding that the CSC's reduction of a 

penalty from removal to suspension was warranted where it "properly 

considered . . . mitigating factors"). We are also mindful of the CSC's 

experience in adjudicating a wide span of disciplinary cases at all levels of 

government, including both law enforcement and non-law enforcement 

employees. 

Finally, we reject the DOC's concerns that the CSC's decision, and our 

affirmance, will "permit other custody officers to flout laws governing use of 

controlled substances, leading to a breakdown in employee morale and 

discipline, and jeopardizing the DOC's ability to fulfill its statutory obligations."

We are satisfied that the idiosyncratic facts presented before the ALJ regarding 

Shorter's health condition, his documented course of treatment, and the 

testimony from his healthcare provider and expert are sufficiently unique such 

that we consider any concern that our, or the CSC's, decision will foster wide-
18 A-3150-18T3

spread illicit drug use by correctional officers and adversely affect the DOC's 

statutory mission as unsupported and overstated. 

Moreover, we conclude it is unlikely that, as the DOC argues, Shorter's 

suspension would "lead to a general breakdown in employment discipline" and 

would "sow[] confusion among custody officers as to what 'zero tolerance' 

means . . . ." While we acknowledge that Shorter has not challenged his penalty 

by way of cross-appeal, we note that effective January 1, 2019, the Agriculture 

Improvement Act of 2018, Pub. L. 115-334 removed "[THC] in hemp," or hempderived products containing a THC level of "not more than 0.3 percent" from 

the Controlled Dangerous Substances Act, 21 U.S.C. 812(c). The New Jersey 

Legislature passed a similar statute effective August 9, 2019, the New Jersey 

Hemp Farming Act, P.L. 2019, c. 238, which permitted the manufacture and sale 

of hemp products. It also amended the definition of THC under Schedule I of 

the controlled dangerous substances statute, N.J.S.A. 24:21-5(e)(17), to exclude 

"hemp or a hemp product cultivated, handled, processed, transported, or sold 

pursuant to the New Jersey Hemp Farming Act," effective August 9, 2019. As 

such, we reject the DOC's assertion that Shorter's positive test for a substance 

that it appears he can now obtain legally at the state and federal level sows 

confusion regarding the DOC's disciplinary policies. 
19 A-3150-18T3

Equally important in this regard is the fact that the CSC's sanction was 

hardly de minimis. To the contrary, Shorter was severely penalized with a 

lengthy suspension without pay for failing to accurately complete the medication 

form, a disciplinary action that remains on his employment record and which 

will undoubtedly impact the DOC's consideration under progressive discipline 

principles should Shorter commit any future violations. Under these 

circumstances, we conclude the CSC did not abuse its discretion in reducing 

Shorter's penalty from dismissal to a 120-day suspension.

To the extent we have not addressed any of the DOC's arguments it is 

because we have concluded they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.