Firefighter’s medical marijuana suit sent back to Ocean City

Judge says Donald Wiltshire must ‘exhaust the administrative process’ through city hearing

Andrew Parent

 

OCEAN CITY — A judge has denied a claim by an Ocean City firefighter who says he was removed from active duty last fall for his prescribed use of medical marijuana.

In an opinion released June 9, Cape May County Superior Court Judge J. Christopher Gibson said Donald Wiltshire must participate in a disciplinary hearing before the city.

Wiltshire, represented by attorney Louis Barbone of Atlantic City, filed a civil suit against Ocean City Fire Chief Chris Breunig and the city in February. The suit states Wiltshire was suspended without pay with intent to terminate in November 2015 for using medical marijuana.

Ocean City Fire Chief Chris Breunig said Thursday, July 14, that Wiltshire is currently on paid sick leave, and city solicitor Dottie McCrosson also said Wiltshire was never suspended without pay, as the lawsuit claims.

A firefighter in the resort for 20 years before his suspension, Wiltshire met with Breunig in October 2015 and disclosed he was using marijuana for a condition known as Meige syndrome, according to court documents.

Wiltshire was diagnosed with the condition in 2006, and medical marijuana “is the most comprehensive and effective medical treatment that he has experienced” since, according to the lawsuit, posted by John Paff, an open records advocate, on his blog at njopengovt.blogspot.com.
He was originally prescribed various treatments including botox and clonopin, according to the lawsuit.

The suit states that Wiltshire never possessed or used medical marijuana on the job, and that when he had time off, he was able to treat his condition and then “perform without hesitation or limitation on his assigned work shifts.”

Wiltshire was immediately removed from active duties after telling Breunig about his medical marijuana use, and was ordered to undergo physical and medical testing by a “city physician,” as well as a drug test, according to the court documents.

On Nov. 12, after the drug test confirmed that Wiltshire had cannabis in his system, Wiltshire was suspended without pay with the intent to terminate, according to Wiltshire’s lawsuit.

Breunig confirmed Wiltshire was taken off active duty in October 2015, and said Wiltshire was placed on the paid medical leave immediately after the test results came back.

Breunig and the city contend that Wiltshire violated city policy when he used marijuana and the clonopin without telling officials.

Medical marijuana use was legalized in New Jersey in 2010.

In February of this year, a bill that protects medical marijuana patients from discrimination in the workplace or termination due to a positive marijuana test was filed in the state Assembly. The legislation, Bill 2482, was referred to the Assembly’s Health and Senior Services Committee, according to the state legislature’s website.

Although the state’s 2010 Medical Marijuana Act does not address employment action related to medical marijuana use, “the legislative intent and the pending legislation of Assembly Bill 2482 show that plaintiff would be protected by the statute and defendant must establish that the lawful use of medical marijuana has impaired the plaintiff’s ability to perform his job responsibilities as a firefighter,” Gibson wrote.

Gibson added that Wiltshire needs to “exhaust the administrative process” by appearing before the city in a hearing.

Breunig said his department has policies and procedures in place that prohibit using medications that could possibly impair a firefighter while on duty.

“Firefighting is a safety-sensitive issue,” said Breunig, who declined to comment on the legal proceedings. “We have policies for prohibiting the use of medications while on duty.”

Barbone was not immediately available Thursday. A call to a phone number listed for Wiltshire was not immediately returned.