As the legal sale of recreational marijuana began Thursday in New Jersey, some local leaders said they would fire officers in their cities who use cannabis off duty. However, these city leaders are at odds with state officials who say such actions would be a violation of state law as it stands now.

The ruckus of differing opinions about allowing marijuana use by New Jersey cops exploded this week, but it has been legal for more than a year for police officers to use recreational marijuana in the state. However, that was not an issue simply because marijuana was not being sold yet.

The state marijuana law protects employees from adverse actions an employer may take if they use legal, regulated marijuana when not at work. "Adverse employment action" means refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment. According to state officials, police officers also fall under that employee protection currently.

Around the state, leaders are mired in debate and confusion.  Many want to prevent police officers from using marijuana while off duty yet the state’s acting attorney general has pointed out, according to the current law, departments cannot take “any adverse action against any officers because they do or do not use cannabis off duty.” The president of the New Jersey State Association of Chiefs of Police also echoes that departments can be in violation of the law and face punitive damages if they take any adverse employment action against an officer for off-duty use of recreational marijuana.

The issue was created by the state law legalizing marijuana not incorporating an exclusion for “safety-sensitive positions” such as police officers. Such wording is commonly used by other states when they legalize marijuana, however, New Jersey’s law was crafted without that exception in February 2021. If exclusion for police officers had been incorporated in the state law more than a year ago, then all this conflict would not exist now.

Despite Acting Attorney General Matt Platkin’s reminder via memo last week about not taking adverse actions, city leaders around the state disagree and are taking steps to mandate officers cannot use marijuana. Some city officials even say officers will be fired if they use marijuana off duty.

Jersey City Mayor Steven Fulop issued a warning to the city's police force -- using marijuana, even off-duty, "will result in termination," reports NBC New York.

“We disagree w/NJ’s position on this + agree w/fed standards.  Our local police leadership will be issuing a directive today to the nearly 1000 police officers in #JerseyCity that we respect Nj’s position BUT to clarify in JC officers (on duty/off duty) will not be permitted law enforcement to smoke is an outlier nationally and one that will put our officers + community at risk with impaired judgement. Unlike alcohol where there are tests + timelines that can create clear protection between consumption + duty, w/marijuana that doesn’t exist.,” Fulop said in a Tweet earlier this week. “There will be no ambiguity on how JCPD will approach this + we will pursue legally if tested via the federal court system.”

In a Wednesday letter to Police Director Tawana Moody, Jersey City Public Safety Director James Shea said all city police officers are prohibited from using marijuana, despite the acting attorney general previously announcing that all cops in New Jersey would be allowed to use the drug while off-duty, reports NorthJersey.com.

Also Wednesday, the Newark Municipal Council passed a resolution 5-0 asking Mayor Ras J. Baraka to issue an order prohibiting Newark police officers from using marijuana while off duty, reports RLSmedia. The City of Bayonne also is banning officers from using marijuana, according to HudsonReporter. Bayonne Mayor Jimmy Davis, a retired police officer, has also been vocal on the matter.

“As a retired police officer myself, I know that sworn law enforcement officers must be held to a higher standard and I believe that allowing marijuana use by off-duty personnel would lead to lawsuits that would endanger both taxpayers and public safety by making it harder to win criminal convictions,” Davis said in a statement earlier this week.

FOP Cautions

Wednesday, a day before legalized recreational marijuana sales began, the New Jersey Fraternal Order of Police issued guidance. A copy of that letter was posted on its social media platform. The letter acknowledges courts have always held law enforcement officers to higher standards of moral and ethical conduct. It also provides advice for navigating the current debacle.

“We are therefore advising all of our active-duty members to exercise due regard and caution while we await clarification from the New Jersey Attorney General’s office on a number of key elements,” the FOP letter says.

The letter further informs FOP members that the state president is in repeated contact with the attorney general’s office but also says, “The fact remains that there continue to be very pertinent, germane questions that no one yet has conclusive answers to. The NJFOP’s recommendation therefore, at least for the next few weeks, is to advise against any of our members being a test case.”

“Your New Jersey (FOP) state executive board is committed to continuing pursuit of definitive answers from authoritative sources as to what the ramifications might be if a law enforcement officer were to be involved in a critical incident after lawfully indulging in recreational cannabis use. We will obviously share that information as it becomes available. At this moment there are just too many unknowns,” the letter stated.

The state FOP cautions members against recreational use of cannabis products until concerns are answered by government leaders.

“Again, please do not let yourself become the test case,” the FOP letter says in conclusion.

Correcting Conflict

The Cannabis Regulatory, Enforcement Assistance, and Market Place Modernization Act (CREAMMA) was signed into law by Gov. Phil Murphy in February 2021. The Cannabis Regulatory Commission approved seven medical dispensaries to sell recreational marijuana. Those sales started Thursday. Another 100 small businesses have been given provisional approval so they can start taking steps toward selling legal marijuana. All of this simply follows the will of the people of New Jersey. In November 2020, New Jersey voters approved amending the state constitution to legalize recreational marijuana.

When CREAMMA was signed into law, it did not include exclusion for “safety-sensitive positions” for anyone, including public safety. That lack of wording has created this week’s conflict around the state. But, it can be corrected if the state legislature drafts a change to the law and it is signed by the governor. Earlier this week, the governor said he would be “open minded” to a “legislative fix.”

The New Jersey State Association of Chiefs of Police is hoping the state legislature will change the state law, basically amending CREAMMA to make it no longer allow off-duty marijuana use by police officers.

“The chiefs association’s take is that the law as it currently exists has to be modified or amended to be able to get an exclusion for what we call ‘safety-sensitive’ positions, which would include law enforcement. We’re not breaking ground. That is something that in states that have legalized recreational marijuana, many of those states have this exclusion,” says Sayreville Police Chief John Zebrowski, president of the New Jersey State Association of Chiefs of Police. “We think it is appropriate first for the safety of our employees and, second of all, in order to maintain public confidence and trust.”