Boston Police Department v. Civil Service Commission

         Argued April 1, 2019

         [133 N.E.3d 324] Civil Service, Police, Appointment, Testing, Decision of Civil Service Commission, Findings by commission, Judicial review. Labor, Police, Civil service, Judicial review. Municipal Corporations, Police. Police, Hiring. Public Employment, Police. Administrative Law, Judicial review, Substantial evidence. Practice, Civil, Review of administrative action.

          CIVIL ACTION commenced in the Superior Court Department on November 30, 2015. The case was heard by Elizabeth M. Fahey, J., on a motion for judgment on the pleadings.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Michael F. Neuner for Michael Gannon.

         Amy Spector, Assistant Attorney General, for Civil Service Commission.

         Helen G. Litsas, Boston, for the plaintiff.

         James S. Timmins, Quincy, for Massachusetts Municipal Lawyers Association, amicus curiae, submitted a brief.

         Lisa J. Pirozzolo, Arjun K. Jaikumar, Julia A. Harvey, Julia Prochazka, & Oren Sellstrom, Boston, for Massachusetts Association of Minority Law Enforcement Officers, amicus curiae, submitted a brief.

         Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          OPINION

         BUDD, J.

          The Boston police department (department) requires applicants for officer positions to be screened for drug use via a hair sample test. The department bypassed Michael Gannon for employment in 2013 because his hair sample tested positive for [133 N.E.3d 325] cocaine use in 2010. Gannon, who denied ever having used cocaine, appealed from the bypass to the Civil Service Commission (commission). After a hearing, the commission concluded that given the documented concerns regarding the reliability of the hair drug test generally, and the credible evidence from Gannon himself, the department had not demonstrated reasonable justification for the bypass. The department sought review of the commission’s decision before a judge of the Superior Court, who overturned the decision and entered judgment for the department. Gannon and the commission appealed, and we transferred the case to this court on our own motion.

         We note at the outset that the commission owes substantial deference to the department’s decision making, particularly when it comes to hiring police officers. See Cambridge v. Civil Serv. Comm’n, 43 Mass.App.Ct. 300, 304-305, 682 N.E.2d 923 (1997). And we do not question the appropriateness of the department’s concern about a candidate’s drug use. See O’Connor v. Police Comm’r of Boston, 408 Mass. 324, 328, 557 N.E.2d 1146 (1990). But where a candidate challenges the department’s decision to bypass him due to a positive drug test purportedly demonstrating that he recently had used cocaine and that he had exercised poor judgment by taking the test knowing he might fail it, the issue for the commission was not whether there was a substantial risk that the candidate had used illegal narcotics, but whether the department had demonstrated by a preponderance of the evidence that the candidate in fact had used illegal narcotics. After a full evidentiary hearing, the commission determined that the department had not met its burden.

         Our task is to review the commission’s decision to ensure that it is supported by substantial evidence and contains no error of law. G. L. c. 30A, § 14 (7). Upon review, we reverse the judge’s order allowing the department’s motion for judgment on the pleadings, and affirm the commission’s decision.^[2]

          Background .

          We summarize the relevant facts found by the commission and supported by substantial evidence, supplemented with facts contained in the administrative record and consistent with the commission’s findings. We reserve some facts for later discussion of specific issues.

         1. Gannon’s applications to the department .^[3]

         Gannon initially became associated with the department in 2006 when he applied to become a department cadet, with the goal of becoming a Boston police officer. Gannon was a cadet from January 2007 until June 2009, when the cadet program was discontinued. As a cadet applicant, and later as a cadet, Gannon submitted hair samples for drug testing in 2006, 2007, and 2008; the results were negative on each occasion.

         As part of Gannon’s initial application to become a police officer with the department, he took and passed the civil service examination (examination) for police officer candidates in April 2009.^[4] He also submitted a hair sample for a preemployment [133 N.E.3d 326] hair drug test in March 2010, which tested positive for cocaine.^[5] At the hearing before the commission, Gannon testified that when he learned of the positive test result approximately one month later on April 20, 2010, he "was just completely shocked" and "couldn’t believe it." He further testified that he had "never in [his] entire life used cocaine in any way, shape or form, whether it be shot, sniffed, smoked, never," that his friends do not take drugs, and that "there’s no possible way" that he touched cocaine or snorted it even once. The day after Gannon learned of the test result, he provided a second hair sample for testing by the same laboratory. Although the result was not zero, it was below the level considered to be "presumptively positive." He was not selected as an officer in 2010.^[6]

         Gannon took and passed the examination again in April 2011. In June 2012, the department sought to fill between approximately sixty and seventy police officer vacancies. The human resources division (division) of the Commonwealth provided the department with a certification list that included Gannon’s name (certification no. 202869).^[7] In August 2012, Gannon submitted a hair sample to be screened for controlled substances; the result was negative.

         In January 2013, the department sent Gannon a letter notifying him that he was "in a group of applicants who were all tied with the same score and [he was] one of the applicants not selected." Of those selected from certification no. 202869, one candidate was tied with Gannon on the list, two were ranked below Gannon, and one candidate did not appear on the list at all. The notice did not mention a failed drug test or a bypass. However, at the hearing, the department’s position was that Gannon was not appointed at that time because he had tested positive for cocaine in 2010. Gannon commenced the instant appeal with the commission, challenging the department’s decision.^[8]

         [133 N.E.3d 327] 2. The hair drug test .

         The department outsources the testing of hair samples for illegal narcotic use to Psychemedics Corporation (Psychemedics), a company that has licensed laboratories in approximately twenty-two States. The bulk of Psychemedics’s work consists of testing hair samples for the presence of controlled substances such as cocaine, opiates, amphetamines, and marijuana.

         a. The testing procedure .

         The department’s expert, Dr. Thomas Cairns, the senior scientific advisor for Psychemedics at the time of the hearing,^[9] testified as to the proprietary procedure Psychemedics uses to test hair for illegal narcotics. The first step involves an initial screening or "presumptive test" of the hair sample by radioimmunoassay (RIA), which can detect the presence of controlled substances. If the RIA detects narcotics at or above the "cutoff" concentration level of five nanograms (ng) of cocaine per ten milligrams (mg) of hair, a confirmatory test is performed on a second part of the submitted sample.^[10]

         As part of the confirmatory test, the hair sample is subjected to five separate washes with a phosphate buffer solution in an attempt to remove any traces of narcotics in the sample from potential external or "environmental" contamination, as compared to narcotics that are ingested and present in the hair follicle. The liquid from the fifth wash is tested using RIA to determine whether external contaminants are present in the solution. According to Cairns, a fifth wash that tests negative for controlled substances means that any external contaminants initially present have been removed from the hair sample. Following the washing procedure, the hair sample is examined by way of liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS)^[11] for the presence of controlled substances. If the result is above the cutoff level of five ng per ten mg, Psychemedics reports it as a "final positive confirmed," meaning it was positive for controlled substance(s).

          Psychemedics sends positive LC/MS/MS test results to Concentra Health Services, Inc. (Concentra), an independent company, for review. Concentra assigns a medical review officer (MRO) who reviews the results and contacts the applicant to determine whether there is an explanation for the positive drug result (aside from ingesting a controlled substance). If the applicant fails to provide such an explanation, the MRO then issues a report notifying the department of the applicant’s positive drug test result.

          b. Reliability concerns regarding Psychemedics’s hair drug test .

          As detailed infra, Gannon presented expert testimony and scientific studies calling into question whether Psychemedics’s hair drug testing procedure could prove reliably that a subject had ingested cocaine rather than having [133 N.E.3d 328] been environmentally exposed to it. Questions center around RIA testing as well as the effectiveness of any washing procedure to remove external contaminants from hair samples in preparation for a confirmatory test.

          First, RIA testing is prone to produce false positives. RIA testing involves incubating an antibody with the hair sample and radioactive material. The receptors of the antibody attract the radioactive material and the controlled substance for which the sample is being tested, e.g., cocaine. When analyzed, the antibody receptors that do not have radioactive material bonded to them are presumed to have bonded with the controlled substance that the antibody was designed to attract. However, the antibody used in RIA testing to detect cocaine also attracts substances that have similar chemical structures to cocaine, including local anesthetics used by dentists like lidocaine. Thus, there exists the potential for "cross ...