Heard: April 1, 2019
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 for the plaintiff.
James
S. Timmins, for Massachusetts Municipal Lawyers Association,
amicus curiae, submitted a brief.
Lisa
J. Pirozzolo, Arjun K. Jaikumar, Julia A. Harvey, Julia
Prochazka, & Oren Sellstrom, for Massachusetts
Association of Minority Law Enforcement Officers, amicus
curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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 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 (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 (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 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]
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 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 reactivity," which gives rise to an RIA test
reporting a false level of cocaine in the sample. This is why
a confirmatory test must be performed using the more accurate
LC/MS/MS test.
Second,
it is unclear whether any washing procedure designed to
remove external contaminants from a hair sample, including
the washing procedure used by Psychemedics, can do so
effectively. This is because external contaminants may become
absorbed into the hair, and once absorbed, are resistant to
removal. The ways in which substances, including controlled
substances, can incorporate into the hair follicle vary and
are not fully understood. Stout, Ropero-Miller, Baylor, &
Mitchell, External Contamination of Hair with Cocaine:
Evaluation of External Cocaine Contamination and Development
of Performance-Testing Materials, 30 J. Analytical Toxicology
490, 490 (2006) (Stout study). See generally Ropero-Miller
& Stout, Analysis of Cocaine Analytes in Human Hair II:
Evaluation of Different Hair Color and Ethnicity Types,
Report to United States Department of Justice, Document No.
234628 (Mar. 31, 2010) . In addition to ingestion, they
include "blood exchange at the hair follicle; exposure
to sweat and sebaceous secretions; transdermal diffusion of
drug from the skin; and also . . . exposure to the external
environment, including drug residues, contaminated surfaces,
and vaporized drug."[12] Stout study, supra at
490-491.
Thus,
even after a hair sample is "aggressively washed"
and the liquid from the final wash tests negative for
controlled substances, meaning that the external portion of
the hair sample is no longer environmentally contaminated, a
subsequent test of the hair sample using LC/MS/MS may not be
a reliable measure of whether the subject ingested
drugs.[13] That is, although the LC/MS/MS
confirmatory test can identify the type of drug present in
the hair sample, it cannot determine the way the drug became
incorporated into the hair follicle.[14]
3.
Procedural posture.
The
commission allowed Gannon's appeal, concluding that the
hair drug test used was not sufficiently reliable to be the
sole reason for the bypass and, thus, that the department
failed to show by a preponderance of the evidence that its
decision to bypass Gannon was reasonably justified. The
division was ordered to place Gannon's name at the top of
the then-current or future certifications for police officer
positions within the department until he was selected or
bypassed. The department commenced an action in the Superior
Court, seeking judicial review of the commission's
decision pursuant to G. L. c. 31, § 44, and moved for
judgment on the pleadings, pursuant to Mass. R. Civ. P. 12
(c), 365 Mass. 754 (1974). A judge in the Superior Court
allowed the department's motion and reversed the
commission's decision. Gannon and the commission appealed
to the Appeals Court, and we transferred the case to this
court on our own motion.
Standard
of review.
When a
candidate for an appointment appeals from a bypass pursuant
to G. L. c. 31, § 2 (b), the commission's
responsibility is to determine, "on the basis of the
evidence before it, whether the appointing authority
sustained its burden of proving, by a preponderance of the
evidence, that there was reasonable justification for the
[bypass]." Brackett v. Civil Serv. Comm'n,
447 Mass. 233, 241 (2006). Reasonable justification means
"done upon adequate reasons sufficiently supported by
credible evidence, when weighed by an unprejudiced mind,
guided by common sense and by correct rules of law."
Id., quoting Selectmen of Wakefield v. Judge of
First Dist. Court of E. Middlesex, 262 Mass. 477, 482
(1928). It was the department's burden to establish such
reasonable justification by a preponderance of the evidence.
Brackett, supra. Although, as mentioned
supra, the commission owes significant deference to
the department's personnel decisions, especially with
regard to hiring police officers, Cambridge, 43
Mass.App.Ct. at 304, the commission nevertheless is bound to
reverse a bypass decision when the department fails to meet
its burden of proof of demonstrating reasonable justification
for the bypass by a preponderance of the evidence.
Like
the Superior Court, we review the commission's decision
under G. L. c. 31, § 44. Massachusetts Ass'n of
Minority Law Enforcement Officers v. Abban, 434 Mass.
256, 263- 264 (2001) (Abban). The commission's
decision will be upheld unless it is "unsupported by
substantial evidence[, ] . . . arbitrary or capricious, an
abuse of discretion, or otherwise not in accordance with the
law." G. L. c. 3OA, § 14 (7) .[15] Substantial
evidence is "such evidence as a reasonable mind might
accept as adequate to support a conclusion." G. L. c.
3OA, § 1 (6). As we "give due weight to the
experience, technical competence, and specialized knowledge
of the agency, as well as to the discretionary authority
conferred upon it," G. L. c. 3OA, § 14 (7), the
department bears a "heavy burden" of establishing
that the commission's decision was incorrect.
Abban, supra.
Discussion.
The
department contends that, in finding that the bypass was not
reasonably justified, the commission made an error of law and
failed to support its decision with substantial evidence. The
dissent additionally takes issue with the commission's
failure to defer to the department. We examine each point in
turn.
1.
Error of law.
The
department claims that the commission erred by relying on
Matter of Boston Police Dep't Prug Testing
Appeals, 26 Mass. Civ. Serv. Rep. 73 (2013)
(Prug Testing Appeals), a previous
commission decision that reviewed the reliability of
Psychemedics's hair drug testing as applied to tenured
employees. As a result, the department argues, the commission
required the department to meet a higher standard than
necessary to justify the bypass, and failed to defer properly
to the department's exercise of discretion.
In
Drug Testing Appeals, a lengthy decision that
included a comprehensive discussion of Psychemedics's
drug testing procedure, the commission determined that the
test was not sufficiently reliable alone to provide just
cause for terminating a tenured department
employee.[16] Id. at 106, 107. The department
contends that the commission erroneously found that the
Drug Testing Appeals case controlled the result in
this case because the standard for terminating a tenured
employee, "just cause," is higher than the standard
applied to bypass decisions, i.e., "reasonable
justification." The department goes on to argue that
because the commission concluded that, in the circumstances
of this case, the hair drug test is not reason enough to
bypass Gannon, the commission is holding the department to
the "just cause" standard rather than the less
rigorous "reasonable justification" standard.
This
argument fails because the commission did not rely upon
Drug Testing Appeals in its decision at issue here.
Instead, the commission simply noted that the testimony
presented at the hearing was "similar in substance to
the supporting and opposing expert views offered in [Drug
Testing Appeals]." The commission then went on to
state that, "given the commonality of issues and
evidence in the two cases, [the commission found] no reason
to disturb the precedent established in [Drug Testing
Appeals] regarding the reliability of hair drug
tests" (emphasis added). Thus, contrary to the
department's contention, the commission did not apply the
"just cause" standard instead of the
"reasonable justification" standard here. Rather,
the commission merely pointed out that Psychemedics's
hair drug test procedure was not sufficiently reliable on its
own to meet either standard.[17] We see nothing in the
commission's decision indicating that it applied the
"just cause" standard in this case.
2.
Substantial evidence.
In
order to determine whether the commission's decision was
supported by substantial evidence, we must begin by
identifying the department's purported reason for
bypassing Gannon. The commission found that the
department's policy is to not "consider any
candidates after they have tested positive for drugs of
abuse," as Gannon had in 2010. According to hearing
testimony from the department's director of human
resources, this policy is a result of two considerations: (1)
that the department is "looking for [officers] that
don't have a history with drugs," and (2) that
individuals who choose to go forward with a drug test when
they know they might test positive for drugs demonstrate
"poor judgment." Based on this policy, the
department's reason for bypassing Gannon was that he had,
in fact, used cocaine prior to his 2010 drug screen, and
nevertheless decided to go forward with a hair test he should
have known he might fail. For the reasons described
infra, the commission concluded that the department
had failed to demonstrate Gannon's prior drug use by a
preponderance of the evidence. Implicitly, the commission
likewise concluded that the department had failed to
demonstrate Gannon's "poor judgment" by a
preponderance of the evidence, as an individual who had not
used drugs would have no reason to avoid submitting a hair
sample for testing. We hold that this conclusion was
supported by substantial evidence, that is, "such
evidence as a reasonable mind might accept as adequate to
support a conclusion." G. L. c. 30A, § 1 (6).
We
begin with Gannon's hair drug test results. The hair
sample collected in March 2010 was put through a presumptive
test using RIA; the result was positive for cocaine. The
sample was then subjected to LC/MS/MS confirmatory testing,
prior to which it was washed pursuant to Psychemedics's
washing procedure. The liquid from the fifth and final wash
was tested using RIA and was found to be negative for
controlled substances; that is, the external portion of the
hair sample was cleansed of all environmental contaminants.
The subsequent LC/MS/MS test showed that the sample contained
12.2 ng of cocaine per ten mg of hair, which is more than
double the cutoff level of five ng per ten mg of hair set by
Psychemedics. Accordingly, the sample was reported positive
for cocaine. The second hair sample that Gannon provided
approximately one month later, in April 2010, was subjected
only to the presumptive test using RIA, as that sample tested
just below the presumptive positive cutoff level of five ng
per ten mg.
Because
Gannon failed to provide an alternative explanation for the
positive March 2010 test result, the department presumed that
the test result reliably proved that Gannon had ingested
cocaine. However, the commission had conflicting evidence
before it that placed the hair drug test's reliability in
question. On the one hand, the department presented expert
testimony from a representative of Psychemedics that the test
was reliable;[18] on the other, Gannon presented expert
testimony[19] and scientific studies demonstrating
that the reliability of the test has been credibly challenged
in the scientific community.
In
addition to the conflicting evidence regarding the
reliability of the hair drug test generally, the commission
had before it, and credited, Gannon's "ardent[],
repeated[] and credibl[e]" statements denying that he
had ever used cocaine.[20] The commission further noted evidence
that corroborated Gannon's denials, which included the
fact that he did not seek to explain away the positive test
as being a result of external contamination; instead, he
testified that he could not think of how he ever would have
come in contact with cocaine. The commission also considered
the fact that Gannon sought to be retested as soon as he
learned of the positive result, noting that someone who
ingested cocaine multiple times per week likely would seek to
delay a retest. Finally, the commission took note of
Gannon's other hair drug tests on record, dating from
2006 to 2012, all of which were performed by Psychemedics,
and all of which, except for the March 2010 test, were
reported negative (i.e., below Psychemedics's set cutoff
level) for illegal drug use.[21]
In
determining that the department did not demonstrate
reasonable justification for Gannon's bypass, the
commission weighed the evidence presented by the department
that Gannon ingested cocaine against the evidence that Gannon
provided that he did not.[22] Given the credible concerns in
the scientific community regarding the hair drug test, as
well as Gannon's credible testimony, there was
substantial evidence, i.e., that which "a reasonable
mind might accept as adequate to support a conclusion,"
G. L. c. 30A, § 1 (6), for that
determination.[23]
3.
Deference.
The
dissent takes issue with the fact that the commission failed
to defer to the department's hiring decision, contending
that the commission instead substituted its own standard of
risk of drug use by police officer candidates for that of the
department. Post at . In doing so, the dissent
strays from our long-standing administrative law
jurisprudence, committing two major errors. First, rather
than simply making a determination whether the
commission's decision was supported by substantial
evidence, the dissent instead weighs the evidence itself,
engages in its own fact finding, and substitutes its own
judgment for that of the commission. Second, by relying on
Beverly v. Civil Serv. Comm'n, 78 Mass.App.Ct.
182, 188 (2010), the dissent erroneously suggests that when
facts are in dispute regarding a candidate's conduct, the
department need only provide a "sufficient quantum of
evidence to substantiate its legitimate concerns"
regarding that candidate to justify a bypass decision rather
than providing reasonable justification by a preponderance of
the evidence as required by G. L. c. 31, § 2 (b).
To
begin, the dissent errs by viewing the case through the lens
of the commission rather than that of a reviewing court. In
concluding that the commission improperly weighed the
evidence presented to it, post at, rather than
leaving the commission to its task of making credibility
determinations and factual findings, the dissent makes its
own.[24] See School Comm. of Brockton v.
Massachusetts Comm'n Against Discrimination, 423
Mass. 7, 15 (1996) ("The commission, and not the court,
is the sole judge of the credibility and weight of the
evidence before it") .
In
finding that the commission came to the wrong conclusion
regarding the Psychemedics hair drug test, the dissent relies
principally upon the fact that the result of the confirmatory
LC/MS/MS test of the sample was more than twice
Psychemedics's positive cutoff level, contending that
this result, together with Gannon's failure to provide an
explanation for it, is sufficient proof of Gannon's
ingestion of cocaine to justify the bypass.[25] The dissent
makes much of the fact that the liquid from the fifth wash of
Gannon's March 2010 hair sample was negative, which
presumably means that any external contaminants had been
removed from the outside of the sample. However, the dissent
ignores the evidence that the commission had before it,
including testimony from Cairns, the expert from
Psychemedics, that external ...