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Boston Police Department v. Civil Service Commission

Supreme Judicial Court of Massachusetts, Suffolk

October 30, 2019

BOSTON POLICE DEPARTMENT
v.
CIVIL SERVICE COMMISSION & another.[1]

          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 ...


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