Boston PD Hair Tests Ruled Invalid

A Massachusetts trial court has not only upheld but expanded on a ruling by the state’s Civil Service Commission that struck down the use of hair tests as part of the random drug testing program for the Boston Police Department. The case involved the termination of ten officers who had tested positive for cocaine. The Commission overturned the discharges of six of the officers, finding that the only evidence against them consisted of the hair tests.

The City’s primary argument was that hair tests are sufficiently reliable so that a positive test result, standing alone, could amount to “just cause” for termination even if the officer denied the use of drugs. The Court held that “the Commission properly recognized that, if the scientific basis for the hair test were so well-grounded that its results would be unimpeachable in every instance, then a positive hair test would necessarily outweigh any other evidence. But if the scientific basis for the hair test was not so well-grounded – that is, if the hair test was subject to false positive results in some significant percentage of instances – then the hair test could not by itself carry the Department’s burden in the face of an officer’s credible denial.

“In such instances, evaluation of the preponderance of the evidence would have to depend on other factors. The Commission concluded that the scientific basis for hair testing was not so well-grounded. The Commission’s conclusion in this regard was fully supported by its evaluation of the evidence before it, including its credibility judgments of the expert testimony. The Court is not in a position to second-guess the Commission’s judgment in this regard.”

The Department pointed to a clause in the collective bargaining agreement with Boston’s rank-and-file union that authorizes termination for a positive hair test. However, the Court found, “the Commission’s decision identifies a direct conflict between the collective bargaining agreement and the civil service law. The agreement allows termination for a positive hair test standing alone, even where the test result may not reflect actual misconduct. The civil service law, in contrast, permits termination only for just cause. The statute thus supersedes the collective bargaining agreement, and the Commission properly applied the standard required by statute.”

In one respect, the Court’s decision went even further than the Commission’s, finding that the Commission improperly limited the back pay of the six reinstated officers to the date when its evidentiary hearing began. The Court found that the civil service statute “expressly dictates the relief required. The statute provides that if the Commission determines that the appointing authority has failed to prove just cause for its action, the Commission shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights. Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself.”

Boston Police Department v. Civil Service Commission, No. 13-1250-A (Mass. Super. 2014).