Boston Hair Testing Not Reliable Enough

Between 2001 and 2006, as part of the Boston Police Department’s random drug testing program, ten officers submitted hair samples that tested positive for cocaine. In response, the Department terminated their employment.

The ten officers appealed the terminations to the Massachusetts State Civil Service Commission. After extensive hearings, the Commission issued a decision upholding the terminations of four officers and overturning the terminations of six others. The officers and the Department challenged the Commission’s decision in court.

Both the Department and the four officers argued that the Commission erred in the weight it afforded the positive hair test results. The Department contended that under a preponderance of the evidence standard, a positive test result alone was enough to terminate an officer’s employment. The four officers, on the other hand, claimed that because the notices of termination specified only a positive hair test, once the Commission found that the hair testing by Psychemedics (the company contracting with the City to analyze hair samples) was not sufficiently reliable to be the sole basis for termination, the hearings should have concluded and all ten officers should have been reinstated.

A Massachusetts appeals court upheld the Commission’s decision. The Court noted that “when a case comes before the Commission, it hears evidence and finds facts anew. In undertaking this process, the Commission is not limited to the evidence that was before the appointing officer, but may consider any and all evidence before the Commission that it considers relevant.

“Here, after an exhaustive inquiry on the scientific reliability of the Psychemedics hair testing methodology, the Commission reached the conclusion that a positive test was not conclusive on the question of voluntary ingestion, as the positive test may also represent sample contamination by environmental exposure. In other words, the Commission found that the risk of a false positive test was great enough to require additional evidence to terminate an officer for just cause. That conclusion is well supported by the record, which includes evidence of shifting cutoff levels through the years since the testing had been implemented, a lack of general acceptance in the scientific and law enforcement communities, and a lack of universally recognized industry standards.

“Having reached that conclusion, the Commission logically proceeded to examine and to weigh the other evidence available either supporting or refuting ingestion on the part of each officer, applying the preponderance of the evidence standard, and to make a decision as to each officer accordingly. The Commission accordingly properly examined all of the evidence related to whether there was a violation of the Department’s substance abuse rules, not simply the positive hair test result.

“With great precision, the Commission carefully analyzed each officer’s individual case in reaching the determination that the Department had met its burden as to the four officers, but not as to the six reinstated officers. In doing so, a divergent pattern of evidence emerged in the decision as to three factors: the level of cocaine present in the positive test, independent hair test results, and credibility. As to the four officers, each of their initial tests and each of their safety net retests were positive at levels well above the cutoff level.

“Two of the four officers had no independent hair testing following the initial positive test, while a third prevaricated in his testimony on the issue, finally admitting that his independent hair test was positive. Lastly, as to each of the four officers, the Commission found the testimony in support of their denials to lack credibility. In contrast, each of the six officers had initial cocaine levels that were barely above the cutoff limit and each presented evidence of negative independent hair tests. As to credibility, the Commission found that the six officers each presented a credible denial of drug use based on their testimony and any additional supporting evidence. In sum, the evidence amply supported the Commission decision.”

Thompson v. Civil Service Commission, 90 Mass.App.Ct. 462 (Mass. App. 2016).