Cocaine test used by BPD too unreliable to serve as only reason to reject an officer candidate, court rules

The Supreme Judicial Court today ordered the Boston Police Department to put Michael Gannon at the top of its next list for available slots for patrolman - a job he has been trying to get for ten years despite a positive result on a test for cocaine.

The state's highest court said that the test has proven too unreliable to be the sole reason to exclude somebody from a police career and that it agreed with the state Civil Service Commission that BPD had failed to provide other proof that Gannon had used cocaine; that, in fact, Gannon's actions and statements after learning of the positive result in 2010 strongly suggested he was not a coke user.

At issue is a test that involves hair samples required of BPD applicants after scoring high enough on a civil-service exam. The samples are tested by two laboratories for the presence of various illicit substances, and in 2010, Gannon's sample came back positive for cocaine.

But, the 6-1 majority on the court said, there are just too many problems with the test to make it the sole determining factor. Hair samples are washed at least five times to try to remove any cocaine a person might have accidentally come into contact with, theoretically leaving only cocaine that a person had ingested and which had wound up inside hairs. But "environmental" cocaine can still wind up deeply embedded in hair, making it difficult to remove even after five washings, the court said, adding there is also an issue with false positives due to the presence of legal drugs that could wind up in somebody's hair, such as the lidocaine routinely used by dentists.

And Gannon provided proof to buttress his claim he was shocked by the result and had never used cocaine, such as agreeing to submit a new sample for an immediate re-test, which somebody who had actually used cocaine would likely not want to do, the court said.

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."

The court noted that Gannon's hair had tested negative for cocaine in 2006, 2007 and 2008, when he was in a BPD cadet program.

BPD did not offer Gannon a slot in 2010 and denied him again in 2012. Although its denial letter to him in 2013 did not mention the failed 2010 drug test, BPD acknowledged it was why it did not offer him a position in 2012 in testimony before the Civil Service Commission.

The court agreed with the commission in denying a BPD argument that even aside from the fact it doesn't want drug users on the force, it also doesn't want people with "poor judgment," which it said Gannon showed by agreeing to have his hair tested even though he knew there was a good chance it would test positive. In fact, the court said:

[T]he 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).

The court concluded:

This case is not about whether drug use provides reasonable justification for the department to bypass an applicant for a position as a police officer. The commission made a determination that, by itself, the Psychemedics hair drug test was not enough to sustain the department's burden of proving by a preponderance of the evidence that Gannon ingested cocaine. Having fully examined the administrative record, and having taken into account both the supporting evidence as well as that which "fairly detracts from the supporting evidence's weight," Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 390 (1999), we conclude that the commission's determination was supported by substantial evidence. We further conclude that the commission employed the correct standard and that its decision contains no error of law. We therefore decline to disturb it.