In a sharply worded decision, the Civil Service Commission reversed the Boston Police Department’s bypass of a candidate who tested “positive” for cocaine in a hair test and strenuously denied any use of illicit drugs. In short, the Commission’s decision Justiniano Plaza v. Boston Police Department http://www.mass.gov/csc/csc_cases/plazajustiniano.pdf (July 10, 2008), indicates that police departments cannot blindly hide behind a laboratory’s written assertion that an officer tested “positive,” especially where the test process has generated enormous controversy. The decision is a daring vindication of the basic merit principles behind Civil Service and a refusal to kowtow to mindless hysteria or adopt the illogic of management when confronting allegations of substance abuse.

In this case, Suffolk County Correctional Officer Justiniano Plaza tested “positive” for cocaine on a hair test administered by the Sheriff. The Sheriff used the same policy and laboratory, Psychemedics, as used by the Boston Police Department (“BPD”). Despite the “positive” result, Plaza vehemently denied using cocaine. In order to spare himself from termination, Plaza agreed to a 45-day suspension and subjected himself to three years of random urine drug testing (he tested negative). Otherwise, Plaza, a former Marine, had a very strong employment record and a history of passing all employment drug tests without difficulty.

The BPD relied almost exclusively on the Sheriff’s hair test result and subsequent suspension to bypass Plaza. On appeal, a majority of the Civil Service Commission (two of whom were appointed by Gov. Deval Patrick) reversed the BPD’s bypass and ordered the Department to reconsider Plaza for appointment to the next vacancy. (The two dissenting Commissioners originally were appointed by Gov. Romney). This majority decision rested primarily on three reasons: 1) a drug test result, unsubstantiated by any scientific testimony, is insufficient to justify a bypass or other adverse action, or even to require the officer to disprove the result; 2) a “positive” test result cannot automatically disqualify an applicant, where the BPD claims to consider an applicant’s entire record; and 3) the BPD cannot permanently disqualify applicants for past drug test results if the applicants successfully rehabilitated themselves, especially where the BPD permits its police officers to rehabilitate themselves following a positive drug test result.

The Commission majority acknowledged the ongoing federal litigation by several African American BPD officers who were terminated on basis of “positive” hair tests for “cocaine.” It also noted that 18 cases pending before the Commission challenge the validity of hair testing for cocaine. The Commission majority was careful to note that its decision does not prejudge the outcome of these appeals. Sandulli Grace, PC, represents many of these officers (members of or represented by the Boston Police Patrolmen’s Association, Inc.) at the Commission.

The City of Boston is likely to appeal the Commission’s decision to court.

In a surprisingly anti-employer decision, the Civil Service Commission enforced a preference for formerly disabled retirees at the expense of existing employees ready, willing and able to immediately accept a promotion appointment. In Faggiano, Jones & Cappuccio v. City of Medford and Human Resources Division, issued on July 3, 2008, the Commission backed the Human Resources Division (HRD)’s decision to bar the City of Medford from promoting one of the three top-ranked firefighters to a vacant lieutenant’s position. In denying the appeals of the top three firefighters on the promotional list, the Commission accepted HRD’s logic that preserving job openings for returning disability retirees while they are undergoing retraining sometimes means denying promotional opportunities to current employees.

The case involves the public employee disability retirement law, which, after a 1996 overhaul, requires employers to reinstate retirees once they are determined to be fit for the jobs and no longer disabled. Formerly disabled retirees who have been out longer than two years must be reinstated only if a vacancy in the same or a similar position exists. If no such vacancy exists, then the retiree is “granted a preference for the next available position. . . .” G.L. c. 32, § 8(2)(a). For civil service employees (such as the Medford firefighters), the law adds another twist: anyone retired for at least five years must successfully complete retraining. The retraining program must be designed by the employer and approved by HRD.

In Medford, three fire lieutenants who had been granted disability retirements 15 years ago or more were cleared by Public Employee Retirement Administration Commission (PERAC) to return to work. Because they were all retired for so long, the Fire Chief designed a retraining program that required successful completion of the Massachusetts Fire Academy. HRD approved the plan. The Fire Academy, however, refused to enroll the firefighters. Fire Academy policy apparently prohibits firefighters with five years or more of seniority to attend its full-time program.

When a vacancy later arose in a lieutenant’s rank, HRD refused to certify a list containing the top-ranked three firefighters. According to HRD, the returning and formerly-disabled retirees had a statutory preference for the next vacant lieutenant’s position. The three firefighters in line for the promotion filed appeals with the Civil Service Commission, which their fire union local supported..

The Commission sided with HRD and the returning retirees. It agreed that HRD had the right to refuse to provide a promotional list as long as at least one PERAC-approved retiree waited to return. The Commission also rejected the existing firefighters’ argument that the retirees’ right to a preference does not materialize until after they successfully completed a retraining program. The Commission also criticized the City for failing to work with HRD to construct a retraining program that did not require the use of the Fire Academy, especially after the City learned of the Fire Academy’s refusal to retrain the retirees. Ultimately, the Commission prohibited the City from using anyone but one of the formerly disabled retirees to fill the vacancy.

The Commission’s decision contrasts with recent court cases that have outlined when retirees are entitled to their former positions. The SJC ruled in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), that a returning retiree does not have the right to reinstatement until he completes the required retraining program. Just last year, the Appeals Court, in Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007) concluded that a returning retiree reinstated before completing her retraining program is only conditionally reinstated and has no “just cause” protections under civil service law to appeal her termination. When PERAC amended its regulations to require that disability retirees seeking to return to work must obtain a unanimous vote of a medical panel, not merely a majority (thus making it more difficult to return), the Appeals Court approved the change in Pulsone v. PERAC, 60 Mass. App. Ct. 791 (2004). Also in 2004, the Appeals Court acknowledged in Thomas v. Department of State Police, 61 Mass. App. Ct. 747 (2004), that an existing collective bargaining agreement governs the terms of employment of the returning former retirees. The court rejected an argument by the returning retirees that the retirement laws guaranteed them better wages and benefits than the CBA.

It remains to be seen whether the Faggiano case signals a trend away from these pro-employer cases and back toward the pro-retiree cases of the late 1990s. One of the appellants has appealed the case, which means a court will have an opportunity to weigh in on the Commission’s new interpretation of Chapter 32, Section 8.