Civil Service Overturns Discharges Of Six Boston Police Officers: Hair Testing Not Ready For Prime Time

In a landmark ruling with national and even international implications, the Massachusetts Civil Service Commission upheld the appeals of six former Boston Police Officers who had been fired solely because a California drug testing company (Psychemedics Corporation) claimed their hair samples showed they had ingested cocaine.  The 132 page decision, written by Commissioner Paul Stein, concluded that hair testing lacks the necessary reliability to be the sole basis for terminating a tenured Massachusetts civil servant:

The present state of hair testing for drugs of abuse, while potentially useful in clinical assessment settings, and in the context of child custody, criminal probation and pre-employment hiring decisions, does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards governing civil service employees under Massachusetts law. [page 107]

Unfortunately, four other officers’ appeals were denied, although those cases stand to be appealed.  All appellants were represented by Sandulli Grace Attorneys Alan Shapiro and Jennifer Rubin and with the unflinching and steadfast support of their union, the Boston Police Patrolmen’s Association (BPPA).

As thoroughly laid out in this sweeping and studiously crafted decision, the BPPA and the City of Boston/Boston Police Department, both desirous of maintaining a “zero-tolerance” policy for drug use, negotiated an annual hair testing policy, starting in 1999.  Because random urine testing was constitutionally impermissible under state law, the City/BPD sought an alternative testing modality.  At the time, the Union and the City/BPD believed the claims of Psychemedics Corporation that its hair tests could successfully ferret out illegal drug use going back months, as opposed to the hours or days of urine tests.  Urine testing was then, as it is now, the only approved testing method under the Mandatory Guidelines (covering approximately 10 million workers) of the Federal Drug-Free Workplace Program,

Under the hair testing protocol implemented by the Police Department, it collected a hair sample from every officer once a year, within 30 days of his/her birthday.  The sample was flown to the Psychemedics laboratory in California, where it was subjected to various laboratory tests and analyses, and then pronounced either positive or negative for various illegal drugs, including cocaine.  If deemed positive, the officer was given the opportunity to submit to Psychemedics a second hair sample, which was run through the same tests.  Unbeknownst to the Union (and probably, at least initially, the BPD), the second sample was declared a positive confirmation of the original sample if it had only 40% of the cocaine levels of the first sample.  Later, Psychemedics lowered the positive confirmation of the second (“safety net”) test to 4% of the level found in the original sample.

If an officer could not explain to a physician hired by the Department why s/he had tested positive (for cocaine there was virtually no explanation that would be accepted, since it is rarely utilized by physicians and other “caine” drugs, such as xylocaine or lidocaine, do not trigger cocaine positives), the officer was faced with the choice of termination or a 45-day suspension, mandatory drug counseling, and years of random urinalysis.  A second positive, either in a urine test or another hair test, resulted in termination.

From 1999 through 2006, approximately 90 officers tested positive for illegal drugs, most for cocaine.  Many accepted the 45-day suspensions and continued their careers.  Some accepted the suspensions and were later terminated for a second positive test.  Some, including 7 of the 10 officers involved in this case, refused to accept the suspensions for something they insisted they did not do and were terminated.

A key problem with hair testing that had only begun to emerge when BPD began this program is that hair absorbs certain substances, in particular cocaine, not just from internal consumption but also from external exposure.  While companies such as Psychemedics have developed elaborate laboratory procedures and mathematical formulae to eliminate the effects of external exposure, because the quantities at issue are so infinitesimal, there has yet to develop a scientific verification of their efficacy.  In other words, a positive hair test for cocaine can indicate external, atmospheric exposure, not necessarily ingestion.  The quantities being measured are on the scale of measuring one second over a period of 27 years.  In these quantities, scientific studies have shown measurable levels of cocaine in 92% of U.S. paper currency in five Ohio cities and on the school desks of elementary school children in both urban and suburban schools in the Washington D.C. area.

The BPPA’s initial attempts at challenging these decisions were largely unsuccessful.  Various arbitrators rejected challenges to the Psychemedics testing methodologies, including the use of the lowered standards for the “safety net test.”  But in 2003, in a decision written by former Commissioner Daniel Henderson, the Civil Service Commission overturned the discharge of an officer who refused to accept the 45-day suspension after Psychemedics claimed that his hair test positively confirmed that he had ingested cocaine.  Although the case was reversed and remanded in 2004 by a Superior Court judge on procedural grounds, several of Commissioner Henderson’s holdings proved prophetic, including the lowered safety net standard and the lack of acceptance in the scientific community for hair testing as the sole determinant of illegal drug ingestion.

In addition, many of the civil service appellants were also plaintiffs in a federal lawsuit contending that hair-testing is racially biased.  There, they were supported by the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO), and represented by attorneys from the Lawyers’ Committee for Civil Rights of the Boston Bar Association, Inc., and by attorneys and staff at a large Boston law firm, Bingham McCutcheon.  Although the federal case was rejected at the trial level based on statistical analysis (an appeal is pending), the work of these attorneys provided valuable discovery that we were able to utilize in the civil service appeals.

By the time the Commission began the 18 days of hearing in October 2010, additional scientific evidence and other developments further challenged the efficacy of hair testing as a “stand alone” employment test.  Scientific studies done under grants by the U.S. Department of Justice caused the FBI to suspend using hair testing in all cases, except criminal cases involving children.  In addition, in 2008, after four years of study, the federal agency charged with overseeing the federal workplace drug programs rejected hair testing, leaving only urine testing as the approved testing modality.

Of enormous assistance to Attorneys Shapiro and Rubin at Sandulli Grace were two expert witnesses: Dr. Douglas Rollins and Dr. J. Michael Walsh.  Dr. Rollins, in addition to publishing numerous scientific papers regarding the incorporation of drugs into hair, had served as the medical review officer for drug testing in the 2002 Salt Lake City Winter Olympics.  Dr. Walsh served in both the Reagan and Clinton administrations and was an important contributor to the design and implementation of the federal workplace drug program.  Dr. Walsh’s company has since gone on to consult with numerous industries, including the National Football League.  Both experts challenged the BPD’s use of hair testing as a “stand alone” measurement.  Neither believe that hair testing has yet advanced to the level that, solely based on a hair test, an employer can conclusively state that an employee has ingested cocaine and proceed to fire him/her.  The Commission gave great weight to the testimony of these two scientists.

Supporting the BPD’s hair tests were Dr. Thomas Cairns, an employee of Psychemedics, and Dr. Leo Kadehjian, “a biochemist, with no direct drug testing experience or research credentials.”  (Decision at ¶131).  Although the decision did approvingly cite some of Dr. Kadehjian’s testimony, Commissioner Stein flatly rejected some of this expert’s opinions:

Where, however, the Appellants showed that the underlying source material on which Dr. Kadehjian relied did not support his opinions, I give those particular opinions no weight. For example, Dr. Kadehjian opined in his initial expert report that the SAMHSA “published” procedures for hair drug testing that, although not “formally implemented”, have “recognized the utility of hair as a suitable specimen . . . with the same level of confidence that has been applied to the use of urine”. The evidence showed that this opinion was hyperbole, at best, and possibly could be called misleading. Similarly, Dr. Kadehjian opined that “the United Nations has recognized the role of hair drug testing . . . and has provided hair testing guidelines.” In fact, the role that the UN recognized for hair drug testing was as “a complementary test for urinalysis”, not as a stand-alone test. Dr. Kadehjian?s outdated opinions about the scientific consensus CE as a distinct metabolic marker of ingestion were noted in the findings above on that subject. (¶132)

Sifting through the scientific evidence with extraordinary precision and intellectual energy, Commissioner Stein eventually concluded that while the Psychemedics hair tests could provide some evidence of illegal drug use, sole reliance on them as the basis for discharge does not meet the requisite “just cause” standard of the civil service law.

This finding has enormous consequences.  To date, we are unaware of any other case where the reliability of hair testing has been challenged, examined and litigated as it was in this case.  Psychemedics Corporation undoubtedly understood what was at stake, since a mini-phalanx of its executives and attorneys faithfully attended the hearings.[1]

      Where the decision breaks down is in the final result.  After finding that these hair tests did not suffice to establish just cause for discharge, the Commissioner parsed the extremely skimpy record to decide who should be believed and who not believed with respect to ingesting cocaine.  While a penetrating investigation might have been a valid inquiry by the BPD when it fired these officers between six and eleven years ago, it had never been done.  The BPD stipulated that the only reason it fired these officers, many of whom had spotless personnel records, some of which included medals for heroism, were the Psychemedics test results. 

Asked on the stand to speculate why they may have tested positive, some appellants recited situations where they had come into contact with cocaine, either at work or other locations.  In finding some of these explanations not credible, the Commission essentially was forcing the appellants to prove their innocence rather than insisting the BPD prove just cause.  There is no reliable scientific article which has yet to study, let alone pinpoint, the specific mechanisms by which cocaine permeates human hair.  Just as we know that cigarette smokers contract lung cancer in far greater percentages than non-smokers, we also know that some non-smokers also get lung cancer.  So too, we do not know why some react more than others to environmental cocaine exposure.  We know that darker hair, with more melanin, theoretically will bind more with cocaine, but this has received little study.

Therefore, a strong argument can be mounted that where the BPD relied solely on these hair tests, and these hair tests do not scientifically warrant such reliance, the BPD lacked just cause to terminate any of the appellants.

For the six successful appellants, there is also the limited remedy, extending back only to the beginning of the hearings.  If allowed to stand, this remedy would not only deprive these officers of lost earnings but also years of pension service credit – all due to no fault of their own.

While there will undoubtedly be further litigation, it is vital to recognize what has been accomplished.  Ten former officers, with the vital support of the BPPA, their union, stood up to not only their employer but also a multi-million dollar company, and six of them won.  Here is an excerpt from the Psychemedics web site:

Over the years, Psychemedics has performed millions [sic] employment-related hair tests, not including tests used in research, quality assurance, or other internal purposes. At Psychemedics, hair testing is not a sideline or one of many clinical offerings. Psychemedics specializes in hair analysis. We pioneered and developed hair testing in the workplace.

For over 25 years, Psychemedics has also successfully defended hair test results in lawsuits, union arbitrations, and government agency hearings. Our test has been routinely upheld in employment cases, where the test results generally stand alone as proof of drug use, as opposed to family court and child custody situations where the test result is usually only part of a number of pieces of evidence.

Now, there is one government agency hearing where the test results were not upheld as stand alone proof of drug use.

[1] At one point, an attorney representing Psychemedics made a caustic reference to Attorney Shapiro’s eating a bagel, perhaps under-appreciating the nutritional value of this food staple and overstating its cultural significance to his heritage.

Peabody Police Department Found to Have Violated the Law by Assigning Junior Sergeants Rather than Senior Sergeants to be Officer-In-Charge

By decision dated February 5, 2013, the Massachusetts Department of Labor Relations found that the City of Peabody violated Section 10(a)(5) and 10(a)(1) of the Law by failing to bargain in good faith when it assigned junior Sergeants rather than senior Sergeants to vacant Watch Commander (also called OIC: Officer-In-Charge) shifts without giving the Union prior notice and an opportunity to bargain to resolution or impasse.

The Peabody Police Department has three daily shifts: morning, day, and evening.  The Police Department requires that each shift have a Watch Commander or Officer-in-Charge.  When a Lieutenant is in charge on a shift, the Lieutenant is called the Watch Commander.  When a Lieutenant is absent from a shift and there are two sergeants on that shift, the Sergeant in charge is called the OIC.  For at least 20 years prior to July 5, 2009, when there was no Lieutenant on duty for a particular shift and there were two or more Sergeants on that shift, the senior Sergeant assumed the duties of Watch Commander (or OIC), making the senior Sergeant eligible for out of grade pay at the OIC level.  The Union put on two Patrol Officers and a Sergeant to testify regarding this consistent practice.   Although the Chief testified that he was “not aware of any instances of only senior sergeants always getting OIC assignments,” the hearing officer credited the Union’s witnesses, stating that they testified consistently and unequivocally in support of the long-standing practice.  The hearing officer further stated that the City failed to present additional evidence rebutting that point other than the Chief’s testimony.  As a result, the hearing officer found that the Chief authorized the assignment of junior Sergeants to the OIC position with OIC pay in violation of the Law.

The City made three arguments: (1) that there was no past practice, (2) that the Union waived its right to bargain under the managements rights clause, and (3) that the City had the right to assign who the OIC was pursuant to statute and ordinance.  The hearing officer rejected all three arguments, finding that (1) there has been a past practice, crediting the Union’s witnesses over the Chief’s testimony, (2) that the Union did not waive its right to bargain with the general management rights clause  that was in the collective bargaining agreement, and (3) that the City’s reliance on statute and ordinance was wrong because the Chief’s decision to assign junior Sergeants rather than senior Sergeants to the OIC position was outside the scope of the City’s core managerial prerogative.

The hearing officer ordered the City to cease and desist from changing the past practice of assigning senior Sergeants to the OIC position and to make whole all affected employees that suffered economic losses as a result of the City’s failure to adhere to the parties’ past practice of assigning senior Sergeants to the OIC position.  This is an important decision and reminder to all Chiefs and Police Departments that past practice must be adhered to and cannot be unilaterally changed without first bargaining in good faith with the union.