Civil Service Commission Reverses Boston Police’s Reliance On Questionable Drug Test

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 (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.

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