PAX Centurion - March / April 2013

www.bppa.org PAX CENTURION • March/April 2013 • Page 27 Civil Service overturns discharges of six Boston Police Officers Hair testing not ready for prime time Legal Notes: Alan H. Shapiro, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association I n a landmark ruling with national and even international implica- tions, 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-employ- ment 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 govern- ing 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 GraceAttorneys 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 de- cision, 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-FreeWorkplace Program. Under the hair testing protocol implemented by the Police Depart- ment, it collected a hair sample from every officer once a year, within 30 days of his/her birthday. The sample was flown to the Psyche- medics 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 posi- tive, the officer was given the opportunity to submit to Psychemedics a second hair sample, which was run through the same tests. Unbe- knownst 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 Depart- ment 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 posi- tive for illegal drugs, most for cocaine. Many accepted the 45-day suspensions and continued their careers. Some accepted the suspen- sions and were later terminated for a second positive test. Some, including seven 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 sci- entific verification of their efficacy. In other words, a positive hair test for cocaine can indicate external, atmospheric exposure, not neces- sarily 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 Ser- vice 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 plain- tiffs 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, BinghamMcCutcheon. Although the federal case was rejected at the trial level based on statistical analysis (an appeal See Overturn on page 28