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Sunday, December 15, 2019

Positive cocaine test not reliable reason for Boston PD to deny applicant

State Court

By Charmaine Little | Nov 19, 2019


BOSTON (Legal Nesline) – The Massachusetts Supreme Court has upheld the Civil Service Commission's decision that the positive result of an applicant's hair drug test was not justification enough to bypass him for employment with the Boston Police Department.

The Oct. 30 ruling states Michael Gannon's hair sample tested positive for cocaine use in 2010. Gannon alleges he has never used cocaine or been around anyone who has used cocaine. Still, his positive test was enough for him to be passed over for employment as Boston police officer three years later. 

The Civil Service Commission conducted a hearing and determined that there was a question of how reliable the hair drug test really was (the type of test is known for having false positives) and said the department didn’t have just cause in denying Gannon. The police department took the case to the Superior Court, which ruled for the department. 

Gannon and the commission appealed, and the case was transferred to the Supreme Court, which agreed with the commission.

While the police department said the commission was making it go through unnecessary hoops in explaining why it denied Gannon, the Supreme Court pointed out, “The commission merely pointed out that Psychemedic’s hair drug test procedure was not sufficiently reliable on its own to meet either standard. We see nothing in the commission’s decision indicating that it applied the ‘just cause’ standard in this case.”

The commission also took into account Gannon’s argument that he had never used cocaine. The Supreme Court pointed out he didn’t try to explain why he would have the positive, rather, he said he didn’t know how it would come back positive to begin with.

The Supreme Court also noted that the scientific industry had concerns about how reliable the drug test was, as well as the washing procedure used to get rid of extra contaminants.

Considering the concerns of reliability and Gannon’s plea, the Supreme Court agreed with the commission and reversed the Superior Court’s order that granted the department’s motion for judgment on the pleadings. The case was remanded to the Superior Court so it could affirm the commission’s ruling in favor of Gannon.

Justice Kimberly S. Budd wrote the opinion. Chief Justice Ralph Gants and Justices Barbara Lenk, Frank M. Gaziano, David A. Lowy, and Elspeth B. Cypher were present.

Justice Scott L. Kafker dissented with the ruling.

“There was no scientific evidence whatsoever in the studies or elsewhere in the record plausibly supporting Gannon’s alibi that his hair somehow had been externally contaminated with such a large amount of cocaine without his knowing," Kafker wrote. 

"By contrast, there was substantial scientific evidence ignored or downplayed by the commission and the court establishing ingestion, including, but not limited to, the magnitude of the 12.2 ng test result and the absolute zero reading for the decontamination wash of Gannon's positive hair sample, indicating an absence of external contamination."

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