SJC: Positive hair drug test not enough to bypass police candidate

On Oct. 30, the state’s highest court ruled in a Civil Service case involving the bypass of an applicant for a full-time police officer position in Boston based on a hair drug test.

The Supreme Judicial Court decided that a hair drug test was not, in itself, enough to prove that a candidate had used illegal drugs.

The case began in 2010, when Michael Gannon gave a hair sample for a pre-employment drug test that came back positive for cocaine. Gannon said he never used cocaine and had previously passed multiple drug tests as a cadet with the Boston Police Department, but the department decided not to hire him.

Gannon passed the civil service exam again in 2011 and his name appeared on the state’s certified eligible list. He again gave a sample for a pre-employment hair drug test, which was negative, but the Boston Police Department bypassed him a second time.

The Human Resources Division’s Civil Service Unit provides a certification list of eligible candidates in order of examination scores to departments. Departments are expected to fill open positions from the list, and they must have a reasonable justification for bypassing a higher-ranked candidate. Bypassed candidates may appeal the decision to the Civil Service Commission, which Gannon did in 2013.

The commission must review evidence and decide whether the appointing authority met its burden of proving there was reasonable justification for the bypass. In Gannon’s case, the commission was presented with conflicting scientific evidence regarding the hair drug test. Gannon presented evidence that the scientific community has challenged the reliability of hair drug tests. The department presented evidence that the test is reliable. Gannon also testified, vehemently denying that he ever used cocaine, and the commission credited his testimony.

The Civil Service Commission determined that a hair drug test cannot be the sole reason for bypassing a candidate, because the test is not sufficiently reliable. The commission decided the Boston Police Department was unable to prove that Gannon’s bypass was reasonably justified.

The department appealed the decision to Superior Court, which reversed the Civil Service Commission’s decision, ruling that the commission had overstepped, and Gannon appealed.

The Supreme Judicial Court transferred the case on its own motion and found that the Civil Service Commission’s decision was supported by substantial evidence, that the commission had used the correct legal standard, and that, by itself, the hair drug test was not enough to prove that Gannon had used cocaine.

In the wake of this case, appointing authorities are advised to contact legal counsel prior to bypassing a candidate on a certified list if the sole reason is a positive hair drug test.