Boston Police improperly bypassed candidate due to hair testing, SJC rules.

Byline: Kris Olson

The Civil Service Commissionruled correctly in finding that the Boston Police Department had not sufficiently demonstrated that an officer candidate had used illegal narcotics when it relied on a single disputed hair test, the Supreme Judicial Court ruled 6-1 on Oct. 30.

Superior Court Judge Elizabeth M. Fahey had ruled that the BPD had the right to base its determination on a scientifically dubious hair sample test and overturned the commission's decision.

But now the SJC has reversed Fahey's order and affirmed the commission's decision.

Appellant Michael Gannon initially became associated with BPD in 2006 when he applied and eventually became a department cadet, which he figured would serve as a stepping stone to becoming a Boston police officer. Gannon submitted hair samples for drug testing in 2006, 2007 and 2008, and each time the results were negative.

He thentook and passed the civil service examination for police officer candidates in April 2009 and submitted a hair sample for a pre-employment hair drug test in March 2010. That test came back positive for cocaine, a result that he said "completely shocked" him, having "never in [his] entire life used cocaine in any way, shape or form."

Gannon then provided a second hair sample, and while the result of that second test was not zero, it was below the level considered to be "presumptively positive." Another sample he provided in 2012 came back negative.

After learning that the 2010 positive cocaine test was a reason he had been bypassed, Gannon filed an appeal with the Civil Service Commission, which ruled in his favor.

In its appeal, the BPD argued that the commission had made an error of law by relying on a previous commission decision that reviewed the reliability of the BPD's vendor's hair drug testing and failed to support its decision with substantial evidence.

The SJC disagreed, noting that the commission "had conflicting evidence before it that placed the hair drug test's reliability in question," including the testimony of Gannon's expert.

The court added that there had been support for...

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