Thompson v. Civil Service Commission

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15-P-330 Appeals Court
PRESTON THOMPSON & others1 vs. CIVIL SERVICE COMMISSION &
another2 (and a companion case3).
No. 15-P-330.
Suffolk. May 10, 2016. - October 7, 2016.
Present: Cypher, Blake, & Henry, JJ.
Civil Service, Police, Termination of employment, Testing,
Reinstatement of personnel, Decision of Civil Service
Commission. Labor, Police, Collective bargaining,
Discharge. Municipal Corporations, Police, Collective
bargaining. Police, Discharge, Collective bargaining.
Public Employment, Police, Collective bargaining,
Termination, Reinstatement of personnel. Administrative
Law, Substantial evidence. Damages, Back pay.
Civil actions commenced in the Superior Court Department on
April 3, 2013.
1
Richard Beckers, Ronnie Jones, Jacqueline McGowan, Oscar
Bridgeman, Shawn Harris, Walter Washington, William Bridgeforth,
George Downing, and Rudy Guity.
2
Boston Police Department.
3
Boston Police Department vs. Ronnie C. Jones, Richard
Beckers, Shawn Harris, Jacqueline McGowan, Walter Washington,
George Downing, and the Civil Service Commission. The two cases
were consolidated below for decision.
2
After consolidation, the case was heard by Judith
Fabricant, J., on motions for judgment on the pleadings.
Alan H. Shapiro (John M. Becker with him) for Preston
Thompson & others.
Helen G. Litsas for Boston Police Department.
Amy Spector, Assistant Attorney General, for Civil Service
Commission.
BLAKE, J. Between 2001 and 2006, ten officers of the
Boston police department (department) submitted hair samples to
the department that tested positive for cocaine. In response,
the department terminated their employment. The ten officers
appealed the terminations to the Civil Service Commission
(commission). After extensive hearings, the commission issued a
decision upholding the terminations of Preston Thompson, Rudy
Guity, Oscar Bridgeman, and William Bridgeforth (hereinafter,
four officers), and overturning the terminations of Richard
Beckers, Ronnie Jones, Jacqueline McGowan, Shawn Harris, Walter
Washington, and George Downing (hereinafter, six reinstated
officers or six officers), who were ordered to be reinstated
with back pay and benefits to the date the commission hearings
commenced.
The department and each of the ten officers filed a
complaint for judicial review.4 A judge of the Superior Court
4
The six reinstated officers sought judicial review only
with regard to the back pay and benefits aspects of the
commission decision.
3
affirmed the commission's decision, modifying only the back pay
and benefits awards for the six reinstated officers to the date
of each of their respective terminations. The four officers
appeal, claiming that the department lacked just cause for their
terminations. The department cross-appeals, claiming that there
was substantial evidence to warrant the termination of the six
reinstated officers.5 We affirm.
Background. 1. Legal framework. A tenured civil service
employee who is aggrieved by a disciplinary decision of an
appointing authority may appeal to the commission. See G. L.
c. 31, § 41. After finding facts anew, the commission then must
determine, by a preponderance of the evidence, whether the
appointing authority met its burden of proof that there was just
cause for the action taken. See Massachusetts Assn. of Minority
Law Enforcement Officers v. Abban, 434 Mass. 256, 260 (2001);
Falmouth v. Civil Serv. Commn., 447 Mass. 814, 823-824 (2006).
We, in turn, need only inquire whether the commission's decision
was "legally tenable," accepting the commission's factual
determinations unless they are unsupported by "substantial
evidence on the record as a whole." Commissioner of Health &
Hosps. of Boston v. Civil Serv. Commn., 23 Mass. App. Ct. 410,
5
The commission and the six reinstated officers did not
appeal the judgment of the Superior Court.
4
411 (1987). See Andrews v. Civil Serv. Commn., 446 Mass. 611,
615-616 (2006).
2. Commission decision. The commission conducted hearings
over eighteen days between October, 2010, and February, 2011, at
which it received 202 exhibits and heard oral testimony from
expert witnesses, each of the officers, and additional fact
witnesses called by both sides. On February 28, 2013, the
commission issued a comprehensive 132-page decision. We
summarize the relevant portions of that decision as follows,
reserving other facts for later discussion.
The ten officers are members of the Boston Police
Patrolmen's Association (union). Rule 111, incorporated in the
collective bargaining agreement (CBA) between the union and the
department, provides for annual hair testing for drugs as part
of the department's substance abuse policy.6,7 Under rule 111,
6
A prior version of rule 111 provided for random
urinalysis; this version was abandoned following the issuance of
Guiney v. Police Commr. of Boston, 411 Mass. 328, 329 (1991).
7
Rule 111 provides, in relevant part:
"V. TESTING
"Sworn personnel of the Boston Police Department
will be tested for drugs and/or alcohol under the
following circumstances: . . .
"G. Annual Drug Testing (Hair) . . . . [T]he parties
agree that all sworn personnel shall be subject to an
annual drug test to be conducted through a fair,
reasonable, and objective hair analysis testing system.
5
an employee "will be subject to termination" for a positive test
result unless it is the officer's first violation. In that
circumstance, the department shall offer the officer voluntary
submission to a rehabilitation program. See note 7, supra. The
notices of termination of each of the ten officers cited a
violation of rule 111.8
Prior to its implementation, the hair testing program was
the subject of extensive meetings and research within the union
Each Officer shall submit to an annual test on or within
thirty (30) calendar days of each Officer's birthday. . . .
"The Department agrees that it will establish and
adhere to written collection and testing procedures for
hair samples. These procedures shall be fair and
reasonable so as to ensure the accuracy and integrity of
the test and process. . . .
"VI. CONSEQUENCES OF A POSITIVE TEST
"ILLICIT DRUGS
"Sworn personnel who receive a verified positive test
result for illicit drugs will be subject to termination.
However, where the Officer's only violation is a positive
test for illicit drug use and it is the Officer's first
offense, the Commissioner shall offer voluntary submission
to the following alternative [rehabilitation] program:
. . . .
"VII. CONSEQUENCES OF VIOLATION OF THE POLICY
"Any violation of the Substance Abuse Policy shall
lead to disciplinary action up to and including
termination. The severity of the action chosen will depend
on the circumstances of each case."
8
The notices also cited violations of rules related to the
conduct of department personnel and conformance to laws, based
on the same positive hair test result.
6
and the department. As part of that process, both the
department and the union met with the legal counsel and a
scientist from Psychemedics, Inc. (Psychemedics), the company
eventually chosen to perform the testing, which provided
assurances that its testing was "state of the art" and could,
with respect to any particular drug, distinguish between
voluntary ingestion and environmental exposure. The two sides
also agreed on a number of essential elements of the program,
including the appropriate "cutoff level," representing the
minimum amount of a drug in a person's system required to
trigger a positive test result for ingestion, and the
availability of a second "safety net" retest.
A threshold issue before the commission was the scientific
reliability of the hair testing, and its ability to distinguish
between voluntary ingestion and environmental exposure. The ten
officers and the department held competing views as to whether
the testing alone was reliable enough to establish just cause
supporting the officers' terminations. In support of their
position, the ten officers called two expert witnesses, while
the department opposed with its own panel of experts, including
Dr. Thomas Cairns, a long-time employee and scientist at
7
Psychemedics.9 Ultimately, the commission found that the hair
testing methodology was not sufficiently reliable to be the sole
basis for an officer's termination, concluding that "[a]
reported positive test result . . . is not necessarily
conclusive of ingestion and, depending on the preponderance of
evidence in a particular case, may or may not justify
termination or other appropriate discipline of a tenured
[department] officer." Nonetheless, the commission found that
hair testing is an appropriate tool to enforce the department's
substance abuse policy and that hair test results could be used
as some evidence of drug use.10,11
Turning to whether just cause had been established in the
present case as to the ten officers, as noted, the commission
allowed them a full opportunity to present evidence refuting
their positive test results. Taking that evidence, in addition
to the positive test results, the commission considered each
individual officer's credibility based on his or her testimony
9
Cairns had worked for Psychemedics since 1995. At the
time of the commission hearings, he was its vice-president for
research and development.
10
The commission also found that the testing was conducted
with "reasonable scientific accuracy" and "an impressive variety
of quality control procedures," and that hair testing allows for
a greater window of detection beyond urine and blood testing,
which is limited to the hours or days following ingestion.
11
In a concurring decision, three commissioners opined that
a positive hair test was sufficiently reliable to create a
rebuttable presumption that the officers ingested cocaine.
8
before the commission, any officer's refusal to acknowledge drug
use by refusing the rehabilitation program, any absence of prior
positive drug test results, and any officer's decision to obtain
independent hair or other drug tests. Based on its review of
this evidence, the commission found that the additional evidence
presented by the six officers outweighed the positive test
results and ordered them reinstated with back pay from the date
the hearing commenced, October 21, 2010. The commission took
the converse view as to the remaining four officers and upheld
their terminations.
3. Superior Court decision. On April 3, 2013, the ten
officers and the department each filed separate complaints in
the Superior Court seeking judicial review of the commission's
decision.12 See G. L. c. 30A, § 14. The department sought
relief on the basis that (1) the commission had incorrectly
found that positive hair tests alone were insufficient to
support a termination, (2) the commission had ignored the
language of the CBA in reaching its conclusion, and (3) the
commission's decision as to the six officers was unsupported by
substantial evidence. The four officers challenged the
commission's authority to act on any ground other than the
unreliable hair test results, and also claimed that the decision
12
The cases were later consolidated for decision in the
Superior Court. See note 3, supra.
9
was not supported by substantial evidence. The six officers
argued that they were entitled to back pay and benefits
commencing from the date of their individual terminations.
In a detailed and thoughtful decision, the judge affirmed
the commission's decision, with the exception of the back pay
and benefits awards. On that point, the judge agreed with the
six officers and ordered modification of the remedy accordingly.
The department and the four officers now appeal to this court,
restating the arguments they presented in the Superior Court.
The department additionally challenges the judge's modification
of the back pay and benefits awards.
Discussion. 1. Implication of a positive test. Both the
department and the four officers maintain that the commission
erred in the weight it afforded the positive hair test results.
The department, on the one hand, argues that under the
preponderance of the evidence standard, a positive test result
alone is enough to terminate an officer's employment. The four
officers, on the other, claim that because the notices of
termination specified only a positive hair test, once the
commission found that the hair testing by Psychemedics was not
sufficiently reliable to be the sole basis for termination, the
hearings should have concluded and the ten officers should have
been reinstated. Both arguments demonstrate a misunderstanding
of the scope of the commission's review under G. L. c. 31, § 43.
10
As we stated supra, when a case comes before the
commission, it hears evidence and finds facts anew. In
undertaking this process, the commission is not limited to the
evidence that was before the appointing officer, but may
consider any and all evidence before the commission that it
considers relevant. See Sullivan v. Municipal Ct. of the
Roxbury Dist., 322 Mass. 566, 572 (1948) (interpreting earlier
version of § 43). See also Leominster v. Stratton, 58 Mass.
App. Ct. 726, 727-728 (2003) (question is whether, on facts
found by commission, "there was reasonable justification for the
action taken by the appointing authority in the circumstances
found by the commission to have existed when the appointing
authority made its decision" [citation omitted]).
Here, after an exhaustive inquiry on the scientific
reliability of the Psychemedics hair testing methodology, the
commission reached the conclusion that a positive test was not
conclusive on the question of voluntary ingestion, as the
positive test may also represent sample contamination by
environmental exposure. In other words, the commission found
that the risk of a false positive test was great enough to
require additional evidence to terminate an officer for just
cause.13 That conclusion is well supported by the record, which
13
In its decision, the commission states: "given the
uncertainty about the efficacy of current decontamination
11
includes evidence of shifting cutoff levels through the years
since the testing had been implemented, a lack of general
acceptance in the scientific and law enforcement communities,14
and a lack of universally recognized industry standards. Having
reached that conclusion, the commission logically proceeded to
examine and to weigh the other evidence available either
supporting or refuting ingestion on the part of each officer,
applying the preponderance of the evidence standard, and to make
a decision as to each officer accordingly. In doing so, the
commission patently did not, as the department claims, assign to
it an "elevated burden of proof."
As to the written notices of termination, the rationale
provided is not as narrow as the four officers suggest. "[A]
decision of the commission is not justified if it is not based
on the reasons specified in the charges brought by the
strategies and metabolite criteria to rule out all real-world
contamination scenarios, hair test results cannot be used in
rote fashion as a conclusive and irrefutable means to terminate
a [department] officer on the premise that such testing is
'generally accepted' as reliable."
14
For example, the commission noted that "[d]espite more
than a decade of study and a clear federal policy against drugs
in the workplace, the [Substance Abuse and Mental Health
Services Administration, the Federal agency charged with
improving quality and availability of prevention, treatment, and
rehabilitative services with respect to substance abuse and
mental illness] has declined to approve hair testing as a
modality for detection of illicit drugs by employees of the
federal government and those employed in the private sector that
are subject to federal oversight."
12
appointing authority." Murray v. Second Dist. Ct. of E.
Middlesex, 389 Mass. 508, 516 (1983). Here, a reasonable
officer would have understood that the reason he or she was
facing termination was for violating department rules and
regulations related to substance abuse, with the positive hair
test result as evidence supporting the violation. See McKenna
v. White, 287 Mass. 495, 498 (1934) (notice meant to "enable the
removed officer or employee to know why he has been deemed
unworthy to continue longer in the public service"). The
commission accordingly properly examined all of the evidence
related to whether there was a violation of rule 111, not simply
the positive hair test result.
2. Language of the CBA. The department argues that the
commission "usurped the [d]epartment's independent judgment and
bargaining autonomy" by ignoring the controlling language of
rule 111, incorporated in the CBA, which provides that an
officer may be terminated based solely on a positive hair test.
The commission decision, however, reveals a direct conflict
between the CBA and the civil service law: namely, that while
G. L. c. 31, §§ 41 and 43, permit termination only for just
cause, see Massachusetts Assn. of Minority Law Enforcement
Officers v. Abban, 434 Mass. at 260, the CBA allows the
appointing authority to terminate even when the test result may
not reflect actual misconduct. In those circumstances, the
13
commission ruled that, despite the provisions of the CBA, more
evidence than a positive hair test was needed to demonstrate
just cause. We agree that the statute controls.
"When possible, we attempt to read the civil service law
and the collective bargaining law, as well as the agreements
that flow from the collective bargaining law, as a 'harmonious
whole.'" Fall River v. AFSCME Council 93, Local 3177, AFL-CIO,
61 Mass. App. Ct. 404, 406 (2004), quoting from Dedham v. Labor
Relations Commn., 365 Mass. 392, 402 (1974). Where there is a
conflict, however, as here, the civil service law controls as it
"is not one of the statutes enumerated in G. L. c. 150E, § 7(d),
and, therefore, may not be superseded by a collective bargaining
agreement." Fall River v. Teamsters Union, Local 526, 27 Mass.
App. Ct. 649, 651 (1989). See Dedham v. Dedham Police Assn.
(Lieutenants & Sergeants), 46 Mass. App. Ct. 418, 420 (1999).
3. Substantial evidence. Both the department and the four
officers challenge the evidence supporting the commission
decision. To withstand review, the decision must be supported
by substantial evidence. See G. L. c. 30A, § 14(7).
Substantial evidence is defined as "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." Boston Gas Co. v. Assessors of Boston, 458 Mass.
715, 721 (2011), quoting from Tennessee Gas Pipeline Co. v.
Assessors of Agawam, 428 Mass. 261, 262 (1998). See G. L.
14
c. 30A, § 1(6). In our review of the administrative record, we
defer entirely to the commission on issues of credibility and
the weight to be accorded to the evidence. See Hickey v.
Commissioner of Pub. Welfare, 38 Mass. App. Ct. 259, 262 (1995).
The standard was met here.
With great precision, the commission carefully analyzed
each officer's individual case in reaching the determination
that the department had met its burden as to the four officers,
but not as to the six reinstated officers. In doing so, a
divergent pattern of evidence emerged in the decision as to
three factors: the level of cocaine present in the positive
test, independent hair test results, and credibility. As to the
four officers, each of their initial tests and each of their
safety net retests were positive at levels well above the cutoff
level.15 Two of the four officers had no independent hair
testing following the initial positive test, while a third
prevaricated in his testimony on the issue, finally admitting
that his independent hair test was positive. Lastly, as to each
of the four officers, the commission found the testimony in
15
For instance, Thompson's initial test showed a level of
cocaine three times the cutoff level; Bridgeforth's initial test
was two times the cutoff level.
15
support of their denials to lack credibility.16 In contrast,
each of the six officers had initial cocaine levels that were
barely above the cutoff limit17 and each presented evidence of
negative independent hair tests. As to credibility, the
commission found that the six officers each presented a credible
denial of drug use based on their testimony and any additional
supporting evidence.18 In sum, the evidence amply supported the
commission decision.
4. Back pay and benefits awards. General Laws c. 31,
§ 43, as appearing in St. 1981, c. 767, § 20, provides that, if
the commission reverses the action of the appointing authority,
"the person concerned shall be returned to his position without
loss of compensation or other rights." Here, the commission
ordered the reinstatement of the six officers retroactive to
October 21, 2010, the date the parties appeared ready to
commence the evidentiary hearings before the commission. In so
doing, the commission found that there were unique circumstances
16
For the officer whose positive independent hair test
"slipped his mind," the commission described his testimony on
that issue as "a mortal wound on his credibility."
17
As to five of those officers, under prior cutoff levels,
their initial test results would have been negative.
18
Contrary to the department's suggestion, no additional
expert testimony was needed to disprove that ingestion was the
cause of the officers' positive initial tests. That argument
ignores the fact that the expert evidence presented showed that
the test, itself, was unreliable, thus requiring further
inquiry.
16
warranting deviation from § 43, including unusual delay, the
lack of a claim by the officers of political or improper motive,
and the failure of some officers to attempt to find new
employment.
In modifying the order, the judge correctly explained that
where the legislative directive is clear and unequivocal, as it
is in § 43, no exceptions, however worthy, may be applied. See
Garrison v. Merced, 33 Mass. App. Ct. 116, 118 (1992) ("The
distinction between words of command and words of discretion,
such as 'shall' and 'may' have been carefully observed in our
statutes"). Therefore, once the commission reversed the
decision of the appointing authority as to the six officers,
under the "shall" language of § 43, the commission was required
to return each of them to his or her position without loss of
compensation or other rights. Accordingly, the six officers are
entitled to reinstatement with back pay and benefits retroactive
to each officer's termination date.
Judgment affirmed.