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When A Positive Drug Test May Not Be Positive: The Questionable Reliability of Hair Analysis To Determine Illegal Drug Use in In re: Boston Police Department Drug Test Appeals

JOSEPH L. SULMAN*

INTRODUCTION

n February 2013, six former Boston police officers terminated after testing positive for cocainewere reinstated by the Massachusetts Civil Service Commission (MCSC or the Commission).1 In the same decision, In re: Boston Police Department Drug Test Appeals (In re: BPD Drug Test Appeals), the Commission affirmed the termination of four other police officers who also tested positive for cocaine use. 2 The appeal by the ten officers challenged the Boston Police Departments (BPD) practice of using hair sample analysis as the sole criteria to determine whether an officer has used illegal drugs. 3 In its 134-page opinion, the Commission did not find that the six officers, whose terminations it reversed, had not used drugs; rather, it found that hair sample analysis by itself was not sufficiently reliable to be used as the sole determinant of illegal drug use.4 The decision, not surprisingly, sparked an outcry in Boston as far up as

* Joseph L. Sulman practices Civil Rights and Employment Litigation at the Law Office of Joseph L. Sulman in Boston, Massachusetts. His firm represents Public Safety Officers before the Massachusetts Civil Service Commission.
1 Bos. Police Dept Drug Testing Appeals 130 (Commonwealth of Mass. Civ. Serv. Commn Feb. 28, 2013), http://www.mass.gov/anf/docs/csc/decisions/discipline/boston-police-drugtesting-appeals-022813.pdf; see Dave Wedge, Cops Firing for Drugs Reversed, BOS. HERALD, Mar. 7, 2013, http://bostonherald.com/news_opinion/local_coverage/2013/03/

cops_firing_for_drugs_reversed. 2 Bos. Police Dept Drug Testing Appeals at 130. 3 Id. at 12. 4 Id. at 10714.

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the Mayors office.5 After all, no one would dispute that drug use by police officers should not be tolerated: it can interfere with perception, judgment, and generally compromise the ability to protect the public. Therefore, reinstating six officers who tested positive for cocaine use does not appear to be in the public interest. At the same time, these police officers were not at-will employees, but worked under a collective bargaining agreement and were covered by the Massachusetts Civil Service Statute: Chapter 31 of the Massachusetts General Laws. Under this Chapter, a police officer can only be disciplined for just cause.6 Thus, the ultimate issue in In re: BPD Drug Test Appeals, as in any appeal of a disciplinary action under Chapter 31, was whether the hair sample drug test provided the BPD with just cause for the officers termination. This article examines In re: BPD Drug Test Appeals in the context of the history of hair-sample drug testing and drug testing of Boston police officers. In particular, this article examines the pros and cons of drug testing by hair sample analysis and why the Commission ultimately found the methodology insufficiently reliable. Finally, it will argue that ensuring the accuracy of drug testing promotes an effective police force by reducing the fear drug-enforcement officers have of testing positive for drug use based on environmental contamination and by providing necessary safeguards to ensure that a police officers reputation will not be forever marred by a false positive test. I. History of Drug Testing

Drug testing for public safety workers in the United States rose to prominence through executive orders. In 1983, the National Transportation Safety Board issued a series of recommendations, advocating the development and implementation of a meaningful alcohol and drug testing regime for railroad employees.7 In 1986, President Ronald Reagan issued Executive Order 12,564, which set forth the policy mandate for the later-enacted Drug-Free Workplace Act of 1988 (the 1988

5 See Dave Wedge, Menino Vows Fight on Cops Reinstatement, BOS. HERALD, Mar. 8, 2013, http://bostonherald.com/news_opinion/local_coverage/2013/03/menino_vows_fight_on_cops_ reinstatement.

See MASS. GEN. LAWS ch. 31, 62 (2012). Lesley Benware, Note, But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-Sector Safety-Sensitive Employees in Light of House Bill 2210, 44 SUFFOLK U. L. REV. 477, 480 (citing Letter from Jim Burnett, Chairman, Nat'l Transp. Safety Bd., to John T. Collinson, President, Balt. & Ohio R.R. Co. (Apr. 29, 1983), available at http://www.ntsb.gov/doclib/recletters/1983/r83_35_ 36.pdf).
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Act).8 The 1988 Act required the head of each federal executive agency to establish a program to test for illegal drug use by employees in sensitive positions. The extent of testing was to be determined based upon the nature of the agencys mission and its employees duties, the efficient use of agency resources, and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.9 The BPD began testing officers for drug use in 1986 after the police commissioner issued BPD Rule 111 (Rule 111).10 Random drug testing came to a screeching halt, however, as the result of a 1991 decision by the Supreme Judicial Court (SJC).11 In Guiney v. Police Commissioner of Boston, the SJC ruled that urine analysis (urine analysis or urinalysis) drug testing violated a police officers right against unreasonable searches and seizures under Article 14 of the Massachusetts Declaration of Rights.12 Notably, the SJC issued Guiney one year after it upheld a drug testing program for police cadets in OConnor v. Police Commissioner of Boston.13 In OConnor, the Court rejected a constitutional challenge to the preemployment mandatory drug testing of police cadets, based in part on the cadets consent to the drug testing as part of the application process. While some commentators have described Guiney and OConnor as contradictory,14 the distinguishing feature is that the police cadets gave written consent in OConnor to the drug testing as a condition of employment. The end result is that a police department may not impose random drug testing on its officers without their consent, although testing applicants for employment as police officers remains valid under OConnor. The BPD abandoned Rule 111 as a result of Guiney.15 Random drug testing of BPD officers now only occurs based on an agreement between

8 Drug-Free Federal Workplace, 51 Fed. Reg. 32,889 (Sept. 15, 1986) (codified at 3 C.F.R. pt. 224); see also Bos. Police Dept Drug Testing Appeals at 14.

Exec. Order No. 12,564, 51 Fed. Reg. 32,889 (Sept. 15, 1986) (codified at 3 C.F.R. pt. 224). Guiney v. Police Commr of Bos., 582 N.E.2d 523, 524 (Mass. 1991). 11 See id. at 52426. 12 Id. 13 See OConnor v. Police Commr of Bos., 557 N.E.2d 1146, 114750 (Mass. 1990). 14 Lisa A. Richards, Constitutional LawRandom Drug Testing of Police Officers Violates Article Fourteen of Massachusetts Declaration of RightsGuiney v. Police Comm'r, 411 Mass. 328, 582 N.E.2d 523 (1991), 26 SUFFOLK U. L. REV. 1168, 117576 (1992). 15 Bos. Police Dept Drug Testing Appeals 15 (Commonwealth of Mass. Civ. Serv. Commn Feb. 28, 2013), http://www.mass.gov/anf/docs/csc/decisions/discipline/boston-police-drugtesting-appeals-022813.pdf.
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the officers union and the Department.16 The BPD reached such an agreement with the Boston Police Patrolmans Association (BPPA) in 1998 as part of a memorandum of understanding ( 1998 MOU), which resulted in a modified Rule 111.17 The Commissions decision concerns testing under this modified rule. II. Hair Sample Drug Testing The science behind hair sample drug testing was examined at length in the Commissions decision, and will only be repeated here briefly. Hair cells absorb drug molecules circulating in the blood and those drug molecules are permanently embedded in the cell.18 The window of detectionthe period of prior drug use captured by a drug test is far longer in hair than in urine. This detection period in hair testing extends years into the future, which makes the methodology a significant advantage to detect drug use in scheduled, as opposed to random, drug screenings. Urinalysis has other limitations compared to hair sample analysis, including the risk of the test subject evading detection through substitution or adulteration of the specimen and the risk of human error. However, unlike urine, hair samples are susceptible to environmental contamination through external exposure. 19 That is, in addition to ingested drugs that embed into hair cells, drugs can enter the hair through passive meansexposure to the environment. Hair sample drug testing identifies and detects the drug itself and the drugs metabolites in the hair follicles. Generally, and in BPD s testing protocol specifically, the hair sample must show concentration of the drug and one or more drug metabolites above certain levels for a positive test result. The generally accepted cutoff threshold for cocaine is 5 ng of cocaine per 10 mg of hair, shown as 5 ng COC/10 mg.20 The key metabolites in cocaine are benzoylecgonine (BE), cocaethylene (CE), and norcocaine (NCOC).21 The metabolite criteria are usually shown as a percentage rather than a ratio: for example, ten percent BE. As explained below, the metabolite criteria changed frequently in the BPD testing, which was a critical factor in the Commissions decision.22 Perhaps surprisingly, drug testing by hair samples is the exception, not
16 17 18 19 20 21 22

Id. Id. at 1617. Id. at 28. Id. at 29. Id. at 32. Bos. Police Dept Drug Testing Appeals at 26, 32. Id. at 47.

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the norm, in public safety departments. At the time of the In re: BPD Drug Test Appeals decision, only the New York City Police Department used hair samples as the sole criteria in random drug testing of police officers. 23 The lack of widespread use by public safety departments is probably due to several factors, the most prominent being that the federal government has never approved hair sample analysis for drug testing in federal agencies. The Substance Abuse and Mental Health Services Administration, an agency within the Department of Health and Human Services, publishes the Mandatory Guidelines for Federal Workplace Drug Testing Programs. In its latest revision, the Mandatory Guidelines list urine analysis as the only approved modality for drug testing.24 The Mandatory Guidelines state that, with regard to alternatives to urine analysis such as hair sample testing, significant issues have been raised by federal agencies during the review process which require further examination, and may require additional study and analysis.25 The Mandatory Guidelines envision that alternatives to urine analysis, such as hair testing, would complement urine drug testing and aid in combating the risks posed by available methods of suborning urine testing through adulteration, substitution, and dilution.26 Published studies have also cautioned against relying on hair testing to determine drug use because environmental contamination may result in false positives. For instance, a 2001 study of hair sample drug testing found that a positive result should be interpreted with extreme caution and should not be used as a stand-alone means for confirming use by a person not otherwise known to be abusing drugs as opposed to having been contaminated by external or passive exposure in the natural environment.27 In fact, [i]n 2001, the United Nations drug testing task force described the state of hair testing in substantially the same way, and that opinion has not changed.28 Furthermore, in 2009, the FBI suspended hair testing in all cases (except criminal cases involving children) as a result of a United States Department of Justice commissioned study. 29 The FBI reported that its decision was based in part on the fact that exterior

Id. at 65. Mandatory Guidelines for Federal Workplace Drug Testing Programs, 73 Fed. Reg. 71,858, 71,860 (revised Nov. 25, 2008), available at http://www.gpo.gov/fdsys/pkg/FR-2008-1125/pdf/E8-26726.pdf.
24 25 26 27 28 29

23

Id. at 71,858. Id. Bos. Police Dept Drug Testing Appeals at 70. Id. Id. at 39.

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contamination of hair with cocaine hydrochloride can lead to an innocent individual being accused of cocaine use.30 In addition, although not related to drug testing, the FBI recently announced that hair sample analysis is not as precise as previously thought to identify criminal suspects.31 III. Civil Service Law The BPD, like many police and fire departments in Massachusetts, operates under Chapter 31 of the Massachusetts General Laws. Among other rights, procedures, and obligations, Chapter 31 establishes eligibility requirements for public safety positions, examination procedures, and procedures to challenge disciplinary actions. Under Chapter 31, Section 43, a public safety officer cannot be disciplined or terminated without just cause. A public safety officer who receives discipline, up to and including termination, has the option of grieving the discipline through his or her collective bargaining agreement or filing an appeal directly with the Civil Service Commission. A disciplinary action under Chapter 31 will be upheld if it is based on just cause: done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced, mind guided by common sense and by correct rules of law.32 IV. In re: BPD Drug Testing Appeals A. Factual History Under the 1998 MOU, the patrol officers union acknowledged the importance of a workplace that is one-hundred percent drug free and that the BPD had not yet achieved this goal. To achieve the intended goal, Rule 111 was modified, effective January 1, 1999, so that each officer in the BPPA would receive a drug test through a fair, reasonable, and objective hair analysis on or within thirty calendar days of his or her birthday. 33 The BPD agreed to establish and adhere to written collection and testing

Id. Editorial, FBI Action on Hair Analysis Should Spur Response Here, 42 MLW 166, 46 (Sept. 9, 2013), available at http://masslawyersweekly.com/2013/09/05/fbi-action-on-hair-analysisshould-spur-response-here/. 32 Cambridge v. Civil Serv. Commn, 682 N.E.2d 923, 926 (Mass. App. Ct. 1997) ( quoting Selectmen of Wakefield v. Judge of First Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928)); see MASS. GEN. LAWS ch. 31, 43 (2010).
31 33

30

Bos. Police Dept Drug Testing Appeals at 16.

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procedures for hair samples.34 These written procedures were to be appended under Rule 111 and become incorporated therein.35 Rule 111 includes detailed procedures that must be followed for hair testing. Among other safeguards, the rule requires that a certified laboratory conducts the hair testing and that officers who test positive be given a safety net test within seventy-two hours of the test result.36 Rule 111 also spells out the consequence of a positive test: it subjects an officer to termination.37 However, an officer who receives a positive test for the first time is given the chance to accept an alternative program consisting of one of the following: a suspension up to forty-five days (although elsewhere the rule provides for only a maximum five-day suspension); submission to a rehabilitation and treatment program; placement in an administrative position following the suspension pending certification by the treatment provider; or submission to random drug tests for up to thirty-six months.38 The BPD retained the firm Psychemedics to perform its hair sample drug testing. Psychemedics is by far the industry leader in hair sample drug testingits founder was one of the original researchers who developed the procedure for such testing. 39 The BPD and BPPA agreed to certain procedures for cutoff thresholds for drug tests and safety-net processes, including a requirement that three hair samples be taken simultaneously: two for Psychemedics and one to be retained by BPD. The two hair samples taken by Psychemedics must test positive within a certain range of each other to be valid, and the procedures permit an officer to have the third sample tested at his or her own expense. 40 The cutoff thresholds proved to be a significant factor in the decision. Pyschemedics cutoff threshold for cocaine was consistently set at 5 ng/10 mg COC.41 The metabolite criteria, however, changed frequently. Of the most critical changes, Psychemedics decreased the BE concentration necessary for a positive result from 10% to 5% in 2001.42 Thus, prior to 2001, a BPD officer must have shown 5 ng/10 mg cocaine and ten percent BE concentration to test positive for cocaine. In 2001 and after, a BPD officer

Id. Id. at 17. 36 Id. at 19. 37 Bos. Police Department Rules and Procedures, R. 111 VI (Dec. 17, 1998), available at http://www.cityofboston.gov/images_documents/rule111_tcm3-9570.pdf.
35 38 39 40 41 42

34

Id. Bos. Police Dept Drug Testing Appeals at 35. Id. at 23. Id. at 107. Id. at 115.

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would test positive for cocaine with a 5 ng/10 mg COC and five percent BE concentration.43 Thus, the same officer with the same exact hair sample could test negative in 2000 and positive in 2001. This is what occurred with several of the appellants. All ten of the officers involved in the appeal tested positive at some point for cocaine. The four officers whose terminations were affirmed had other factors in addition to the positive drug test that supported the BPD s decision. One of the officers, Officer Thompson, was on disability leave at the time of the positive test result all but eliminating the risk of external contamination; a second officer, Officer Bridgeman, did not testify credibly before the Commission about the reason for his contamination; a third officer, Officer Bridgeforth, had tested positive previously and his positive test at issue was significantly above the cutoff threshold; the fourth, Officer Guity, did not testify credibly about the source of his contamination and tested well above the cutoff threshold.44 The Commission reversed the termination of six officers because the only factor that supported their terminations was the positive hair sample drug tests. The six officers testified credibly and presented reliable evidence about the potential reasons for their positive tests, which included the following: possible sources of contamination, negative or inconclusive follow-up tests, and how the changing metabolite criteria influenced their results depending on whether each was tested before or after the change. Underlying each officers case was the Commissions finding that the hair sample drug testing was not sufficiently reliable to be used as the sole criteria to determine whether an officer should be terminated for illegal drug use. B. The Commissions Basis For Rejecting Hair Sample Drug Testing The Commission held that hair testing for drug use was not sufficiently reliable to be used as the sole criteria to determine whether an officer should be terminated for using illegal drugs. Underlying the holding was the uncertainty about the efficacy of current decontamination strategies and metabolite criteria to rule out all real-world contamination scenarios.45 Effective decontamination of hair samples is a critical issue for police officers whose assignments entail regular contact with drug users. The BPD did not dispute that these officers duties presented a risk of external

43 44 45

Id. at 107, 115. Id. at 75, 8384, 8687, 9194. Bos. Police Dept Drug Testing Appeals at 108.

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contamination, and that those risks remain a serious issue. The BPD offered testimony to show that Psychemedics employed a uniquely sophisticated technique to decontaminate hair samples of drug traces from external exposure, such that it removed all doubt regarding the source of drug contaminants found in hair follicles.46 The Commission also reviewed several studies about hair contamination from external sources, for instance, highlighting a 1997 article about hair contamination of municipal narcotics police officers and evidence room clerks.47 The article found that after decontamination, none of these hair samples tested above the cutoff threshold. However, nearly all of the decontamination procedures (i.e., washing the hair) showed that drugs were indeed present in the hair samples. This led the Commission to conclude that the hair of police officers who come in regular contact with drug users is more likely to be contaminated from non-ingestion than the hair of the general public.48 The most effective decontamination strategy remains debated. The Commission noted:
[T]he documented concern in the scientific community that not enough is known about real-world drug exposure, and the mechanisms for incorporation into, and extraction from hair, to permit the inference that an innocent person who has been externally contaminated by exposure to street cocaine and cocaine users in a real world setting will always be identified as a non-user.49

It also found the metabolite criteria problematic because a scientific consensus has not been reached regarding the concentration of metabolites that reliably and conclusively confirms a hair test as positive for cocaine ingestion. The determination of a metabolite ratio rests on judgment. More problematic for the Commission was Psychemedicss repeated changes to its metabolite ratio. This lack of consistency and reliability in the testing program, combined with the other issues raised by hair sample drug testing, led the Commission to find that hair sample drug testing alone cannot provide irrefutable proof that an officer used cocaine. V. Solutions for the Future The BPD must find a way to detect illegal drug use by its officers in a manner that assures consistency and reliability. The Commissions decision provides a road map for how to do this. BPD hair sample testing has a

46 47 48 49

Id. at 3, 67, 69. Id. at 54. Id. at 55. Id.

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legitimate place in narrowing down which of its few officers may reasonably be suspected of abusing illegal drugs . . . .50 The reliance on the tests as the sole criteria for establishing drug use as a basis for termination remains a problem. In reversing six of the terminations while affirming four, the Commission reviewed the test results together with other probative evidence of drug use. There is no reason why the BPD cannot employ a similar procedure. For example, the BPD could employ hair sample tests to identify those officers who need further investigation for drug use, and follow up with confidential internal investigations for such officers. The need for confidentiality in internal investigations is paramount and explains why the Commissions decision was correct. With forethought and planning, the BPD should be able to develop a testing protocol that detects illegal drug use to a satisfactorily accurate degree. Police officers assigned to narcotics must be able to perform their duties without being hindered by a fear that exposure to illegal drugs could cause them to test positive for drug use. The slightest risk of this could cause an officer to hesitate when assigned to infiltrate drug gangs, engage in undercover drug purchases, or search for illegal drugs. Moreover, an officer falsely labeled as a drug user, and terminated as a result, will have his or her reputation forever tarnished. Absent a lengthy and costly appeal process, the officers law enforcement career will most likely be over. It is certainly conceivable for the BPD to spend millions of dollars and countless hours to develop a new drug-testing protocol that still presents a risk of false positives. If that occurs, the BPD will at least have a strong argument that its drug-testing protocol is the best available option to protect officers against false allegations of drug use. Until the BPD creates an entirely new drug testing protocol, however, the Commissions reasoning remains sound. Additional factors must be considered beyond a simple positive test to reduce the risk of a false positive and prevent, or at least diminish, the severe repercussions of such a result.

50

Bos. Police Dept Drug Testing Appeals at 114.