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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.
