PAX Centurion - March / April 2013

Page 28 • PAX CENTURION • March/April 2013 617-989-BPPA (2772) is pending), the work of these attorneys provided valuable discovery that we were able to utilize in the civil service appeals. By the time the Commission began the 18 days of hearing in October 2010, additional scientific evidence and other developments further challenged the efficacy of hair testing as a “stand alone” employment test. Scientific studies done under grants by the U.S. De- partment of Justice caused the FBI to suspend using hair testing in all cases, except criminal cases involving children. In addition, in 2008, after four years of study, the federal agency charged with overseeing the federal workplace drug programs rejected hair testing, leaving only urine testing as the approved testing modality. Of enormous assistance toAttorneys Shapiro and Rubin at San- dulli Grace were two expert witnesses: Dr. Douglas Rollins and Dr. J. Michael Walsh. Dr. Rollins, in addition to publishing numerous scientific papers regarding the incorporation of drugs into hair, had served as the medical review officer for drug testing in the 2002 Salt Lake CityWinter Olympics. Dr. Walsh served in both the Reagan and Clinton administrations and was an important contributor to the design and implementation of the federal workplace drug program. Dr. Walsh’s company has since gone on to consult with numerous industries, including the National Football League. Both experts chal- lenged the BPD’s use of hair testing as a “stand alone” measurement. Neither believe that hair testing has yet advanced to the level that, solely based on a hair test, an employer can conclusively state that an employee has ingested cocaine and proceed to fire him/her. The Com- mission gave great weight to the testimony of these two scientists. Supporting the BPD’s hair tests were Dr. Thomas Cairns, an employee of Psychemedics, and Dr. Leo Kadehjian, “a biochemist, with no direct drug testing experience or research credentials.” [Deci- sion at ¶131]. Although the decision did approvingly cite some of Dr. Kadehjian’s testimony, Commissioner Stein flatly rejected some of this expert›s opinions: Where, however, theAppellants showed that the underlying source material on which Dr. Kadehjian relied did not support his opinions, I give those particular opinions no weight. For example, Dr. Kadehjian opined in his initial expert report that the SAMHSA “published” procedures for hair drug testing that, although not “formally imple- mented,” have “recognized the utility of hair as a suitable specimen… with the same level of confidence that has been applied to the use of urine.” The evidence showed that this opinion was hyperbole, at best, and possibly could be called misleading. Similarly, Dr. Kadehjian opined that “the United Nations has recognized the role of hair drug testing… and has provided hair testing guidelines.” In fact, the role that the UN recognized for hair drug testing was as “a complemen- tary test for urinalysis”, not as a stand-alone test. Dr. Kadehjian’s outdated opinions about the scientific consensus CE as a distinct metabolic marker of ingestion were noted in the findings above on that subject. [¶132] Sifting through the scientific evidence with extraordinary precision and intellectual energy, Commissioner Stein eventually concluded that while the Psychemedics hair tests could provide some evidence of illegal drug use, sole reliance on them as the basis for discharge does not meet the requisite “just cause” standard of the civil service law. This finding has enormous consequences. To date, we are un- aware of any other case where the reliability of hair testing has been challenged, examined and litigated as it was in this case. Psychemed- ics Corporation undoubtedly understood what was at stake, since a mini-phalanx of its executives and attorneys faithfully attended the hearings. 1 Where the decision breaks down is in the final result. After find- ing that these hair tests did not suffice to establish just cause for discharge, the Commissioner parsed the extremely skimpy record to decide who should be believed and who not believed with respect to ingesting cocaine. While a penetrating investigation might have been a valid inquiry by the BPD when it fired these officers between six and eleven years ago, it had never been done. The BPD stipulated that the only reason it fired these officers, many of whom had spotless personnel records, some of which included medals for heroism, were the Psychemedics test results. Asked on the stand to speculate why they may have tested posi- tive, some appellants recited situations where they had come into con- tact with cocaine, either at work or other locations. In finding some of these explanations not credible, the Commission essentially was forc- ing the appellants to prove their innocence rather than insisting the BPD prove just cause. There is no reliable scientific article which has yet to study, let alone pinpoint, the specific mechanisms by which co- caine permeates human hair. Just as we know that cigarette smokers contract lung cancer in far greater percentages than non-smokers, we also know that some non-smokers also get lung cancer. So too, we do not know why some react more than others to environmental cocaine exposure. We know that darker hair, with more melanin, theoretically will bind more with cocaine, but this has received little study. Therefore, a strong argument can be mounted that where the BPD relied solely on these hair tests, and these hair tests do not scientifi- cally warrant such reliance, the BPD lacked just cause to terminate any of the appellants. For the six successful appellants, there is also the limited remedy, extending back only to the beginning of the hearings. If allowed to stand, this remedy would not only deprive these officers of lost earn- ings but also years of pension service credit – all due to no fault of their own. While there will undoubtedly be further litigation, it is vital to recognize what has been accomplished. Ten former officers, with the vital support of the BPPA, their union, stood up to not only their em- ployer but also a multi-million dollar company, and six of them won. Here is an excerpt from the Psychemedics web site: Over the years, Psychemedics has performed millions [sic] employment-related hair tests, not including tests used in research, quality assurance, or other internal purposes. At Psychemedics, hair testing is not a sideline or one of many clinical offerings. Psychemedics specializes in hair analysis. We pioneered and developed hair testing in the workplace. For over 25 years, Psychemedics has also successfully defended hair test results in lawsuits, union arbitrations, and government agency hearings. Our test has been routinely upheld in employment cases, where the test results generally stand alone as proof of drug use, as opposed to family court and child custody situations where the test result is usually only part of a number of pieces of evidence. Now, there is one government agency hearing where the test results were not upheld as stand alone proof of drug use. 1 At one point, an attorney representing Psychemedics made a caustic reference to Attorney Shapiro’s eating a bagel, perhaps under-appreciating the nutritional value of this food staple and overstating its cultural significance to his heritage. Civil Service overturns discharges of six Boston Police Officers From Overturn on page 27