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State high court: Drug test on hair not enough to disqualify Boston police candidate

The John Adams Courthouse, home to the Massachusetts Supreme Judicial Court. In a 6-1 ruling, the Supreme Judicial Court decided Michael Gannon was wrongly denied employment.Lane Turner/GLOBE STAFF FILE

Nine years after he was first denied a job as a Boston police officer because a strand of his hair tested positive for cocaine, Michael Gannon won a major legal victory Tuesday when the state’s highest court decided Gannon was wrongly denied employment.

In a 6-1 ruling, the Supreme Judicial Court agreed with the Civil Service Commission, which found that testing hair for drug use was prone to false positives and that the department offered insufficient evidence to rebut Gannon’s adamant denial of having ever used cocaine or being near someone who did.

“There was substantial evidence in the record documenting the concerns raised in the scientific community regarding the reliability of the test,’’ Justice Kimberly S. Budd wrote for the majority. “In short, although the test result could be seen as consistent with cocaine use, the opposite view is also reasonable.”


The majority stressed they were not trying to micromanage hiring decisions by police departments, and the court said police authority to conduct background checks and drug testing of applicants is not being called into question by the Gannon case.

Instead, the majority said, the court is telling municipal officials that if they want to disqualify an applicant based on a failed drug test using the controversial hair testing technique, they must provide more information than Boston police did about Gannon.

“We agree that a police department should have the discretion to determine whether it is willing to risk hiring an applicant who has engaged in prior misconduct (including one who has done so and subsequently lied about it),’’ Budd wrote. “However, where, as here, the alleged misconduct is disputed, an appointing authority is entitled to such discretion only if it demonstrates that the misconduct occurred by a preponderance of the evidence.”

The SJC upheld the commission’s decision that Gannon should have the Number 1 spot the next time the department hires new officers.


The department, which the Globe reported in 2016 had spent $1.6 million in legal fees defending the hair test in state and federal court, continues to use the test. The SJC previously sided with six officers fired after they failed the drug test based on hair samples, and supported a Civil Service Commission order that they be reinstated, the Globe reported in 2016.

According to the SJC, Gannon passed the state civil service exam in 2009 and was qualified to be hired by the department, but was turned down because of the positive cocaine test from 2010. He qualified again in 2013 and was again denied, but on the grounds his civil service score tied with another candidate who was chosen instead of him.

After being told of the negative results in 2010, Gannon submitted a second strand of hair for testing. Although the result was not zero, it was below the level considered to be “presumptively positive,” Budd wrote, and Gannon was denied a job by the department.

Gannon had previously been a police cadet from 2007 to 2009 and was tested using the same procedure for drugs in 2006, 2007, 2008 — and passed all of them.

According to the SJC, Gannon told the commission that “never in [his] entire life used cocaine in any way, shape or form, whether it be shot, sniffed, smoked, never,” that his friends do not take drugs, and that “there’s no possible way” he touched cocaine or snorted it.


Sergeant Detective John Boyle, a department spokesman, said the decision is being reviewed by the department’s lawyers and the department had no immediate comment.

In his 31-page dissent, Justice Scott L. Kafker said the test was scientifically reliable and the department was right to base its decision on the 2010 test.

“The department has a legitimate, indeed a compelling, concern about drug use and lying by its police officer candidates and need not accept a high risk of such drug use,’’ he wrote. “The test it employed to detect such a high risk was also reasonably reliable, and consistent with merit principles.”

John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.