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By PORAC | December 1, 2004 | Posted in PORAC LDF News

The Post-Reinstatement Hangover Headache

Posted by Alison Berry Wilkinson

The long-awaited news arrives. You or one of your colleagues has been reinstated following a successful termination appeal. A victory is celebrated. Then come the post-reinstatement headache and the victory celebration hangover. What, you thought it was the alcohol? No – it’s the battle over what conditions the employer has a right to impose before the individual is reinstated to active peace officer status.

Thankfully, your PORAC LDF representation does not end with the reinstatement but will support you through the reinstatement process. On behalf of many of our reinstated clients over the last year, LDF has gone the extra mile to make sure that the employer does not circumvent the reinstatement by imposing subjective criteria prior to reinstatement.

The common post-appeal response to a termination that has been rescinded is for the public agency to claim that the employee must undergo a psychological or medical examination, as well as a new background examination before peace officer powers can be restored. Those are unlawful post-reinstatement conditions and are not required by the Commission on Peace Officer Standards and Training (POST).

While it is not unreasonable for an employer to require a brief “updated” background check covering the time period that the employee was absent, that background should only be to determine whether the employee was convicted of any disqualifying offenses during his or her absence.

As to the psychological and medical examinations, there is no question that an agency should ensure that its active employees are psychologically and medically able to perform their duties. But, due to the highly intrusive nature of such examinations, an employer can only order such examinations under only under limited circumstances, none of which apply to an employee reinstated after being unlawfully terminated.

Specifically, the California Code of Regulations, Title 11, Division 2 at section 1002(a) and (b) sets the minimum standards for peace officer employment required by the California Commission on POST. Pursuant to that regulation, only newly employed and lateral peace officers are required to comply with the medical or psychological examination process. The section does not apply to reinstated peace officers who were wrongfully terminated, even if the individual was absent from police work for a three year period.

Further, as the Supreme Court of another state has ruled (there is no California case directly on point), the “reversal [of the termination] was to ‘negate and render void ab initio the discharge.’” Furthermore, the officer “was entitled to be placed in a position he would have enjoyed had there been no discharge; that is, as a currently licensed active duty police officer.” The department “cannot demand a physical examination of [the officer] before reinstating [him].” Kunze v. Korolchuck, 349 N.W. 2nd 337 (Minn. 1984).

Finally, such examinations would violate the employee’s right of “mental” privacy guaranteed by Article I, Section 1 of the state Constitution. In Long Beach City Employees Assn. v. City of Long Beach, 41 Cal. 3d 937 (1986), the California Supreme Court stated that an individual’s right of privacy encompasses mental privacy, including thoughts, emotions, expressions, and personality, and that “if there is a quintessential zone of human privacy it is the mind.” Id. at 943-944. See also White v. Davis, 13 Cal. 3d 757, 775 (1975); Kees v. Medical Board, 7 Cal. App. 4th 1801, 1812—1813 (1992).

A mental examination constitutes a huge intrusion on individual privacy. As the California Supreme Court has observed, an analyst conducting a mental examination undertakes “by the careful direction of areas of inquiry to probe, possibly very deeply, into the psyche, measuring stress, seeking origins, tracing aberrations, and attempting to form a professional judgment or interpretation of the examinee’s mental condition.” Edwards v. Superior Court, 16 Cal. 3d 905, 911 (1976).

An employer should not be permitted to end-run the obligation to reinstate an unlawfully terminated peace officer by requiring reinstatement conditions that invade an employee’s personal, psychological and medical privacy. The sad truth is that employer’s try it routinely. The good news is that the offices of Rains, Lucia & Wilkinson LLP, with the support of the PORAC Legal Defense Fund, have been successful in every case and has prevented these reinstatement conditions from being imposed.