Clovis Officer Successfully Appeals Discipline

Posted on Thursday, October 01, 1998 at 12:00PM

A Clovis police officer, with the aid of PORAC Legal Defense Fund attorneys Bennett & Sharpe, Inc., successfully appealed an allegation that he was insubordinate in refusing to attend counseling.

The matter began as a domestic quarrel, resulting in a report by the officer’s wife that he had assaulted her. The department unfounded the allegation, finding that no assault had taken place, but ordered the officer to attend counseling with the department psychologist, based on a “feeling” by the investigating officer that counseling was appropriate.

The department psychologist, in what might be perceived as a self-serving move, notified the department that the officer should continue counseling with him. He further notified the chief that if the officer did not attend counseling, he would recommend a fitness for duty evaluation.

For various reasons, including cultural ones, the officer found himself unable to cooperate with the appointments, some of which was due to scheduling changes. The department then proposed to suspend the officer for insubordination, for failing to attend counseling sessions.

Relying in part on the American’s With Disabilities Act, the officer’s LDF attorney, Barry J. Bennett, questioned whether the department had a right to require a medical or psychological examination based merely on someone’s “feeling,” however well-intentioned, that the officer required counseling.

The officer further questioned whether or not he was “insubordinate” in refusing a psychologist’s directive that he attend further counseling sessions, even where the department adopted that as its own directive. The officer was sent for a fitness for duty examination, and was found to be fit for duty.

In fact, his record with the department through this period was exemplary. Ultimately, the department granted the officer’s appeal, and agreed that there was no basis for mandating attendance at counseling sessions.

While the case was somewhat unusual, hopefully the provisions of the ADA will be of assistance to other officers who are made subject to unreasonable orders concerning attendance at medical or psychological examinations or treatment.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.