Arbitration Decision Explores Role Of Fitness Evaluations In Disciplinary System

Police Chief Darren Raney of the Livingston, Montana Police Department became concerned that Officer Matt Tubaugh was displaying a tendency for what Raney called “contempt of cop,” perceiving behavior by suspects to be disrespectful or insufficiently deferential, responding with charges such as disorderly conduct, resisting arrest, obstruction, or assaulting an officer. Raney reviewed a number of criteria in which he compared Tubaugh’s performance to that of other police officers for a two-year period of time, and found the following:

  1. With nine use of force reports, Tubaugh had generated the second highest number of use of force reports in the Department (out of ten officers). The departmental average of use of force reports was one report per 21 arrests. Tubaugh had one report per 20 arrests.
  2. Tubaugh issued 19 obstructing charges, with other officers issuing from zero to 11.
  3. Tubaugh issued 11 resisting arrest charges, with other officers issuing from zero to six.
  4. Tubaugh issued 21 disorderly conduct charges, with other officers issuing from two to 17.
  5. Tubaugh made 178 custodial arrests, with other officers making between 30 and 108.
  6. Tubaugh issued 633 citations, with the next highest officer issuing 251.

Raney ordered Tubaugh to submit to a fitness for duty evaluation with a psychologist. The psychologist found that Tubaugh was suffering from a personality disorder, including symptoms of paranoid disorder, narcissism, and histrionic personality. In conclusion, he wrote: “Given the aggregate of problematic behaviors associated with his diagnosis, his reported history, and the prognosis, we are unable to recommend Mr. Tubaugh continue as a sworn officer.”

The City fired Tubaugh, citing not just two of the underlying incidents that had concerned Raney but also the results of the fitness for duty evaluation. The Arbitrator focused at length on the role of a fitness for duty evaluation in the disciplinary process:

“This case is complicated, however, by the fact that these incidents were not the real reason for the discharge. Implicit in Raney’s decision to order Tubaugh to undergo a fitness for duty psychological evaluation prior to determining what discipline to impose for the incidents, was a determination that lesser discipline would be imposed if he was found to be fit for duty. Raney was quite clear in the hearing that his objective was to retain Tubaugh.

“This use of the fitness for duty examination as a substitute for the corrective and progressive discipline contemplated by the collective bargaining agreement is troubling. There is no provision for such use in the collective bargaining agreement, which provides only that the City can require a routine medical examination. No City policy allowing for this process was introduced into evidence. There was no citation to state law regarding fitness for duty examinations for police officers and the Arbitrator was unable to find any such law by independent research. The City cites Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010) in support of the fitness for duty examination, but the holding of that case is only that the use of the exam does not violate the Americans with Disabilities Act.

“Apart from the procedural issues relating to this fitness for duty examination, the resulting report prepared by the doctor is itself troubling. It is clear that the doctor did a number of tests, but he interviewed Tubaugh only once, and that took place in a public venue. The report is replete with allegations of inconsistencies on the part of Tubaugh over a period of eight years, but there is no suggestion that the doctor ever asked Tubaugh to account for these inconsistencies.

“It appears that the doctor relied on statements of people who were not identified in the report for at least some information. The result is that Tubaugh is adjudicated as unfit without any way to rebut or challenge any of the bases for the doctor’s conclusions.

“Employee discipline in the workplace under a collective bargaining agreement is intended to be corrective and progressive. Prior to June 28, 2012, the City had made no serious efforts to correct the problems it considered Tubaugh to have. If Raney believed Tubaugh was writing excessive numbers of citations for disorderly conduct, obstructing an officer, or resisting arrest, he might have considered counseling Tubaugh about the problem. Instead, he commended Tubaugh for his productivity and professionalism. Instead of attempting to reform Tubaugh’s behavior, after becoming aware of the incidents, he sent him for a fitness for duty evaluation. This approach to dealing with employee misconduct violated the collective bargaining agreement between the parties.”

The Arbitrator ordered the City to reinstate Tubaugh, converted the discharge to a three-month suspension, and ordered the doctor’s evaluation expunged from Tubaugh’s files.

Montana Public Employees Association (MacIntyre, 2013).