Court Upholds Arbitrator’s Far-Ranging Fitness-For-Duty Disciplinary Decision

Matthew Tubaugh is a police officer with the City of Livingston, Montana Police Department. A series of incidents occurred in 2011 and 2012 that led to his discharge. In 2011, he told a judge that he disagreed with a ruling of the Court and later became aggressive and argumentative toward the defendant. Next, on January 6, 2012, Tubaugh disagreed with his supervising officer and attempted to confront the County Attorney. When Tubaugh was told that the County Attorney was not available, he made a profane outburst. Later, on April 15, 2012, Tubaugh and another officer made an arrest. At the detention center, he lost his composure, called the arrestee a “small child” and a “baby,” and slammed down his clipboard. He then injected himself into the booking process and charged the arrestee with obstruction of justice after the arrestee was reluctant to provide an address.

On June 8, 2012, Tubaugh criticized a co-worker for using the internet at work and for missing work for physical therapy. The interaction became confrontational and Tubaugh ignored an order from a sergeant to “knock it off.” On June 23, 2012, Tubaugh and another officer made another arrest, this time for disorderly conduct. At the detention center, Tubaugh’s conduct escalated the situation and ultimately provoked a physical altercation. Detention staff helped Tubaugh subdue the arrestee. In addition to the initial charges, Tubaugh charged the arrestee with assault for the altercation.

On July 25, 2012, Tubaugh was placed on paid administrative leave. Subsequent investigations conducted by the Police Chief concluded that Tubaugh had engaged in unprofessional conduct and that his use of force against one of the prisoners was not objectively reasonable. The Chief also became concerned that Tubaugh had displayed an increasing tendency to respond to disrespectful or insufficiently deferential behavior with charges such as disorderly conduct, resisting arrest, obstruction, or assaulting an officer.

The Chief ordered Tubaugh to complete a fitness-for-duty examination with George Watson, a psychologist with a focus on law enforcement fitness for duty. Watson concluded that Tubaugh suffered from a personality disorder, and that he exhibited symptoms of paranoia, narcissism, and histrionic personality disorder. Watson concluded that he was unable to recommend that Tubaugh continue as an officer. After reviewing Watson’s report and providing Tubaugh the opportunity to respond, the Chief terminated Tubaugh.

Arbitrator Anne MacIntyre determined that while there was just cause to discipline Tubaugh, the proper disciplinary action was a three-month suspension without pay. She also ordered that the City of Livingston expunge the fitness-for-duty examination from Tubaugh’s personnel file. The City then challenged the Arbitrator’s opinion in the Montana Supreme Court.

The Court upheld Arbitrator MacIntyre’s decision. The City contended that the Arbitrator exceeded her authority by requiring the City to subject Tubaugh to progressive discipline rather than moving directly to a fitness-for-duty evaluation and discharge. The Court rejected the City’s contention, finding that “the Arbitrator’s reasoning involved her interpretation of the CBA’s provisions for discipline and termination, matters properly within the scope of the issue presented by the parties for arbitration: whether there was cause for termination. The trial court found error in the Arbitrator’s interpretation of the CBA. A court may not overturn an arbitrator’s decision, however, simply because the Court believes its own interpretation of the contract would be the better one.”

The Court then turned to the heart of the City’s argument – the Arbitrator’s holdings on the fitness-for-duty evaluation. The Arbitrator expressed concern with the fitness-for-duty examination given Tubaugh, stating: “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.” She noted that the examination was not mandated by the CBA, City policy, or state law. She further determined that, “apart from the procedural issues relating to this fitness-for-duty examination, the resulting report prepared by Watson is itself troubling.” She observed that Watson’s sole interview with Tubaugh took place in a public venue, that Watson relied on statements from people who were not identified in the report, and that Tubaugh never had the opportunity to rebut or challenge the bases for Watson’s conclusions. The Arbitrator held that the fitness-for-duty examination given Tubaugh thus was not credible or reliable because of the manner in which it was conducted.

The Court turned away the City’s challenge, noting that “judicial review of arbitration is profoundly more limited than judicial review of a verdict of a jury or trial court. Arbitrators have the power to review issues of both fact and law. A court may not re-weigh the evidence in the case or reinterpret the reliability of evidence presented for the Arbitrator’s consideration. The Arbitrator’s award did not alter existing management rights, including any right to require fitness-for-duty examinations of officers. Instead, the Arbitrator determined that the fitness-for-duty examination was the improper approach in this circumstance and that the examination itself was not credible.

“The Arbitrator’s authority to weigh evidence clearly allowed her to determine the credibility of the fitness-for-duty examination. The trial court erred by determining that the Arbitrator’s award should be vacated because of its findings related to the fitness-for-duty examination.”

The last issue raised by the City concerned the Arbitrator’s order that the City remove the fitness-for-duty evaluation from Tubaugh’s personnel file. The City contended that the order would require it to violate Montana’s public records laws. The Court disagreed, finding “the issue is not whether the public has a right to know, but whether the Arbitrator had the authority to remove the examination from Tubaugh’s personnel file after she determined that the examination was not credible. The Arbitrator did not order that the examination be destroyed. She merely ordered it removed from Tubaugh’s personnel file to prevent it from being used for disciplinary purposes in the future. Similar to her determination regarding the examination’s credibility, this decision was within the scope of the issues the parties agreed to submit to arbitration.”

City of Livingston v. Montana Public Employees Association, 2014 WL 6680579 (Mont. 2014).