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.
