Ruling on officer’s firing reversed
The Arkansas Court of Appeals has reversed a Garland County Circuit Court judge’s decision affirming Hot Springs Police Chief Jason Stachey’s decision to fire a 20-year veteran of the police department who had continually received an “unsatisfactory” score on a physical-agility test.
Garland County Division 3 Circuit Judge Lynn Williams dismissed Franklin Sears’ appeal of the Hot Springs Civil Service Commission’s unanimous decision to uphold his December 2017 termination in January 2019. According to court records, Sears failed the department’s physical fitness test five times in 2017, triggering his dismissal under a policy the department adopted in 2012 and amended in 2017.
The Court of Appeals, in an opinion released Wednesday, reversed and remanded the case
to the circuit court.
Sears argued that the city wrongfully terminated him when it failed to follow its own mandatory policy. According to Sears, the city’s doctor did not first determine whether he was medically able to pass the physical-agility test; the city provided him with a physical therapist, rather than a “certified fitness trainer”; and the city’s doctor did not perform a fitness-for-duty evaluation.
“Sears argues that we should reverse the circuit court and remand for a ‘determination of money damages.’ His arguments have merit … ,” the opinion said.
According to a copy of the policy included in Sears’ complaint, the physical fitness test adopted in 2017 requires officers to cover the length of a football field seven times while negotiating a hurdle each time and doing 15 push-ups between the second and third passes and 15 sit-ups between the fourth and fifth passes.
Before making the final pass, they are required to drag a sandbag 10 yards to the back of the end zone. Times in excess of 12 minutes and 30 seconds or incomplete tests are considered unsatisfactory, allowing the chief of police to decide if an officer will remain on the force based on the test performance and a report from a physician.
Stachey testified during the Civil Service Commission hearing in January 2018 that the time limit was established during the development of the test in late 2016. He said it was the average of the slowest 10% of times clocked during the trial period, telling the commission that on average officers complete the test in about five minutes.
Applicants have to complete the test within five minutes to qualify for employment with the department. Stachey told the commission the current test is less demanding than the one adopted in 2012.
While Sears raised three points for reversal, the appeals court addressed only Stachey’s final decision to terminate him.
Sears was seen by a local physician, Dr. Timothy English, on June 16, 2017, after he had received an unsatisfactory score on the second test. Sears argued that English did not determine his fitness for duty.
“Sears states that all of the undisputed evidence plainly shows that, although he was unable to do sit-ups, he was fit for duty in that he had performed his job functions without issue for 21 years,” the opinion states.
“We have no comment on whether Sears was actually fit for duty, as he urges, but we do agree that the city failed to follow its own policy, specifically, the steps to be taken when an officer performs unsatisfactorily on the revised physical-agility test. The policy provides that the chief of police will make a final decision on termination ‘based on the officer’s fitness for duty evaluation and report from the physician.’
“Clearly, Dr. English did not perform a fitness-for-duty evaluation — he merely recited what he had been told by Sears and did not form a medical opinion. Chief Stachey admitted that what the doctor had compiled was ‘incomplete’ and ‘inconclusive.’ Despite the policy’s express language requiring a fitness-for-duty evaluation on which to base a final decision, Chief Stachey simply terminated Sears. We conclude that the circuit court clearly erred in finding that the city met the requirements set forth in its physical-fitness policy,” the opinion said.