|Legal Opinion: |
Text of Document: April 29, 1998
You have the following question: What rights does the city have to require that a police officer who checked himself into a detoxification center, and whose wife told the police chief that he has crying spells and periods of intense anger, and who now wants to return to work, prove that he is capable of performing his duties without risk to the public?
Under the facts you related to me on the telephone, the police officer notified the chief of police that he was going to check himself into a detoxification center for an alcohol problem. The police officer says that he was in a detoxification center from April 20 to April 24. He now asks the city to return him to work. After he checked himself into the detoxification center, the police officer’s wife told the police chief that her husband has crying spells and periods of intense anger. Apparently the police officer is aware that his wife gave the chief of police that information and has not disputed it. The city is concerned that the police officer may be a threat to the public if he is returned to his duties as a police officer absent some evidence that he is mentally sound enough to perform his job.
The recent case of Moore v. Board of Education of the Johnson City Schools, 134 F.3d 781 (6th Cir. 1998), gives the city some guidance on your question. The case is also important from the perspective that it is in the U.S. Sixth Circuit Court of Appeals, the U.S. Circuit of which Tennessee is a part.
In Moore, a teacher in the Johnson City, Tennessee School System had a number of personal problems. Her husband was arrested, she was allegedly raped by her ex-husband, and she lost custody of her children. She voluntarily entered a psychiatric facility in late November, 1993, but told school administrators she needed to undergo a blood test. While en route to the psychiatric facility, and under the influence of alcohol, she was involved in an automobile accident. Apparently the school system had not known of Ms. Moore’s psychiatric difficulties at the time of her accident, but learned of them shortly thereafter. The school system suspended her with pay, and requested that she provide medical documentation indicating her ability to continue to perform as a classroom teacher. She received the request, but did not respond. At some point the school superintendent changed the suspension to a suspension without pay, and notified Ms. Moore that she must notify him of her willingness to cooperate with his investigation by submitting her medical records to him and undergoing an independent psychiatric evaluation regarding her ability to perform in the classroom. She refused to do either, but said that she would submit a letter from her physician regarding her ability to function as a teacher. However, she did not even do that.
The school superintendent notified Ms. Moore that her teaching contract for the upcoming year would not be renewed, and that he was initiating dismissal procedures against her for improper conduct stemming from her drunk driving accident, and for insubordination for failing to provide the requested documentation concerning her psychiatric condition, and for abandonment of her teaching duties without leave. Ms. Moore stayed in the psychiatric hospital until January 5, 1994.
The school superintendent subsequently held a hearing for Ms. Moore, dismissed her, and several days later upheld his dismissal. In the opinion upholding his dismissal, the school superintendent wrote:
The school system has a legitimate need under circumstances that so warrant to review a teacher’s ability to continue to function in the classroom. I have determined that the events of this case so warranted. The school system was not able to consider whether or not Ms. Moore was fit to return to the classroom due to the refusal of Ms. Moore to provide any information with which such a consideration could be made [.] This dismissal is upheld unless Ms. Moore agrees to provide previously requested information by the superintendent with which her ability to resume her teaching duties can be considered. It is noted that Ms. Moore states she was not under the impression that she was directed to submit this documentation. Therefore, this decision provides one additional opportunity to do so. [Emphasis is in the original, as also noted by the Court.]
Ms. Moore did not provide the requested information and sued in U.S. District Court on several grounds, one of which was that she was disabled and that her dismissal was a violation of the Americans with Disabilities Act (ADA). During the trial of her case evidence was apparently introduced that she was involved in narcotics use and had been arrested after her hearing before the school superintendent and before the trial! The Court upheld the District Court’s decision. It pointed out that under the Americans with Disabilities Act, Ms. Moore had to prove four elements in order to successfully argue that she had been dismissed because of her disability:
1. That she was a disabled person under the ADA;
2 That she was being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely because of her disability;
3. That the program in question receives federal financial assistance;
4. That she was otherwise qualified for participation in the program or activity. Emphasis is mine.]
Ms. Moore met the first three requirements, but did not meet the fourth requirement, held the Court. She would be “qualified” if she could “with ‘reasonable accommodation,’ meet the ‘necessary requirements’ of the program.” [At 874.] However, reasoned the Court:
The evidence establishes that, prior to November 22, 1993, she [Moore] was able to perform all her professional duties and keep her emotional problems and chaotic personal life separated from her public life. However, Ms. Moore has not proved that she was able to resume her teaching duties after her release from the hospital on January 5, 1994, or at any time prior to the expiration of her 1993-94 contract year. In fact, before her hearing in April, she had two additional hospitalizations. In the absence of a letter from Dr. Lewis [her physician] or the report of an independent psychiatric examination, the Court is unable to find that she was “otherwise qualified.”
Technically, items 2 and 3 probably do not apply to your city because the city probably does not receive federal funds. However, Titles I and II of the ADA, clearly prohibit state and local governments from discriminating against qualified individuals with disabilities regardless of whether or not they receive federal financial assistance. Title I requires the fair treatment of “qualified individuals with disabilities.” 29 C.F.R. section 1630.2(g) defines a qualified individual with a disability as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” For that reason, essentially the same four elements Ms. Moore was required to prove in order to prevail in her claim, including the fourth one, applies to the city’s police officer whether or not the city receives federal financial assistance.
Moore appears to support the proportion that where a police officer has voluntarily entered a detoxification program, he can be required by the city to produce evidence from which it can make a determination that he is qualified to go back on the streets. Here the city has additional information from the police officer’s own wife that he suffers from crying spells and periods of intense anger.
Moore does not make it clear what kind of evidence Ms. Moore was required to produce in order to prove that she was “qualified” to return to her teaching duties. The school superintendent demanded that she produce her medical records and to undergo an independent psychiatric examination. However, the Court declared that, “In the absence of a letter from Dr. Lewis [Ms. Moore’s doctor] or the report of an independent psychiatric examination, the Court is unable to find that she was “‘otherwise qualified.’” [Emphasis is mine.] Apparently, the Court thought that the school superintendent could have made a determination that Ms. Moore was or was not qualified to return to her teaching duties either from the letter from her doctor or from the independent psychiatric report.
Ms. Moore had a dismal record of misconduct, including criminal activity, as well as emotional problems. It was clear that her life was a total shambles. It is difficult to imagine any court believing that she was remotely qualified to be teaching children. The police officer in your case apparently has no such dismal record. However, he is a police officer who is armed and who is required to work with the public, including in situations where stress is high. For that reason, I think Moore entitles the city to see some evidence from him indicating that he is “qualified” to be a police officer. He entered a detoxification program, which certainly indicates a problem with alcohol and/or other substances, and the conduct pointed to by his wife indicates that he may have emotional problems. For those reasons I think the city is within the law to refuse to return him to work as a police officer until he produces at least one of the following documents:
1. Certification from his personal doctor that he is fit to return to duty as a police officer. The certification should include an acknowledgment by the doctor that he knows the police officer enrolled himself in a detoxification center.
2. A certification from the detoxification center that the police officer completed the program and that he is fit to return to duty as a police officer.
3. A certification from an independent doctor of the city’s own choosing that the police officer is fit to return to duty as a police officer.
In all of the above cases, it also seems to me essential that the police officer produce some kind of evidence that he completed the prescribed detoxification program. A failure or refusal to complete the program seems to me evidence that he is not qualified to return to duty.
Sidney D. Hemsley
Senior Law Consultant