LCW Associate Attorney Danny Yoo represented a city in a grievance arbitration that resulted in a denial of a police officer’s grievance.

Category: Briefing Room
Date: Feb 5, 2020 11:41 AM

LCW Associate Attorney Danny Yoo represented a city in a grievance arbitration that resulted in a denial of a police officer’s grievance.

In October 2018, a police officer initiated an unscheduled meeting with the Chief of Police.  During the meeting, the officer became emotional and stated that she was having trouble responding to radio calls.  Out of concern for the officer’s well-being and ability to perform the duties of a peace officer, the Chief had the Assistant Chief follow up with the officer via telephone.  The officer again expressed she was having difficulty working and was intensely emotional. 

The Chief and Assistant Chief consulted with an expert police psychologist who recommended that the officer undergo a fitness for duty (FFD) examination to determine whether she could complete her duties as a police officer.  The Chief directed the officer to attend the FFD examination and placed her on leave pending the examination.  The officer grieved the decision to place her on administrative leave and alleged a violation of the applicable Memorandum of Understanding (MOU). 

The city denied the officer’s grievance on multiple grounds.  First, the Chief was exercising a management right in ordering the FFD examination.  The Chief had a statutory duty to ensure that the city’s peace officers were free from any physical, emotional or mental condition that might adversely affect the exercise of their police powers as required under Government Code section 1031. 

Second, the city denied the officer’s grievance because the MOU only allowed for grievances related to any alleged violation of any of the city’s personnel rules.  The city’s personnel rules also said that directing and managing employees is a management right.  The MOU stated that all rights not clearly and expressly limited by the MOU are expressly reserved to the City.  Nothing in the MOU limited the city’s right to send an employee for an FFD exam.

After exhausting the city’s grievance procedures, the officer formally requested advisory arbitration.  The parties participated in two days of hearings. Ultimately, the arbitrator agreed with the city that: (i) placing the officer on administrative leave and directing a fitness for duty examination was within the purview of the city’s exclusive management right to direct its peace officer employees; and (ii) the city’s conduct was not grievable under the terms of the MOU.

Note: 

Agencies have a legal duty to ensure their peace officers are fit to perform their law enforcement duties. LCW is proud to have assisted the Chief of Police to carry out this critical public safety duty.

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