By Jim Cline and Geoff Kiernan
In City of Sparks, an arbitrator ruled that while the Nevada city had improperly denied an Officer access to an attorney during an investigation, the city still had just cause to terminate him when he voluntarily consented to a drug test, which later tested positive for Methadone. Furthermore, the arbitrator found that fact two months after his termination the officer was still illegally abusing methadone confirmed that he was still unfit for light duty.
During his ten years as officer with the Sparks Police Department, Officer W was recognized with numerous service awards and suffered several physical injuries in the line of duty. Officer W received a prescription for Percocet in 2011 as a result of an on the job injury. Then while pursuing a suspect in Officer W drove through a red light and was hit by car. As a result of this injury he was placed on full disability and received numerous prescription pain medications. Officer W returned to full duty in April of 2013.
Several months later, Officer W reported to work for a graveyard shift and according to his commanding officer appeared “out of it.” He was recalled back to the station and then questioned by his Sergeant and Lieutenant, who then brought him to the deputy chief. During all of these encounters Officer W repeatedly asked for representation, which was not provided. Officer W then returned home, and left his patrol car idling in the parking lot. Officer W was recalled to the station and then signed a consent form for drug and alcohol testing. This test came up positive for methadone, and Officer W was suspended until he was fit to return to light duty. When Officer W attempted to return to light duty, the city’s medical doctor found that Officer W continued use of methadone made him unfit for light duty. The city then terminated Officer W.
Officer argued (this was a grievance presented by the individual officer, not his labor organization) that he was improperly denied a right to legal representation which is guaranteed by the Nevada when an officer is facing an investigation. He further argued that because was inappropriately questioned, the drug test that was issued as result of that investigation should be inadmissible. The city responded that he was not under any investigation and thus did not have a right to counsel.
While the arbitrator agreed that Officer W did have a “right to counsel” under Nevada law the CBA also allows for an officer to be subject to a drug test when there was “reasonable suspicion.” The arbitrator found that “The City properly conducted a reasonable suspicion drug test after officers observed unusual behavior and Officer W gave written consent.” Thus the arbitrator found that the drug test was admissible in the grievance hearing.After deciding that the drug test was admissible, the Arbitrator still had to decide if Officer W’s use of methadone made him unfit for duty at the time of the termination hearing.
The argued that Officer W was still illegally abusing methadone at the time of the grievance hearing, more than two months after the termination hearing, showing that W was unfit for duty. The city also argued that after W’s first incident they gave him information about how to apply for an ADA accommodation, which he never followed up on.
Officer W argued that he was taking a legally prescribed drug as a result of a work related auto-accident. He further stated that he had a doctor’s note which recommended that he was fit for light duty. Furthermore he accused the city of failing to accommodate him under the ADA.
The arbitrator was unconvinced by Officer W’s argument. He found that after Officer W’s suspension in October the city made it very clear what they required of Officer W in order for him to return to work. Officer W had to produce a medical certificate that certified he was fit to return to light duty. Yet at Officer W’s hearing he was unable to produce the document and he even lied about having such a certificate. The arbitrator concluded that Officer W never obtained the certificate and decided;
Those failures to act in his own best interests provides further evidence about Officer W’s inability to do administrative light duty for the Police Department. Instead of accepting personal responsibility, Officer W’s grievance unreasonably claims that he was denied equal treatment.
Thus, as result of Officer W’s inability to prove he was fit for light duty the city had just cause to fire him. The arbitrator ruled to allow Officer W to return to work given his continued use of prescription drugs would pose a danger to himself and other officers.
The evidence of the grievant’s continued use of methadone was decisive in this case. The City violated correct procedure but the remedy of reinstating a drug user was something this arbitrators, like most arbitrators, was unlikely to do.
The officer argued an entitlement to accommodation under the ADA. But normally any use of current use of drugs would not qualify for an ADA accommodation. The ADA extends some protections to previous users, not current users.
Had he not continued his drug use, there is an outside possibility the arbitrator may have reinstated him. The City had apparently violated the state law concerning the right to representation and some arbitrators might have used that violation as a basis to exclude the admission of the test. Presenting evidence of verified rehabilitation, would have made this a close case.
Another relevant factor here is that the right to representation was based on a statute, not the CBA. The arbitrator’s role is to enforce the CBA. Had the right to representation been expressly contained in the CBA, that may have presented the arbitrator with a different question. Often, but not always, arbitrators find that a violation of contractual due process and bill of rights provisions require setting aside the discipline. Some arbitrators will find such statutory requirements as an implied element of just cause. The degree to which an arbitrator will force an employer to comply with these procedures, though, can be impacted by whether the specific procedures are defined in the CBA language, language which an arbitrator may feel compelled to give effect to.
