AZCOPS seeks legislation to allow officers to see fitness-for-duty reports 

(Posted: Feb. 19, 2009)

By Martin Bihn
AZCOPS General Counsel

Arizona has no standards relating to fitness-for-duty evaluations. In fact, there are no standards as to when a department may request an officer to undergo a fitness-for-duty evaluation; what information a department should provide to a psychologist; what information the psychologist should disclose about the officer back to the agency, or even what basis the psychologist will use to determine fitness. The only real rule (and it is an unwritten one) followed by some departments is to deny officers access to their own fitness evaluations.

Recently, AZCOPS has seen cases that brought the problem to the forefront. One example is in a sheriff's office that sent a deputy for an evaluation. The report was returned and te deputy was advised that she was "unfit for duty" and to "come back in 30 days." Our member asked the following questions and received these responses:

Q: Can I have a copy of the report?
A: No
Q: Can I read the report?
A: No
Q: Can you tell me what's wrong with me?
A: Can't tell you.
Q: What do I need to do in the next 30 days to make sure I am fit?
A: Nothing.

After about 30 minutes of this sort of exchange our member left. Her own physicians have advised her that she is fine and fit for duty.

This case was the final straw for us. AZCOPS decided to introduce legislation to address the problem.

State Rep. John Kavanagh, a retired officer fro New York, sponsored HB 2024 and has been a huge help.

All we wanted to do was pass a law that would require a department to provide a copy of the fitness for duty examination to the officer within three days of receiving it. We thought this would be a simple, no-brainer. Surely no one would really care if an officer saw his or her own report!

Boy, were we wrong. Of course the usual suspects who oppose all pro-police measures came to oppose the bill. Some of those included the Arizona Association of Chiefs of Police, Sheriff Joe's minions, and the Phoenix Police Department. In addition, the Arizona Courts and a host of psychological associations appeared at a meeting with Rep. Kavanagh to oppose the bill.

This is the rationale they used:
Chiefs -- If we show the officer his test results then we won't be able to run our departments!
Psychs -- If we show our reports to the officers then they will learn our psych tests and learn what answers to give to defeat the tests and this will ruin law enforcement!
Psychs -- If we show our reports to officers they might file board complaints against us or might sue us!

In our view, these "chicken little" pronouncements were so stunningly lame that we decided to do a little homework to find out just how bad the world would be harmed if an officer was told why the department found him "unfit."

We started with Phoenix and Tucson psychologists who do fitness-for-duty evaluations. They really had no problem disclosing reports, but believed the underlying testing data (MMPI forms, etc.) should not be disclosed. AZCOPS has no problem with that as the underlying data is kept by the psychologist and is not even sent to the department.

We then went to Dr. Alexis Artwohl, a national leader in training officers to survive critical incidents. She referred us to Dr. Dave Corey, one of leading experts specializing for the last 30 years in police officer fitness for duty issues. Before we could even make the call we received this email from Dr. Corey:

Dear Mr. Bihn,
Dr. Alexis Artwohl forwarded to me your email from yesterday concerning AZCOPS's efforts to ensure that Arizona police officers ordered to submit to fitness-for-duty evaluations are provided copies of any reports resulting such an examination within ten days. As you now know, this is a hotly contested topic, both in police psychology and among police administrators. I happen to fall squarely on the side of AZCOPS on this issue and I'd be happy to discuss with you the rationale-legal, ethical, and clinical-for my position. I also have some thoughts about possibly revising the bill in such a way that some of the objections might be remedied. I've attached my CV for your consideration.
Sincerely,
Dr. David Corey

Dr. Corey spoke with us about the problem and potential solutions. He said that the Portland, Oregon PD as a matter of written policy has for years routinely provided psych reports to the officers.

Corey also advised that the idea of officers "learning to defeat the test" was preposterous but a claim that psych associations routinely assert. As to being subject to board complaints and lawsuits, Corey said psychologists like everyone else ought to be held accountable.

At this point we are armed and ready for the fight, but if this begins to move sideways as is the norm in the Legislature we may put out a call for emails and phone calls to designated representatives. We will provide you with the emails and phone numbers if this becomes necessary.

What is now clear is that Chiefs and Psychs have been able to keep this hot-button issue buried for years. We are pushing for fairness, transparency and some rules so that these fitness reports are used appropriately. We may not get all of this in one year at the Legislature, but AZCOPS will keep coming back to protect your rights.