Two former Hot Springs police officers have petitioned Garland County Circuit Court to review their termination for failure to meet physical fitness requirements.
Lee Tillman and Franklin Sears are challenging their December terminations and the Hot Springs Civil Service Commission's affirmation of their dismissals in January. A petition was initially filed in February in Pulaski County under the state's Administrative Procedure Act, but an amended complaint filed in March said the challenge was being asserted under the state civil service code.
The petition was transferred to Garland County last month as a result, City Attorney Brian Albright said Tuesday. The civil service code entitles civil service employees whom a court determines have been wrongfully dismissed to a judgment for losses suffered as a result of their dismissal.
"The attorney filed in Pulaski County under the wrong statutory scheme," Albright said. "That's why it was transferred to Garland County."
According to the complaint, Tillman and Sears, 32- and 22-year veterans of the department, respectively, were fired in December after failing to pass the fitness test five times since May 2017. The Civil Service Commission unanimously upheld their dismissals in January.
According to a copy of the 2012 physical fitness policy attached to the complaint, officers are required 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," according to the policy, which allows the chief of police to decide if an officer will remain on the force based on the officer's test performance and a report from a physician.
Tillman and Sears allege they were denied due process, claiming the department didn't schedule an appointment with a physician as provided for in the policy. If the physician determines an officer who failed the test is medically able, the officer receives a fitness and dietary plan prescribed by a certified fitness trainer to follow for 60 days. A follow-up assessment is scheduled with a physician if the officer can't pass the test after 60 days.
The complaint said a physician never determined if Tillman and Sears were medically able to perform the test.
"The Hot Springs Police Department failed to comply with its own policy virtually every step of the process that led to the petitioners' termination," the complaint said.
The complaint also said the test did not make age allowances for Tillman, 62, and Sears, 45, and that physical fitness is required for only a fraction of a police officer's essential duties.
"The department didn't implement the policy properly," Russell Wood, Tillman and Sears' attorney, said last week. "It didn't follow its own policy, and the policy itself is unconstitutional."
Wood said he didn't know how close his clients came to completing the test in the requisite time. He said Tillman is retired, and Sears works for another law enforcement agency.
Albright is alleged to have presided over the Civil Service Commission's hearing of Tillman's and Sears' appeal in January in violation of the civil service code, which stipulates that the commission's chair "shall preside at all trials and shall determine and decide all questions relative to pleadings and the admissibility of evidence."
Albright said Tuesday the claim is inaccurate, an assertion he said is supported by a transcript of the hearing.
"There is a transcript to that effect," he said. "The chairman, Sam Stathakis, presided over the Tillman/Sears hearing."
Albright said the city will respond to the complaint if the court grants a review of the commission's ruling. The transcript from the hearing will be included with the response, he said.
Local on 07/11/2018