City Directors mixed on city action with Fort Smith Police Officer Herring

At least two Fort Smith Directors are not supportive of how the city handled the employment of Police Officer Lindsay Herring. But Fort Smith City Administrator Carl Geffken said Herring was afforded all possible leave allowances and her employment simply ended when she ran out of options.

On Monday (Feb. 19) the Fort Smith Civil Service Commission voted 6-1 to reinstate Herring, with Police Chief Nathaniel Clark saying she was a good officer and would be welcomed back.

The officer is expected to resume full duties on March 1, 2018 and could be eligible for light duties immediately, according to Candice Settle, Herring’s attorney. Settle also said it was not her client’s intent to file actions seeking damages or attorney’s fees against the city.

HERRING HISTORY
In 2017, the six-year veteran of the Fort Smith Police Department gave birth to a child. The childbirth was complicated by the development of a blood clot in Herring’s brain. The incident placed her out of commission with her job for longer than allowed by the Family Medical Leave Act of 1993 (FMLA). After two personal leave of absence periods, the city considered Herring without remaining leave status, and on Nov. 29, 2017, city administration terminated her employment as a result.

“As of November 29, 2017, all FMLA leave, personal leave, and sick time have been exhausted. Since there is no leave status available for a continued absence and there has not been an estimated or designated return to work date confirmed at this time, November 29, 2017 will be considered the last day of employment,” noted a letter to Herring from Fort Smith Benefits Administrator Kandice Harshaw

Candice Settle, Herring’s attorney, said the letter was a violation of her client’s rights under the Rules and Regulations of the Civil Service Commission, particularly Section 14.03, which states that a terminated employee must first be provided with written notice of discharge signed by the Chief of Police. Fort Smith city attorney Colby Roe of Daily & Woods said Herring had no right to a grievance hearing because the Civil Service Commission lacked jurisdiction on matters that were not of a disciplinary nature.

BOARD OPINIONS
Director and Vice Mayor Kevin Settle told Talk Business & Politics he disagrees with the city’s decision to end Herring’s employment. He has not told Geffken of his opinion, but is asking for more information about related city policies.

“I have requested additional information last night by email from City administrator on the City policies for FLMA, leave of absence, STD (short term disability), and LTD (Long Term disability). I am waiting a response,” Settle noted in an e-mail.

Director Keith Lau said he was aware of the Herring issue only because of the grievance filed with the Civil Service Commission. Lau believes the issue is not one that required board involvement.

“I don’t have an opinion on the specifics of this issue,” Lau noted in an e-mail response to Talk Business & Politics. “I believe this is a personnel issue which should be resolved  by the city’s human resources department, city administrator and police chief.”

Director George Catsavis had a much different opinion.

“Personally she should have never been terminated under the circumstances. I know Lindsay personally. She was always professional in every aspect of police work and is an asset to the Police department and the city of Fort Smith,” Catsavis said. “Evidently there is a lack of communication between administration and the board concerning matters of this nature. I would have intervened on her behalf if I had known what was going on and I assume the rest of the board would have had some input in this matter also.”

Directors André Good, Don Hutchings, Mike Lorenz and Tracy Pennartz did not respond to questions from Talk Business & Politics.

HERRING ‘WAS NOT FIRED’
Geffken stressed in his responses that Herring was not fired.

“Officer Herring was not fired. She exhausted her leave balances, leaves of absence, and FMLA and once that was exhausted, Officer Herring’s employment was ended. The City was never provided any information at that time or before that Ms. Herring could return to work,” Geffken noted.

And like Lau, Geffken said the Herring matter did not rise to the level of Board awareness.

“Since this was a decision through the consistent application of policy approved by the Board of Directors to all employees, notification to the Board was not given,” he wrote.

As to if the city will appeal the Civil Service Commission action to reinstate Herring, Geffken did not provide a direct response.

“Although the City will never limit its options, as you will read in the document, Officer Herring was a good employee of the Police department before she exhausted her leave balances, leave of absence, and FMLA,” he noted.

Catsavis was direct in his answer.

“I hope administration does not appeal this ruling. It’s over and done with as far as I’m concerned.”