Lindsay Herring needed a break when she brought her appeal of termination before the Fort Smith Civil Service Commission on Monday (Feb. 19).
In 2017, the new mom and six-year veteran of the Fort Smith Police Department (FSPD) gave birth to a child — something that should be considered a happy time, but it was complicated by the development of a blood clot in her brain. The incident placed her out of commission with her job for longer than allowed by the Family Medical Leave Act of 1993 (FMLA), and on Nov. 29, 2017, city administration terminated her employment as a result.
When city benefits administrator Kandice Harshaw sent out a letter notifying Herring of her termination on Dec. 5, 2017, effective Nov. 29, it caught the still-recovering officer and brand new mom off-guard.
The letter stated: “On September 4, 2017, you were placed on a leave of absence through FMLA … (which) grants all eligible employees up to 12 weeks of qualified leave and runs concurrent with any available sick leave and vacation time. Due to a prior approved FMLA leave on May 10, 2017, 343 hours of available time had already been expended. On September 27, 2017, the total of the 12 weeks of FMLA leave were completely exhausted. On September 28, 2017, a 30-day personal leave of absence was approved which extended your leave an additional 30 days. The first 30 day leave expired on October 28, 2017. A second personal leave of absence was approved on October 29, 2017 and expired on November 29, 2017. … 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.”
According to Candice Settle, Herring’s attorney, the letter was a clear 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. Settle also argued the letter she did receive (Harshaw’s) did not arrive until the ninth day of Herring’s 10-day window for appeal, and it failed to inform her appealing the decision was an option.
Fort Smith city attorney Colby Roe of Daily & Woods responded to Settle that Herring had no right to a grievance hearing because the Civil Service Commission lacked jurisdiction on matters that were not of a disciplinary nature. Roe argued that Herring’s termination was not a matter of discipline and that everyone agreed “she was a good police officer.” Furthermore, the city would “accommodate” her immediately if the Commission decided to overturn.
Settle’s case was that under Arkansas Code Annotated 14-51-308, the Civil Service Commission’s rules had the “force and effect of law” and accused the city of playing a “semantics” game in trying to work around it by saying Herring’s termination was not a disciplinary action.
Attorney Joshua Carson of Jones, Jackson & Moll, PLC, whom the Commission asked for a second opinion on the case Feb. 5, referred to the city’s circumstances of dismissal — resignation, discharge, or death — to infer that Herring was discharged by the city. “Clearly, she’s been ‘somethinged’ here,” Carson said, adding that, in his view, the Commission had the legal standing to hear Herring’s appeal.
Herring was present at the Commission’s meeting, but she did not speak. Her baby girl cried from the audience until a family member escorted her to the hallway.
Before casting his vote, Commission Chair Chip Sexton called Herring’s actions at the Aberdeen Circle shootout “heroic” and further stated she “saved lives” and “risked her own” when she was fired upon by an armed assailant.
In August 2014, then-Officer Herring and Officer Angus Bradford pursued an armed suspect and carjacker to a home at Aberdeen Circle only to be engaged in a shootout. The suspect fled the scene and eventually ran into off-duty Sebastian County Sheriff Deputy Joshua Heidelberg, who shot and killed the armed assailant while in the process of a second carjacking attempt.
FSPD Police Chief Nathaniel Clark said he would “take her back at work tomorrow.” The commission voted 6-1 to reinstate Herring, with Charolette Tidwell voting no, but as a protest against how the commission was provided information about Herring’s case prior to the hastily-called meeting.
Settle told the Commission Herring could resume full duties on March 1, 2018 and she could be eligible for light duties immediately. Settle also noted it was not her client’s intent to file any further actions seeking damages or attorney’s fees against the city.
“She just wants her job back.”
On Monday, she got it.