Fort Worth files appeal over officer who was fired, reinstated

The city is appealing a hearing examiner’s decision to reinstate a Fort Worth officer who was fired last year after he failed to undergo an ordered mental evaluation amid concerns about his “worrisome, confrontational and bizarre” conduct.

City attorneys petitioned a state District Court last week seeking judicial review of the May 11 decision by hearing examiner Bill Detwiler to reduce the John Souther’s indefinite suspension to a temporary suspension.

Souther, a combat military veteran who underwent treatment for post-traumatic stress disorder, was fired July 17, 2015, after failing to undergo a fitness-for-duty evaluation ordered by interim Chief Rhonda Robertson.

Robertson ordered the evaluation after concerns surfaced about Souther’s mental state in late 2014 and early 2015.

Before he can begin working again, Souther must undergo and pass a fitness for duty evaluation or he’ll be permanently dismissed, Detwiler stipulated.

City attorneys point out in their petition that Detwiler acknowledged that the city had a duty to require the evaluation “because of the potential harm to the public and liability that could be caused by an unfit officer” and that Souther failed to comply with the order.

They argue that Detwiler exceeded his jurisdiction when he reinstated Souther by “inappropriately interpreting” a procedural rule and determining that the rule was a prerequisite to an indefinite suspension.

They are asking the court to void Detwiler’s order and uphold Souther’s termination.

Terry Daffron, Souther’s attorney with the Combined Law Enforcement Associations of Texas, said Souther is now “a different person” from when he was having issues and has submitted to a fitness-for-duty evaluation.

She called the city “sore losers” for filing the petition, a rare move that she said will only drag out Souther’s reinstatement and rack up attorney fees and back pay for the officer.

“Here you’ve got someone who served their country, fought combat, and is now serving the community as a police officer,” Daffron said. “Did he fall down? Yeah, he fell down but he got back up. Now it’s kind of like the city is a little schoolyard bully pushing him down again.”

Assistant City Attorney Kelly Madrid said the city will not comment on the petition.

‘Confrontational and bizarre’ conduct

Souther served four years in the Army and 10 years in the Air Force Reserve. He did two six-month tours, one each in Iraq and Kosovo.

He joined the Police Department in January 2004.

In early 2015, Robertson learned that Souther had been engaged in “worrisome, confrontational and bizarre” conduct.

According to his disciplinary letter, he publicly brandished weapons, lied about his identity to police, challenged people to a fight, and told his wife that he wanted to die. In one of the incidents, he was taken into protective custody for an emergency medical detention.

Daffron said Souther had been on medical leave due to an on-duty injury when the incidents occurred. She said some supervisors in the department were aware of Souther’s bizarre behavior but “nobody said anything,”

“It’s not until something happens where they really can’t look the other way,” Daffron said. “That’s disturbing in a police department this size. It’s important to look after your officers, not only their physical safety but their mental safety. This job takes a toll on people.”

On March 4, 2015, Robertson ordered Souther to undergo a fitness for duty evaluation. He was given a month to do so but never did.

On April 6, 2015, a meeting was held with Souther to discuss his options in light of his insubordination. A formal complaint was given to him at that time.

The disciplinary letter says Souther used profanity and was confrontational in the meeting. He said that he did not want to submit to the evaluation and that “he had failed every mental evaluation he has taken,” the letter says.

In firing Souther in July, Robertson accused him of neglect of duty, deliberating disobeying her order, and not candidly and fully answering questions during the administrative investigation. She also took into account prior discipline he received for assault-family violence, neglect of duty and untruthfulness.

The hearing examiner’s ruling

In his ruling, Detwiler said it is not clear whether Souther had the mental capacity to understand what police administrators were asking of him or the consequences but, nonetheless, he did not comply with a direct order.

Detwiler didn’t agree, however, with the city’s assertion that Souther had not answered questions candidly and fully during the investigation.

“He was very upfront about it,” Daffron said. “When you read the interview with [internal affairs], it’s very clear that something is wrong because there’s a disconnect. He’s answering honestly but you can tell that he doesn’t get it.”

Detwiler pointed out several flaws in internal affairs’ handling of the case: The main investigator did not sign the written complaint and gave Southern misinformation about the fitness-for-duty process. Souther was interviewed in the presence of four internal affairs unit members — an unusual and “particularly harsh tactic,” Detwiler wrote.

Alleged 48-hour rule violation

But Detwiler’s taking issue with the department’s handling of the “48-hour rule” had concerned city attorneys screaming foul.

The rule states that a police officer who is the subject of an investigation must be informed in writing of the allegations against him or her at least 48 hours before the officer is formally interviewed.

Detwiler ruled that the city served a personnel complaint that lacked “adequate notice” and did not meet its obligation to conduct a subsequent interview that completed the investigation.

He called the city’s actions “an affront to fundamental fairness.”

Detwiler acknowledged in his ruling that he could not, however, consider the alleged 48-hour violation in his decision because Souther did not raise the issue, but said “he would have come to the same conclusion and award absent these issues.”

City attorneys argued that a formal interview was never conducted of Souther after he was issued the complaint because there was nothing to investigate, stating that the officer freely admitted that he did not comply with the chief’s order.

The city contends that Detwiler inappropriately expanded the rule’s meaning and did rely on it in coming to his decision.

Daffron said she believes that the examiner mentioned the 48-hour rule as “just one other instance of a fatal and flawed investigative process.”

“The hearing examiner’s job is not only to determine the truth of the allegations but to also determine if there are mitigating circumstances and if the discipline given was fair. Clearly, they don’t like his decision,” Daffron said.

“The city’s actions to me are equivalent to kids on a playground,” she added. “They don’t like what happened, so they’re just taking their toys and going to District Court.”

This story was originally published May 26, 2016 at 1:27 PM with the headline "Fort Worth files appeal over officer who was fired, reinstated."