Civil Service Commission Overturns Boston Police Department’s Psych Bypass of Police Applicant

The Boston Police Department has a history of wrongfully bypassing police officer candidates based upon questionable psychological evaluations. This faulty decsionmaking led to numerous decisions being reversed by the Civil Service Commission and culminated in the Supreme Judicial Court’s 2012 decision, BPD v. Kavaleski. The state’s highest court concluded that the Civil Service Commission properly found that the BPD’s psychologist exceeded her limited role when she disqualified a candidate for reasons unrelated to actual psychiatric conditions. While The BPD has since hired new physicians to conduct its evaluations, a brand new Civil Service Commission decision, handled by Attorneys Leah Barrault and Betsy Ehrenberg, shows that the Department to be making the same old mistakes.

Police departments can conduct psychological evaluations of officer candidates only once they offer a job. The psychologist or psychiatrist’s role is limited at this point – it is not to identify what it thinks are personality quirks, character issues, or places where the applicant can improve themselves. Rather, “the sole task,” as the Supreme Judicial Court noted, is as to determine whether the candidate has “a psychiatric condition that would prevent her from performing, even with reasonable accommodation, the essential functions of the job.” In Kavaleski, the BPD bypassed the candidate on the psychologist’s recommendation, even though she did not conclude that the candidate had any psychiatric condition, let alone one that would interfere with being a police officer.

The Department’s expert in Kavaleski instead relied upon phrases in earlier BPD evaluations, but instead claimed that the candidate’s profile was "not inconsistent" with the presence of certain psychiatric traits, an eating disorder "may be present," and it was "not possible to rule out" other emotional problems. The Commission also found that the expert made obsessive and repeated mischaracterizations of the candidate’s appearance.

While the doctors conducting the BPD evaluations have generally changed from the personnel in the Kavaleski case, the new boss, to borrow a phrase, appears to be the same as the old boss. In the new decision Kelly Clark v. BPD, the Department twice bypassed a native Bostonian and Air Force veteran, who possessed a licensed to carry a firearm and was about to graduate college, for alleged psychological reasons. The Department hired Dr. Ronn Johnson, a psychologist based in Southern California, to fly in and conduct as many as 15 evaluations a day. Dr. Johnson never diagnosed Clark with any specific psychiatric condition but nonetheless recommended that the Department bypass her. The Department claimed that Clark had
“avoidance of aggressiveness, dependability, integrity, managing stress, and quality of judgment.” Again, Dr. Johnson was not asked to discuss any of these attributes and the one attribute he was asked to discuss – whether a psychiatric condition disqualified the candidate – he could not specify.

On appeal, the Civil Service Commission concluded that Dr. Johnson’s evaluation was deeply flawed and could not justify a bypass of Clark. It wrote:

The role of the psychological evaluation is to ascertain whether the candidate’s “history, current status, prognosis and ability to respond to the stressors of the job” affirmatively prove the existence of a specific “disqualifying” psychiatric condition; it is not sufficient for the evaluator to find a candidate’s psychological profile “not inconsistent” with a disqualifying condition or one the evaluator thought “may” be present and it is not appropriate for the evaluator to look for the presence of “qualifying traits” or to make “substantially subjective determinations” about a candidate’s potential to perform police work at a “satisfactory” level. The opinions of expert witnesses have no special “magic qualities”….

The Commission set forth a rigorous standard for Departments to follow in order to justify a psychological bypass: 1) the Department must show that the applicant has been diagnosed with or treated for a Category A condition (not applicable here) OR 2) the Department must show the applicant has a Category B “psychiatric condition” that has “manifested itself by a preponderance of scientifically reliable and credible proof of deficient mental health behavior.” A doctor’s subjective impressions are insufficient to support this latter prong. In addition, the Department must show that 3) the applicant’s psychiatric condition cannot be controlled by a reasonable accommodation (such as medication, therapy, etc).
Here, Dr. Johnson’s evaluation of Clark included multiple errors – some small and some large. He mistakenly claimed that she was in therapy, ignored evidence that she showed remorse over youthful indiscretions, and lacked any evidence more recent than five years old to support questionable opinion about alleged impulse control problems. His negative evaluation relied upon three old incidents that the applicant had already disclosed to the Department and that the Department did not view as significant enough to prevent her appointment. The fatal flaw of Dr. Johnson’s evaluation was its inability to specify a Category B condition that she had, which could not be addressed through a reasonable accommodation, and that made her unfit to be a police officer.
As a result of the Department’s poor decision, the Commission ordered that Clark be placed at the top of the current BPD officer appointment list. If Clark is ultimately hired by the Department, the Commissioner ordered that her civil service seniority be adjusted to reflect a hire date as if she had not been unlawfully bypassed. More critically, the Commission ordered that any future psychological evaluation must be new and conducted by someone not involved in her previous evaluations.