Pa. court OKs removal of officer who can't smell

**Billy Mack** · 03-26-09, 08:16 PM

Pa. court OKs removal of officer who can't smell By MARK SCOLFORO Associated Press Writer
HARRISBURG, Pa. (AP) - A Pennsylvania appeals court says a township is allowed to discharge an officer because he lost his sense of smell in an off-duty motorcycle accident.

The Commonwealth Court ruling issued Thursday upheld Collier Township's decision to honorably discharge Officer David Agostino.

The township near Pittsburgh says his lack of smell created a safety hazard. It says officers patrol alone and need to be able to detect drugs, alcohol, hazardous materials and natural gas leaks.

Agostino insists he's able to perform the job. He says a sense of smell isn't tested as part of the physical examination required to become a police officer.

The case is an appeal of a civil service commission decision to remove Agostino.

I guess I shouldn't be using my poor sense of smell as a ploy to get an Alcosensor.

**TXCharlie** · 03-26-09, 08:24 PM

If I were him, I'd sue the assholes for disability...

If it's an off or on-duty injury (doesn't matter) and the end result is that you're unable to peform your job, then that's a permanent disability in my book.

I find it hard to believe that a sense of smell is reason to take him off the streets, though - What's the most he's gonna do, fail to catch someone smoking pot or cooking Meth?

I suppose it can be argued that he could be a liability because he can't smell gasoline or natural gas, but he can compensate for that by always assuming a gas leak when he sees a car is upside down with a big puddle under it. Sheesh.

What are the chances that he will just "stumble upon" a natural gas leak that no one has noticed yet, or a meth lab that he didn't already suspect? Normally he'd be there because SOMEONE reported a leak, a smell, hit a meter, or something is already on fire.

It could also be that they're firing him for some other reason and just looking for an excuse, but they should come up with a better excuse than that, or (duhh) fire him for the real reason.

**Cidp24** · 03-26-09, 08:31 PM

It was off-duty, according to the post, Charlie - but I still think there is more to it than that. Seems kind of odd to can him for that.

**TXCharlie** · 03-26-09, 08:37 PM

Originally Posted by Cidp24

It was off-duty, according to the post, Charlie - but I still think there is more to it than that. Seems kind of odd to can him for that.

Noticed that when I re-read it & fixed it already

I don't think it matters whether it was on-duty or off duty if you're just talking about disability benefits. Workman's comp yes, disability no.

**Retdetsgt** · 03-26-09, 08:43 PM

Originally Posted by Billy Mack

Agostino insists he's able to perform the job. He says a sense of smell isn't tested as part of the physical examination required to become a police officer.

I agree with him. I bet the dept has been trying to get rid of him for other reasons, but this is the only one they can take to court.

**Retdetsgt** · 03-26-09, 09:00 PM

Originally Posted by TXCharlie

I don't think it matters whether it was on-duty or off duty if you're just talking about disability benefits. Workman's comp yes, disability no.

Workman's Comp pays for off duty injuries? We have a limited disability program for off duty injuries and non occupational diseases, but it's not much and based on your years of service. You can get it without much complaint from anyone.

**Car 4** · 03-26-09, 09:46 PM

Somebody in that shop better read the Americans with Disabilities Act or they are gonna give him his job back and pay him some money.

Car 4

**Retdetsgt** · 03-26-09, 09:56 PM

Originally Posted by Car 4

Somebody in that shop better read the Americans with Disabilities Act or they are gonna give him his job back and pay him some money.

Car 4

I would agree, but the appeals court doesn't seem to think it applies. Hell, we have a blind chemist working in the state crime lab. She started going blind from diabetes and they've kept upgrading equipment so she can see to do her work. When I retired, she was coming in with a seeing eye dog. I'd love to see her testify in court regarding her findings on a case....

**TXCharlie** · 03-26-09, 11:05 PM

Originally Posted by Retdetsgt

Workman's Comp pays for off duty injuries? We have a limited disability program for off duty injuries and non occupational diseases, but it's not much and based on your years of service. You can get it without much complaint from anyone.

No, I was saying that it matters whether the injury is on or off duty wth Workman's Comp, but it doesn't matter with Disability insurance. At the private companies I worked at, Disability insurance was never based on years of service, or where & when the injury occured (except for military injuries, attempted suicide, and illegal acts) . Plus you could pay extra and get a lot more coverage as a percentage of your salary.

True, Disability usually doesn't pay full salary, but I don't believe it's taxed, is it? It used to not be taxed, anyway. That made up for at least part of the difference. Plus, you don't have the transportation expenses of going to work, eating out at lunch, tolls, and all that.

Anyway, he should sue for at least partial disability - They shouldn't be allowed to say he's so disabled that he can't work, yet he's not disabled as far as insurance goes.

**Retdetsgt** · 03-26-09, 11:59 PM

Originally Posted by TXCharlie

.

Anyway, he should sue for at least partial disability - They shouldn't be allowed to say he's so disabled that he can't work, yet he's not disabled as far as insurance goes.

I wouldn't think the dept would have any say in whether or not he gets non-occupational disability, especially if it's private insurance. I think he just wants to keep his job.

I know my dept doesn't really care if you go off on non-occupational disability, it costs them nothing. I've never known them to contest it.

**MacLean** · 03-27-09, 12:02 AM

I have known some very good cops who could not smell.

I'm with Car 4 - the ADA covers this.

You'd have to prove that the other senses could not accomplish the job.

**Retdetsgt** · 03-27-09, 12:08 AM

Originally Posted by maclean

I have known some very good cops who could not smell.

I'm with Car 4 - the ADA covers this.

You'd have to prove that the other senses could not accomplish the job.

It's interesting though that the appeals court didn't see the ADA as part of it. I'm wondering about that. You would think they would be aware of any ADA clause that would be relevant. I would have thought so too.

I agree, it's a stupid reason to fire someone. That's why I'm suspicious there aren't some other reasons behind this.

**TXCharlie** · 03-27-09, 09:07 AM

Originally Posted by Retdetsgt

It's interesting though that the appeals court didn't see the ADA as part of it. I'm wondering about that. You would think they would be aware of any ADA clause that would be relevant. I would have thought so too.

I agree, it's a stupid reason to fire someone. That's why I'm suspicious there aren't some other reasons behind this.

ADA is a Federal law... Maybe PA doesn't have an equivalant law, so he might have to sue them in Federal court. Not sure about that.

**Retdetsgt** · 03-27-09, 10:55 AM

Originally Posted by TXCharlie

ADA is a Federal law... Maybe PA doesn't have an equivalant law, so he might have to sue them in Federal court. Not sure about that.

I don't know either. I assume the Commonwealth Appeals Court is a higher court consisting of more than one judge. Even though ADA is federal, I would think they would take that into consideration rather than let it go to that. You would think those judges would be familiar with the ADA,

But on the other hand, it's a bizarre ruling to begin with, ADA or not.

**Ducky** · 03-27-09, 02:50 PM

I wonder if someone will fire off a letter to the reporter who penned the article, mentioning the ADA? Sometimes a bit of a nudge from the media is enough to get the ball rolling. Then again, if the case is deeper than what it appears, then the only thing that would happen is some interesting questions.

**Xiphos** · 03-27-09, 02:58 PM

I would consider the loss of smell an asset on this job. Some of the places we go into.... Yuk.

But they make a good point about being able to smell things like dangerous chemicals or even a fire. However, if it were that important, it should be tested as part of the hiring process. If it wasn't a requirement before, how can they suddenly decide it is now?

I agree that while it's an important sense it probably isn't critical or it should have been a hiring requirement. I'm voting with the others that the department is trying to get rid of him any way they can.

**IndianaFuzz** · 03-27-09, 08:34 PM

I guess in PA, you better not get caught with a cold. When I get a cold, I can't smell well at all. I could end up suspended for temporary lack of smelling cause of my cold...........

I agree this is a load. There has to be much more to the story.

**Captain America** · 03-27-09, 08:53 PM

Originally Posted by IndianaFuzz

I agree this is a load. There has to be much more to the story.

Has to be a back story, something stinks about this............

**TXCharlie** · 03-27-09, 09:55 PM

Originally Posted by Xiphos

I would consider the loss of smell an asset on this job. Some of the places we go into.... Yuk.

Good point - We had to do a building search of a vet office because of an open door a couple of months ago. So I open up this chest-type freezer to make sure no one was in there.

The smell almost knocked me over, and it was full of dead dogs & cats - Well not full full, but it had enough.

On the way out, the Sarge informed me to never open that freezer because it's where they put the animals after they euthanize them - but she told me that after I'd already done it.

Apparently from the smell, it's an old freezer that doesn't freeze very well, or else they were very energy-conscious