INSUBORDINATION FINDINGS
OVERRULED
By Rocky Lucia
A police officer was
recently charged with insubordination arising out of an alleged order
concerning restrictions on communications with his estranged spouse. The
spouse had filed a complaint with the department concerning off-duty
conduct. The department conducted an investigation of the underlying
allegations, which were not sustained. However, the department found
that the officer had been insubordinate as a result of certain
communications with the spouse during the investigation. A lengthy
suspension was imposed by the department.
The discipline was based
on the department’s assertion that, at the outset of the
investigation, the supervisor had "ordered" the officer not to
speak to his spouse concerning the investigation. The alleged order was
given during a brief meeting between the supervisor and the officer in
the supervisor’s office. At the appeal hearing, there was little
discrepancy between the testimony of the supervisor and officer relative
to the actual statement made by the supervisor. Both agreed that the
word "order" was not used by the supervisor. The supervisor
testified that it was clear to him that he had delivered an order.
However, the officer interpreted the comments as merely personal
suggestions or advice, not as a direct order.
The arbitrator noted that
in the absence of the "magical phrase," "I order
you," the existence of an order can be established by looking to
the totality of the circumstances, as the officer knew them at the time
the alleged order was given. In this case, the arbitrator found that
there existed a "long term" and "cordial"
relationship between the supervisor and the officer which predated their
employment at the department. He noted that this personal relationship
could not be "ignored." Furthermore, the arbitrator found that
the two had engaged in prior "casual" communications regarding
the troubled marriage. Considering these circumstances, the arbitrator
held that the officer had a "reasonable basis" for treating
the supervisor’s admonition as friendly advice rather than a direct
order. The arbitrator ruled that the evidence did not establish that the
officer "knowingly failed to follow an order", and rescinded
the suspension.
Rocky Lucia is an
attorney with Rains, Lucia & Wilkinson. He has been providing
representation for LDF members throughout Northern California for over a
decade.
LDF Home Page | News
Article Index
