Insubordination Findings Overruled

Posted 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 The arbitrator ruled that the evidence did not establish that the officer “knowingly failed to follow an order”, and rescinded the suspension.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.