Not Following Orders? It Could Result in an Insubordination Allegation

Posted by Dan ThompsonGoyette & Associates

Most people would agree that any form of law enforcement is considered a para-military organization. This is to include all aspects of custody and control, whether it be at the county jail or state prison. Within such organizations, the chain of command is the backbone of operations, with ìordersî being given to carry out the function and purpose of the facility.

Most people in the world today understand that when an order is given by a ranking superior, it is meant to be obeyed. To not obey often carries with it a very harsh penalty. In the military, it may result in being court-martialed. In California’s prison system, not following order will almost certainly result in a charge of ìinsubordinationî and ìwillful disobedienceî as set forth by Government Code ß 19572. When an employee is found to be at fault for either charge, the penalty is usually quite harsh and frequently is as severe as the termination of employment.

Correctional Sergeant Albert Forrey* found himself suffering a 10% reduction in pay for 12 months for allegations, among other things, of insubordination and willful disobedience — a huge blow in today’s struggling economy.

Forrey received disciplinary action after he had allegedly refused to follow orders of a correctional lieutenant who was attempting to assign him to preside over an inmate appeal hearing. Inmate appeals are resolved through a multi-step hearing process where sergeants and lieutenants act as ìjudgesî in reviewing the evidence and hearing witnesses. Normally, Forrey would not have had a problem with this, however, in this particular case, he was the focus of the complaint filed by the inmate.

Title 15, as well as the Department Operations Manual, are crystal clear about this scenario. In order to avoid challenges to the inmate’s due process, the law states that appeals ìshall notî be reviewed by a person who participated in the matter being appealed. Forrey knew this and brought it to the lieutenant’s attention, but to no avail. The lieutenant continued to order Forrey to handle the appeal. Rather than back down, Forrey stood his ground and chose to decline to accept the assignment at the risk of disciplinary action. As a result, Forrey did in fact receive discipline. He was assigned to Goyette & Associates for representation. The case was handled by attorney Dan Thompson, who promptly filed an appeal on Forrey’s behalf to the State Personnel Board.

Once an appeal is filed, the parties appeared before an Administrative Law Judge at a pre-hearing settlement conference to attempt to resolve the matter short of an administrative trial. At the settlement conference, Dan made it clear that the order given to Forrey was unlawful and therefore did not require Forrey’s compliance.

The California Supreme Court addressed a similar case in Parris v. Civil Service Commission, 66 Cal. 2nd. 260. In that case, a probation officer refused an order to search a residence during a probation search when he felt the order was in violation of the occupants’ civil rights. The officer’s department took disciplinary action against him, which was appealed all the way to the highest court in the state. There, the Court found that at the time the order was given, the officer had a reasonable belief the order was unlawful. The Court further concluded that the order was in fact in violation of constitutionally-protected civil rights and overturned the disciplinary action.

Dan presented this case to ALJ Gregory Brown and argued that the order given to Forrey by the lieutenant was a clear violation of both California law and department policy. As such, Forrey was not required to obey this order as given. Judge Brown strongly agreed with Forrey’s position and when it came time for the department to present their side, Brown quickly put them in their place.

As a result, 10% for 12 months reduction in pay was reduced to a letter of instruction regarding professional conduct, and the charges of insubordination and willful disobedience were removed. It was not only a legally proper outcome but a huge financial victory for the sergeant.

If given an order in the course of your duties, it is generally prudent to be sure to obey that order and not risk insubordination. Unless the order will require you to commit an instant crime or cause or risk serious harm to another, usually you can resolve the matter without being insubordinate. However, the fact remains that the chain-of-command authority does not run unchecked. Unlawful orders do not command obedience and the judicial system will treat that just as unfavorably as if a lawful order were truly disobeyed.

If you ever have a question about the legality of an order you have been given, contact your expert legal counsel immediately, who specializes in understanding and representing employees who work in para-military institutions.

*Sergeant Forrey’s name has been changed to protect privacy.