EdPDLaw - Defending the Insubordination Charge

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DEFENDING THE INSUBORDINATION CHARGE

In order to defend a charge of insubordination we must first define what constitutes insubordination.

Although definitions may vary from Department to Department, a standard LEO Rule & Regulation defines Insubordination as:

INSUBORDINATION: EMPLOYEES SHALL NOT:

A. Fail or refuse to obey a lawful order given by a supervisor;

B. Use any disrespectful or abusive language or action towards a supervisor.

The crucial element in subparagraph A is "lawful order". This should be defined in the Chapter Titled "Orders" of the LEO Rules & Regulations. It should read similar to the following:

ISSUING ORDERS

A. MANNER OF ISSUING ORDERS:

1. Orders from a supervisor to a subordinate shall be in clear and understandable language.

B. UNLAWFUL ORDERS:

1. No supervisor shall knowingly issue any order which is in violation of any law or ordinance.

C. IMPROPER ORDERS:

1. No supervisor shall knowingly issue an order which is in violation of any department rule, policy or procedure.

You will now need to determine if the order was:

1. In clear and understandable language;

2. In violation of any law & ordinance; and

3. In violation of any department rule, policy or procedure.

After you determine this, you need to identify the officer's responsibility in each situation which should also be contained in the same chapter under "Orders".

RECEIVING ORDERS

A. QUESTIONS REGARDING ORDERS:

1. Employees in doubt as to the nature and detail of an order shall seek clarification from their supervisors by going through the chain of command.

B. OBEDIENCE TO UNLAWFUL ORDERS:

1. Employees are not required to obey any order which is contrary to any law or ordinance.

C. OBEDIENCE TO IMPROPER ORDERS:

1. Employees who are given any order which is contrary to department rules and regulations or directives must first obey the order to the best of their ability, and then report the improper order as provided herein.

D. CONFLICTING ORDERS:

1. Upon receipt of an order conflicting with any previous order, the employee affected will advise the person issuing the second order of this fact. Responsibility for countermanding the original order rests with the individual issuing the second order. If so directed, the latter order shall be obeyed first. Orders will be countermanded, or conflicting issues will be issued only when reasonably necessary for the good of the department.

E. REPORTS OF UNLAWFUL OR IMPROPER ORDERS:

1. An employee receiving an unlawful or improper order shall, at first opportunity, report it in writing to the next highest ranking supervisor above the supervisor who issued the unlawful or improper order. Action regarding such a report shall be conducted by the Chief of Police.

F. CRITICISM OF OFFICIAL ACTS OR ORDERS:

1. Employees shall not criticize the actions or orders of any department employee in a manner which is defamatory, obscene, or which tends to impair the efficient operations of the department.

* If your Department or Agency does not define orders and how to respond to same, this can be used as a part of the defense. This information should be passed on to the Union/Officer's attorney.

This flow chart may be of assistance in determining a course of action:

EdPDLaw INSUBORDINATION ACTION CHART

INAPPROPRIATE LANGUAGE

LANGUAGE

Subparagraph B in the definition of Insubordination states:

B. Any disrespectful language or abusive language or action towards a supervisor.

This area becomes broader in definition and left open to interpretation. I have used numerous successful defenses in this area.

A successful defense could be that the comment was not directed "towards" the Supervisor:

Many times the remark is made in response to a conversation with a supervisor. The Officer then turns and walks away mumbling "FUCKING ASSHOLE" (or something more creative) under his/her breath. This statement is then overheard by a co-worker of supervisor who reports it. The Officer is then ordered to write a report. (Read "Put it in Writing" prior to complying with this request).

Most importantly, the comment was not made "towards" the supervisor, nor was it intended to be heard by anyone. By uttering the comment under his breath, as opposed to shouting it loudly, the Officer had the expectation of privacy.

In the case where the Officer just SNAPS and goes off on the Supervisor, it is important to look at how the Supervisor treated the officer both prior to and during the "incident". Just as officers are held to a higher standard than civilian/citizens, Supervisors are held to higher standards than their subordinates. These standards are defined in both Rules & Regulations and Policies & Procedures.

Supervisors are not permitted to use abusive or disrespectful language to a subordinate and should be scrutinized and charged for same. This behavior should be grieved through the CBA under all applicable chapters.

Lastly, although the stressors in the Officer's personal life have not been found as grounds to dismiss a charge of insubordination, they have been used to "mitigate" or lesson the penalty imposed. Evaluate the entire situation.

CASE LAW

Am. Jur. 2d. Insubordination

Corpis Juris Secundum - Civil Service Restrictions

Chief Palamara v. Township of Irvington, CSV3768-02, OAL/NJ

Sansbury v. NJ Dept.of Human Services, CSV38-00, OAL/NJ

Retired Sgt. Mathis v. Police Department of Jersey City, CSV10283-99, OAL/NJ

Bessant v. Dept. of Treasury, CSV2117-99, OAL/NJ

Balkaran v. Northern State Corrections, 94 NJAR 2d CSV 534 NJ

The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Excessive Discipline Protection Database

DEFENDING THE INSUBORDINATION CHARGE