By Anthony Rice
In City of Waxahachie, the Arbitrator upheld the termination of a Sergeant for numerous department violations where the Sergeant used city equipment to disseminate investigative findings that dismissed a subordinate’s complaint against the Sergeant, despite a clear order from the Chief not to do so.
This case arose out of an incident in which an Officer filed an age discrimination claim against the Sergeant. The discrimination claim alleged that the Sergeant denied the Officer the right to leave work when he was ill. An Internal Affairs investigation “exonerated” the Sergeant “on charges for not letting the complainant go home when ill, leaving his duty post, playing a video game, giving conflicting orders, humiliating the complainant, going to the gym at the beginning of the shift, maliciously telling the dispatcher to give every call to the complainant.” The Sergeant, seeking to clear his name, distributed the IA findings to police officers’ mailboxes, supervisors’ desks, and attached a copy to two separate bulletin boards. Incredibly, he reproduced and circulated the IA findings while on duty and against the Chief’s orders.
The Sergeant was later terminated for insubordination, lack of Professionalism, personal use of City property and equipment, Unbecoming conduct, Neglect of Duty, Unsatisfactory Performance, Courtesy to fellow Officers and Dissemination of Confidential information. At the hearing the Sergeant acknowledged that he prepared the 50 copies, consisting of 16 pages each, while on duty using City equipment and supplies, claiming this took only “10 minutes.” The Arbitrator found it difficult to comprehend how these tasks could be performed in only 10 minutes and found that the Sergeant could not have been paying attention to his duties while reproducing, assembling, and distributing the materials.
It is natural that when a supervisor, such as the [Sergeant], has been accused of something and the supervisor is later exonerated, the supervisor would like others to know . . . In this case, the [Sergeant] went too far proclaiming his innocence. The City has established by the preponderance of the evidence that the Chief of Police told the [Sergeant] that he did not want the material distributed. It is not necessary for a Chief of Police to preface an order with the statement “This is an order” before it becomes insubordination. The statement must be clear and unambiguous, acknowledge and understood by the subordinate. This occurred in this case. On two occasions, the Chief of Police told the [Sergeant] that he did not want the documents containing confidential information to be published.
Editor’s Note (Jim Cline): Defining when the disregard of an order constitutes bona fide “insubordination” is somewhat challenging. As we note in Chapter 6 of our Representatives Manual, “Arbitrators generally will not sustain insubordination charges except when the employee was specifically advised of the consequences for failing to abide by the order or rule” and require that the following elements be met to establish insubordination:
- The person giving the order had authority to do so;
- The order was work-related;
- The order was clear and understood by the employee;
- The consequences of disobedience where known to the employee; and
- The employee has sufficient time to comply.
Typically this is understood to mean that a “double order” essentially must be given: The initial order which, once refused, is followed by a second order confirming that the employee understands that refusal will be deemed insubordinate.
In this case, the Arbitrator concluded that was achieved. The Chief told the Sergeant not once, but twice, that he was not post the information. Although the Chief might not have made “the consequences of disobedience known” as required by the standard insubordination test, the Arbitrator here found it sufficient that the employee clearly understood that he was receiving an order.
