Applying the “Obey Now, Grieve Later” Rule - Part I

By Terrence P. Dwyer, Esq.
Police1 Liability and Litigation Columnist

As a police union attorney I am called upon to represent officers in disciplinary cases. When I receive a case, the initial intake involves a review of the specific charges and the rule or regulation alleged to have been violated. Further case review involves the officer’s version of the incident against the charges and regulations. Once I complete this mini-investigation of facts, I have a fairly good grasp of the matter and how my client should proceed.

Disciplinary cases come in all forms — from the very serious involving potential termination to the more frequent, minor transgressions resulting in nominal punishment. In fact, if the charge is relatively minor I am frequently left out of the situation and the whole affair is handled by the union delegate.

The representation of an officer in a disciplinary case is mostly a matter of lessening the potential penalty to be assessed against the officer. There is a mitigation of the departmental claim, a balancing of the employer’s interest in a well-functioning agency, and the officer’s continued use and vitality to the agency. There is, of course, the ever-present protection of the officer’s rights and employment interests. Unfortunately, in a large number of cases I receive, the situation is beyond the point where I can provide advice and counsel to avoid disciplinary action.

The most common scenario I encounter is when an officer has been accused of not following an order and subsequently charged with insubordination. Despite periodic reminders to union delegates and legal updates on the union Web site, I find some officers create unnecessary situations for themselves by allowing personality disputes with supervisors and ensuing resentments to build into tempestuous work relationships.

When the inevitable clash of wills occurs, the officer is going to be on the losing end of the labor-management relationship. This lost battle will eventually culminate in an insubordination charge. What constitutes a charge of insubordination and the sufficiency of such charge is not the purpose of this article, though it is recognized that within a weak command structure it is all too commonly used. Occasionally the insubordination charge will be dismissed due to a regulation being either too vague or overly broad in its application.

Once the charge is initiated, the employer’s burden is to prove the misconduct by substantial evidence. This evidentiary burden requires the petitioning employer to prove its case by a standard that is less than the criminal law’s “beyond a reasonable doubt” burden but more than the civil standard of a “preponderance of the evidence.”

Black’s Law Dictionary defines this standard as one in which the administrative tribunal can reasonably base its decision from the supporting evidence. In the context of an insubordination charge, an employer need only show that a lawful order was given and the employee disobeyed that order. The proof is straightforward and simple, especially if the charges are based on a clearly articulated policy. But this is not to say all insubordination charges are of equal weight and outcome. There are a few exceptions to the blind obedience of a superior officer’s directives, though one must tread cautiously in this area.

The “obey now, grieve later” rule is a firmly-grounded concept in private and public sector labor law. It is a concept relied on in administrative law decisions, employment arbitration cases, and supported by state and federal court decisions. The rule promotes the grievance process as the best means for an employee to challenge an order or directive he believes is improper.

Its premise is to ensure an orderly labor environment where supervisory directives and orders are followed without question or dispute. The rule applies in all work contexts with variations depending on the type of employment and whether it is a private sector or public sector employee. Other factors such as the employment agreement and the status of the employee, either as a contract or “at-will” employee, will have some impact.

However, the rule’s effect is heightened within the paramilitary structure of policing and other law enforcement employment. Administrative law decisions in New York, for example, have been quite clear in the distinction with other forms of employment when the applying the rule: “Especially in the quasi-military command structure, obedience to orders is quite important. In general, orders are subject to the obey now, grieve later rule, exceptions to which are few and narrow.” Department of Probation v. James, NYC OATH Index No. 535/90 (2/6/90).

In general, administrative courts have recognized that an aggrieved employee has an avenue to redress any perceived or actual wrong in the form of grievances. The U.S. Supreme Court in Vaca v. Sipes acknowledged the grievance process as an expedient good-faith means to settle employment complaints short of arbitration. Many law enforcement unions structure provisions into their collective bargaining agreements to address improper actions taken by management.

The federal Civil Service Reform Act of 1978 (CSRA) requires federal employee unions to include grievance resolution procedures in their collective bargaining agreements. Some states provide similar guidelines in their statutes or through alternate dispute resolution remedies. Wherever the right is derived from it resides upon a strong public policy of stabilizing the work environment.

Still, there are a limited number of circumstances when an employee will be justified in not obeying an order. These instances are rare and closely scrutinized by the courts. There are three generally recognized exceptions to the “obey now, grieve later” rule: 1) when the order is illegal; 2) when the order is beyond the power of management; and 3) when compliance with the order would pose a threat to the safety, health or welfare of the officer or another.

It is risky for any police officer to make a unilateral assumption that a supervisor does not have the power to issue a particular order. It is a bit clearer to discern whether or not an order is lawful. An example would be a supervisor’s order to an officer to make an arrest lacking probable cause but based on racial animus. It is obvious there are legal and Constitutional infirmities to such an order. An order to assault a handcuffed defendant in order to obtain information is again a fairly obvious example. In the real world though, these distinctions may not be so obvious, hence the inherent risk in disobeying an order. The third exception — danger to the safety, health, or welfare of another — does not lend itself to a simpler analysis but it is a concept police officers may have a surer sense of establishing.

This past summer I handled a case involving the application of this third exception to the “obey now, grieve later” rule. It is illustrative of the circumstances surrounding the application of the exception. The case began with the officers’ response to a 911 poll for the nearest available patrol for a domestic dispute in progress. The officers were within minutes of the residence located in a rural patrol area. The nearest state police unit was fifteen minutes away. The officers involved belong to a specialized police department responsible for patrolling the vast New York City water supply system. Earlier in the year, the agency issued an internal order requiring all its officers to request supervisory approval prior to responding to 911 calls. Each line supervisor established individual protocol within their precincts for handling 911 calls. My two officer clients were aware of their shift supervisor’s tacit approval of all 911 call responses — unfortunately he was on disability leave on the day in question and not available for approval.

The officers now had a dilemma: do they wait until a supervisor is contacted and either approves or denies their request, or do they respond and seek approval in the interim? As a background to this story it is worth noting that in this rural patrol area there are communication problems due to the topography and numerous hills and valleys. Also, the officers were within three minutes of the residence which is located across from a large reservoir they patrol within the watershed area. Most importantly, they had been to the home on prior calls, at least once involving a prior violent domestic complaint.

Next week, I’ll detail what happened in this case. To whet your appetite, I’ll leave you with this: At the end of their tour the officers had no idea that, aside from receiving the gratitude of their state police colleague for the assistance, they would spend the next year justifying their actions before an informal disciplinary board and at a subsequent disciplinary trial.

Read Part II.

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