LCW Partner James Oldendorph successfully represented a city in a peace officer’s disciplinary appeal.
In June 2020, a city’s police department (Department) learned of a large protest that was planned in response to George Floyd’s killing. The Department’s chief of police emailed personnel to advise of a tactical alert and to order all sworn personnel to report for duty on the day of the protest unless a supervisor instructed otherwise. On the morning of the protest, a police officer informed a sergeant that he would not report because he was going to his family’s restaurant due to rioting near that location. The sergeant explained that all sworn personnel were required to report to duty that day in accordance with the tactical alert. The officer reiterated that he would not report as ordered and that he was going to his family’s restaurant. A captain then offered to get the officer’s family housed to ensure their safety so that the officer could report for duty as ordered. The officer informed the captain that he still intended to go to the restaurant to protect his family’s business. The captain advised that the officer would be deemed insubordinate if he did not report to work. Despite this, the officer did not report as ordered.
The Department found that the officer violated multiple policies by failing to comply with the police chief’s emailed directive and the captain’s verbal order. The officer’s policy violations included unauthorized absence, neglect of duty, disobedience, and insubordination. In January 2021, the officer received a 30-day suspension without pay based on these findings.
The police officer appealed his suspension to the city manager. The city manager upheld the decision. The police officer then filed an appeal for a hearing before the city’s personnel board (“Board”), alleging that he did not follow the directives of his superior officers in order to protect his family. The Board found that the officer’s statement to his captain that he needed to protect his family’s business did not support this contention. The Board further acknowledged that the Department offered to protect the officer’s family, but the officer declined.
The officer also alleged that his conversation with the captain was an improper interrogation in violation of the Public Safety Officers Procedural Bill of Rights Act (POBR). The Board disagreed, noting that the captain’s conversation was not an interrogation, but rather, an offer to provide accommodation to the officer and his family during the protest. The Board found no POBR violation for two reasons. First, the captain did not ask the officer any questions about any rule violation that could lead to discipline. Second, the captain immediately ended the call after the officer confirmed that he was not going to report to work. Based on the foregoing, the Board upheld the police officer’s 30-day unpaid suspension.
Note:
This case reaffirms that significant discipline is often appropriate in cases of insubordination. In fact, the Board noted that the police officer’s conduct represented one of the highest degrees of disloyalty a police officer could display towards their department and community. The Board noted that the officer’s conduct likely warranted termination, but that the Department was lenient given the officer’s state of mind as to his family’s business.
