By William Wiley, February 15, 2017
Recently, the Washington Post asked civil servant readers when they would be willing to refuse to comply with policy directives coming out of our new Administration. Hopefully, you FELTG-ers know that the answer to this question is more legal than philosophical.
The basic rule in government is that an employee must do what his supervisor tells him to do. As President Trump is the chief executive of the executive branch, if you are a federal government employee, he is in your supervisory chain of command. Therefore, if he directly or through one of his Trumpette underlings tells you to do something (5 USC 301), you are obligated to do it or open to being found to be insubordinate.
However, like many rules in life, there are exceptions. These excuses for not obeying a supervisory order have developed over the years through MSPB case law:
- Unsafe. A number of federal employees perform work every day that a lay person might find to be unsafe; e.g., defusing some of those spent munitions that can be found at various military bases around the country. However, a civil servant is not guilty of insubordination if she refuses to obey an order that would put her in an unreasonably unsafe situation, given the nature of her job.
- Illegal. An employee does not have to obey an order that is illegal in itself. For example, if an employee is ordered to forego a Constitutional right (e.g., the Constitutional right to privacy surfaced in one or two cases), he can refuse it. Or, to undergo a psychiatric exam or to produce medical documentation that is not authorized by law.
- Requires an Illegal Response. In this case, closely related to the former, even if the order itself is not illegal, a federal employee does not have to obey a policy directive that would require her to violate a law to comply with the order. For example, a law enforcement officer could refuse to obey an order that requires her to treat members of one race more harshly than members of another race.
Although these exceptions are relatively well-established in case law, here’s the challenge:
If you are ordered to implement a supervisory order that you believe falls into one of these three categories and you choose to disobey that order, you are betting your job that you are correct.
Let’s say, hypothetically speaking, of course, that you as a federal employee are directed to detain members of a certain group of individuals who are attempting to enter the United States. If you believe that order would require you to violate the Constitutional rights of those individuals, you cannot be required to obey that order as you would be violating a law if you were to do so. Unfortunately, the only way you can establish that you do not have to obey that order is to disobey it, get fired for insubordination, and then on appeal, convince some judge that you were correct as to the un-Constitutional nature of the order. If you are found to be correct, you get back pay and your job back. If you are mistaken, if the order did not violate the Constitution, you stay fired.
This is a tremendously difficult situation. Few of us, this writer included, are qualified to finesse the fine points of Constitutional law out of a situation in real time with the boss yelling, “The President said do it; do it!” Few can stand the prospect of no income for several months while the subsequent removal case gets passed on judicially.
But there really is no alternative. If we were to grant federal employees the right to refuse to obey orders simply because they “believed” them to be illegal, then chaos would rein. Civil servants across America could find the most straightforward orders to be illegal, then keep their jobs even if eventually the orders were found to be perfectly legal.
“Bill, lunch is 30 minutes.”
“Sorry, boss. That’s unsafe as I need at least two hours to digest my meal. Plus, I think I read about some kind of law several years ago that says I get two paid hours for lunch because I am over 40 years old. Or, something like that.”
Bottom Line: if you are a career civil servant (not a political appointee as was the recently-former Acting Attorney General) and you choose to refuse to obey a new policy directive, be aware of the potential risks and consequences. Being right in the eyes of your god doesn’t necessarily put food on the table. Wiley@FELTG.com