Summary
In Cheney v. City of Somersworth, 122 N.H. 130, 441 A.2d 1172, 1173 (1982), the court held that an "order" which when disobeyed is sufficient cause for dismissal from a police department, is a command or direction authoritatively given and encompasses commands, instructions, and directions emanating from a superior which directs or requests a subordinate's action.
Summary of this case from Travers v. Baltimore Police DeptOpinion
No. 81-047
Decided February 19, 1982
1. Municipal Corporations — Police Officers — Dismissal Procedures On appeal from a determination of a police commission, the superior court must uphold the police commission's orders unless they are shown to be illegal, unjust, or unreasonable.
2. Municipal Corporations — Police Officers — Dismissal Procedures Where police officer, who had been discharged for disobeying an order, did not establish a prima facie case, and a reasonable fact-finder could not have found that the officer was discharged without cause, superior court's granting of motion for a directed verdict against the officer upon appeal from determination of police commission would be affirmed.
3. Words and Phrases — Order An order is a command or direction authoritatively given.
4. Words and Phrases — Order An order encompasses commands, instructions, and directions emanating from a superior which direct a subordinate's actions.
5. Words and Phrases — Order An order is not a suggestion or request but a command which leaves no room for the exercise of discretion.
6. Municipal Corporations — Police Officers — Dismissal Procedures Where police officer appealed police commission's order dismissing him because he disobeyed an order, his burden was to show that the police commission's order was illegal, unjust or unreasonable.
7. Municipal Corporations — Police Officers — Dismissal Procedures Where, on appeal from superior court's granting of motion for directed verdict against police officer upon appeal from decision of police commission discharging officer, the evidence indicated that the officer had disobeyed an order to stop interfering with police telephone recording and dispatch systems by having the dispatcher leave her desk and use another telephone not connected to the recording system, and the officer was discharged for disobeying the order, the superior court could reasonably have found that the police commission's order discharging the officer was not illegal, unjust or unreasonable.
8. Municipal Corporations — Police Officers — Dismissal Procedures A full-time police officer can be removed for cause, and the infraction of police force rules has been recognized as cause for removal. RSA 41:48.
9. Municipal Corporations — Police Officers — Dismissal Procedures Where police officer, who was ordered to stop interfering with police telephone recording and dispatch systems, disobeyed the order, by disobeying the order the officer committed an infraction which was cause for removal, and as a matter of law a reasonable fact-finder could not have found that the officer was discharged without cause. RSA 41:48.
Fisher, Parsons, Moran, of Dover (Edward T. Clancy on the brief and Robert E. Fisher orally), for the plaintiff.
Robert L. Steuk, of Exeter, by brief and orally, for the defendants.
The issue in this case is whether the superior court erred when it upheld the Somersworth Police Commission's decision to discharge the plaintiff for disobeying an order. We find no error and affirm.
Michael Cheney was a full-time police officer on the Somersworth Police Department in January 1979. On January 12, 1979, when Cheney was on duty, he received a radio call from the dispatcher asking him for a number where he could be reached. Cheney gave her the number of a public telephone, and the dispatcher called him there with the message that Ann Libby, another officer's wife, wanted Cheney to call her. Normally, all calls to the dispatcher are taped, but this conversation was not recorded because the dispatcher turned off the tape.
Shortly thereafter, Sergeant Morse called Cheney on his car radio and asked to meet him at T C Electronics. When they met, Sergeant Morse asked Cheney about the call he had just received from the dispatcher. Cheney related the message he had received, and was informed that his call had not been recorded because the dispatcher shut off the tape. Sergeant Morse told Cheney "This . . . has got to cease" and left. During his lunch break, the plaintiff called the dispatcher, asking her to use the telephone on the watch commander's desk, about ten feet from her post. This telephone was not connected to the taping system. Cheney was later discharged for making this unlogged call. At trial, the plaintiff was asked: "Did you advise [the dispatcher] when you called her to pick up the other phone, that you didn't want the conversation taped?" He answered: "Yes, sir, . . . so she wouldn't shut off and erase the tapes."
On January 27, 1979, the Somersworth police chief gave Cheney a notice that he was being terminated for violating the order of a superior officer. The Somersworth Police Commission upheld the order. Cheney appealed to the Strafford County Superior Court. Goode, J., granted the defendants' motion for a directed verdict, and the plaintiff appealed to this court.
[1, 2] The superior court must uphold the police commission's orders unless the plaintiff shows that they are illegal, unjust, or unreasonable. Ingersoll v. Williams, 118 N.H. 135, 139, 383 A.2d 1119, 1121 (1978). In granting the defendants' motion for directed verdict, the court found that the plaintiff's evidence could not have supported a verdict in his favor. Welch v. Fitzgerald-Hicks Dodge, Inc., 121 N.H. 358, 361, 430 A.2d 144, 146 (1981). Because the plaintiff did not establish a prima facie case, see id. at 363, 430 A.2d at 149, and because a reasonable fact-finder could not have found that the plaintiff was discharged without cause, see id., 430 A.2d at 148, we affirm.
[3-5] The plaintiff challenges Sergeant Morse's "order," contending that he could not have disobeyed a superior's order because none was issued. An order is a "command or direction authoritatively given . . . ." Brady v. Interstate Commerce Comm'n, 43 F.2d 847, 850 (N.D.W.Va. 1930). It encompasses commands, instructions, and directions emanating from a superior which direct a subordinate's actions. Finnegan v. Railroad, 261 Mo. 481, 507, 508, 169 S.W. 969, 975 (1914). An order is not a "suggestion" or "request" but a command which leaves no room for the exercise of discretion. Artificial Ice Cold Storage Co. v. Martin, 102 Ind. App. 74, 80, 198 N.E. 446, 449 (1935). See also Foote v. State Personnel Comm'n, 116 N.H. 145, 148, 355 A.2d 412, 414 (1976) (willful insubordination is refusal "to accede to a legitimate and reasonable demand of the employer").
At their meeting, Sergeant Morse told Cheney that his practice of evading the taping system had to cease, By saying "This . . . has got to cease," Sergeant Morse ordered Cheney to stop interfering with the tape and dispatch systems. Cheney disobeyed this order by having the dispatcher leave her desk and use another telephone not connected to the taping system.
The plaintiff argues that there was no statutory "cause" justifying his dismissal. We disagree. Cheney's burden was to show that the Somersworth Police Commission's order was illegal, unjust, or unreasonable, a "very heavy burden." Ingersoll v. Williams, 118 N.H. at 139, 383 A.2d at 1122.
[7-9] From the evidence before it, the trial court could reasonably have found that the police commission's order was not illegal, unjust, or unreasonable. A full-time police officer can be removed "for cause." RSA 41:48. This court has recognized infraction of police force rules as "cause." See Ingersoll v. Williams, 118 N.H. at 137, 383 A.2d at 1120. By disobeying an order, the plaintiff committed such an infraction. We find as a matter of law that a reasonable fact-finder could not have reached a verdict in the plaintiff's favor. See Welch v. Fitzgerald-Hicks Dodge, Inc., 121 N.H. at 361, 430 A.2d at 146.
Affirmed.
All concurred.