MEMORANDUMState ofPasstheexam

TO:CLA EXAMINEE, Paralegal

DATE:

FROM:Christy Powers, Staff Attorney

RE:Gary Crawford

New Client File

Gary Crawford recently visited our office due to his concerns with his employment as a lab technician with thePasstheexam Department of Fish and Game Conservation.He is also an enlisted man with the US Marine Corp Reserve.He really enjoys the reserves as it allows for him to give back to his country in many forms.His availability to travel is not always present but he really likes to travel when he gets the chance.His hopes in joining were to pursue travel.

Three weeks ago, Crawford applied for a 3 week training program for scuba diving with the Marine Corp.His app was initially denied due to lack of space but now there is space open.He received this notice on Friday the 17^th.He was to begin Monday the 20^th.

Crawford called his supervisor immediately on the 17^thto advise him of the acceptance into this special program.He requested a leave of absence.This was the first request of its kind given to the supervisor.No one else in the Department has ever made such a request.The supervisor denied the leave request and told him to report for work on Monday morning.Crawford went to the 3 week program and upon his return, the supervisor had fired him for absence without leave and insubordination.

Please read the following information and determine whether Mr. Crawford was illegally dismissed from his job in the State of Passtheexam.

State of PASSTHEEXAM Revised Statutes

A.Passtheexam Revised Statute 408.240 (2004):

(1)Whenever any public officer or employee leaves a position after June 24, 1990, whether voluntarily or involuntarily, in order to perform military duty, such office or position shall not become vacant, nor shall the officer or employee be subject to removal as a consequence thereof.

B.Passtheexam Revised Statute 408.210 (2004):

As used in this Act, the term "military duty" shall include training and service performed by an inductee, enlistee or reservist or any entrant into a temporary component of the Armed Forces of the United States, ... but does not include active duty training as a reservist in the Armed Forces of the United States or as a member of the National Guard of the United States where the call is for a period of 15 days or less.

C.Passtheexam Revised Statute 905.788 (2004):

The Superintendent if the Department of Fish and Game Conservation shall have the power to dismiss any employee for absence without leave or for insubordination...

State of PASSTHEEXAM Relevant Case Law

Stephens v. Department of State Police

19 Pte. 119 (2008)

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

This appeal is from a judgment of the circuit court in a writ of review proceeding underPTE 34.010et seq. The proceeding from which the writ was taken was a disciplinary matter heard by a trial board of the Passtheexam State Police pursuant to the proceedings provided for in PTE ch. 181. The plaintiff was a trooperin the Passtheexam State Police who applied, as a United States Army reserve officer, to take and was accepted for a nine-week military training course in the United States Army Infantry School at Fort Benning, Georgia. He had been refused permission for the leave of absence by his commanding police officer and had been given written orders to report for regular duty on the morning on which he had left. He did not report for duty on that morning. The training course was extended to a total of 12 weeks, after which he reported for police duty. This led to the disciplinary proceeding which resulted in his removal from the police force. The trial board of police officers found that he was guilty of being absent without authorization and of insubordination by reason of his violation of a direct order to report for duty. These specifications were stated to be in violation of Article VIII, Section 1; Article II,Section 9(w) and Article IV, Section 6 of the Department of State Police Manual (1999). The circuit court after hearing affirmed the action of the superintendent in removing plaintiff pursuant to the findings of the trial board.

Our review is pursuant to PTE 34.040, which provides in pertinent part that a writ shall be 'allowed' where the tribunal, in this case the trial board of officers, '(3) (m)ade a finding or order not supported by reliable, probative and substantial evidence; or (4) (i)mproperly construed the applicable law.'PTE34.100 provides that on appeal we may 'affirm, modify, reverse or annul the decision.'

The first finding of the trial board was that plaintiff was 'wilfully absent from duty * * * without the consent of his superior officers, in violation of Article VIII, Section 1, Department of State Police Manual.'In arriving at this finding the trial board relied upon a 1984 opinion of the Attorney General of Passtheexam which held thatPTE 408.240, giving public employees a right to military leave of absence without pay for periods of active service does not apply to priods of duty over 15 days at a time which are exclusively for training. 33 Pte. Att'y Gen. 319 (Pte.1984). The opinion is quite involved but it concludes thatPTE 408.240does not apply to military training leaves of absence like that here in question. The statute (PTE 408.240)states:

'(1) Whenever any public officer or employee leaves a position after June 24, 1990, whether voluntarily or involuntarily, in order to perform military duty, such office or position shall not become vacant, nor shall the officer or employee be subject to removal as a consequence thereof. * * *'

PTE 408.210defines military duty as

'* * * Training and service Performed by an inductee, enlistee or Reservist or any entrant into a temporary component of the Armed Forces of the United States, * * * but does not include active duty training as a reservist in the Armed Forces of the United States or as a member of the National Guard of the United States where the call is for a period of 15 days or less.' (Emphasis supplied.)

Plaintiff testified that he had contemplated resigning from the state police in order to take the training course. But he consulted legal counsel before doing so, and we can only conclude that counsel advised him that the plain wording of these statutes meant that he was entitled to the leave without sacrificing his position.

(1). The wording of these statutes would seem to support plaintiff's position. Military leave is granted by the statute automatically. There is no discretionon the part of any department or official to grant or deny the leave. The statute on its face is unconditional.

Defendants argue that the granting of military leave underPTE 408.240is mandatory only for periods of military training combined with service. They interpret the statute as saying that military leave for purposes of training only is a matter of departmental policy-in this case left to the discretion of the police department. They base this conclusion on the Attorney General's opinion interpreting the statutes in question. We must make an independent determination of the meaning of the statutes.

The Attorney General's opinion notes that, when the legislature was consideringPTE 408.210and408.240in 1988, it appeared to have had before it the 'Model State Law Relating to Military Leave' contained in 'Suggested State Legislation-Program for 1989-Developed by the Council of State Governments.' The definition of military duty contained inPTE 408.210is taken almost verbatim from the 'Suggested State Legislation' except for one important difference. The original definition contained the qualification, "* * * Provided, That 'military duty' shall not include active duty training as a reservist in the armed forces of the United States or as a member of the NationalGuard of the United States Where the call is for training only." (Emphasis supplied.) The Attorney General said this provision was persuasive to demonstrate that the definition of military duty in its original form, and as enacted, was never meant to include periods of training only. Perhaps this was so, but the legislature, while using the rest of the definition, chose to eliminate the emphasized words, substituting other words about 15-days-or-less leaves ofabsence from the final draft of the statute. If the elimination of the 'training only' limitation from the definition of military duty as enacted is significant at all, it would seem to demonstrate that the legislature meant to broaden the definition to include periods for training only.

PTE 408.210seems to use the terms 'training And service' and 'training Or service' interchangeably, implying that there is no intent to distinguish between the two terms.

'* * * (T)he court is not authorized to WRITE statute or to ignore the plain meaning of unambiguous words * * *.

"* * * The court's province, after all, is to ascertain what the legislature intended from The language used, with such aid as may be found in the rules of interpretation and legitimate extrinsic sources; to construe statutes, not to enact them; to declare what the legislature has done, not what it should have done. * * *'

We conclude that under the definition of 'military duty' as contained inPTE 408.210there is no distinction between periods of service and periods of training only.

The state argues that it would be an 'absurd result which would follow from construingPTE 408.240to permit all state employees from taking unlimited leave for voluntary military training * * *.' We can see that it might well be an unsatisfactory result. We can hardly agree that it would be absurd, however. In fact, the record contains an exhibit which is an official statement from the Governor of Passtheexam urging that such leaves of absence be granted without loss ofvacation time. If the results from this statutory language are unsatisfactory, and not what the legislature intended, it may readily remedy the situation.

(2). Trooper Stephens disobeyed a direct order of his superior to report to work. Defendants argue that because of this action Stephens' dismissal for insubordination is justified. Stephens had had a similar request denied on a previous occasion, and presumably knew of the interpretation of the law that was made in the Attorney General's opinion. He testified that he had contemplated resignation from the state police in order to take training in the Army.

PTE 181.290gives the Superintendent of State Police power to remove any police officer for 'insubordination.' A search reveals no Passtheexam cases dealing with the meaning of this term as used in the statute, nor does it turn up any Passtheexam cases dealing with permissible grounds for the removal of police officers. Cases from other jurisdictions will give some idea of what other courts allow to come under the heading of 'insubordination.'

It is axiomatic that continued public employment cannot be conditioned on the abrogation of a constitutional right. SeeSlochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), where a teacher had been fired for his exercise of Fifth Amendment rights. However, public employment may be conditional on the giving up of some privileges which other citizens possess.Slocum v. Fire and Police Com. of Peoria, 8 Ill.App.3d 465 (1972).

In California 'insubordination' can be rightfully predicated only upon refusal to obey some order which a superior officer is entitled to give and is entitled tohave obeyed.Parrish v. Civil Service Commission, 66 Cal.2d 260 (1967)

Courts emphasize that an order which infringes on constitutional rights is void in this context and insubordination cannot be predicated thereon. Cf.Parrish v. Civil Service Commission, supra.

However, in the latter case, where a constitutional right was infringed by the order, the court said:

'Where a simple doubt exists as to the reasonableness or legality of an order of a superior and time is not made of the essence of the order * * * some other method might be selected * * * for its determination. * * *'75 Ohio Law Abst. at 457

We have already noted that there was ample time for Stephens to have anticipated the order and to have chosen another method of determining the matter.

PTE 180.060(2)provides that the Attorney General shall give opinions such as was given here.PTE 180.220provides that the Attorney General shall be counsel for heads of departments and that they cannot have other counsel. InState ex rel. v. Mott, 640, 97 P.2d 950 (1940),speaking of reliance upon opinions of the Attorney General, the court said:

'* * * While the secretary of state was not bound to follow such opinion, he had the right to do so and is protected while acting in good faith even though it is assumed the same was erroneous * * *. If the law were otherwise few responsible administrativeofficers would care to assume the hazards of rendering close decisions in public affairs. Officers acting in good faith have a right to rely on the opinion of the attorney general, as he is the officer designated by law to render such service * * *.'

While the general rule appears to be that an officer is not insubordinate for refusing to obey an order that is not legally valid, under the peculiar facts of this case we find an exception to exist. When the officer deliberately chose the method he did to test the law, it was at the risk of losing his position.

Affirmed.

FOLEY, Judge (dissenting).

I agree with the conclusion of the majority that the 1984 opinion of the Attorney General was incorrect and the majority statement that

'* * * (m)ilitary leave is granted by the statute automatically. There is no discretion on the part of any department or official to grant or deny the leave. The statute on its face is unconditional.'

The superintendent's order that the trooper report for police duty, in the face of the statute, was thus illegal. Upon that basis I do not agree with the conclusion of the majority that an officer must obey an illegal order or be discharged as insubordinate unless he chooses a method other than refusal to obey to test the legality of the order.

While I am in sympathy with the state's concern that the statutes involved pose problems for state employers, I agree with the majority's statement that:

'* * * If the results * * * are unsatisfactory, and not what the legislature intended, it may readily remedy the situation.'

As the majority points out, our review includes whether the trial board of officers "* * * (i)mproperly construed the applicable law." The superintendent of the state police relied upon an Attorney General's opinion, the appellant upon private legal counsel. The Attorney General's opinion was incorrect and obviously the opinion of the trooper's attorney interpreting the statute in question was correct. I see no reason why the trooper was not as entitled, at his risk, to rely upon his counsel as wasthe superintendent to rely upon the opinion of the Attorney General. There is no claim that the trooper failed to give his superiors reasonable notice of his military orders.

The wording of the statute is clear:

'(1) Whenever any * * * employee leaves a position * * * whether Voluntarily or Involuntarily, in order to perform military duty, such office or position shall not become vacant, Nor shall the * * * employee be subject to removal as a consequence thereof. * * *' (Emphasis supplied.)PTE 408.240(1).

The effect of the action of the majority is to rewrite the statute to ignore the word 'voluntarily' in it and to eliminate the words 'nor shall the * * * employee be subject to removal as a consequence thereof.' I do not think this court should assume such broad legislative powers.

I would reverse the judgment of the circuit court. I dissent.