An intercontinental right to disobey: a study of Portuguese and North American Administrative Law

 

An intercontinental right to disobey: a study of Portuguese and North American Administrative Law

(Este post foi realizado a partir do texto-base que servirá para o trabalho do projeto ELPIS, que terá maior desenvolvimento e será adaptado aos respetivos requisitos formais)

 

Abstract: This work aims to analyze Portuguese and North American Administrative Law regarding the emanation of orders with illicit content by hierarchical superiors, as well as the existence of a duty of obedience. When confronted by an order to perform an illicit action does the subordinate have to obey the order through a duty of obedience? Will the subordinate have to choose between keeping his/her job or complying with the law? These are some of the issues that we will analyze within the Portuguese and North American legal orders. Due to the fragmentation derived from the common law system and the few essays available online, this paper will be primarily based on the work developed by Robert G. Vaughn (in “The Hastings Law Journal”) and Alex Hemmer (in “The Yale Law Journal”), as well as the work developed by Professor Diogo Freitas do Amaral regarding the Portuguese Administrative Law.

 

I - Power to issue orders in the Portuguese legal system

The power to issue orders (poder de direção) in the Portuguese legal system is one of the powers of the hierarchical superior that consists in the power to issue individual and concrete commands, through which the superior imposes on the subordinate the adoption of a certain conduct. These commands can be written or given verbally. (Amaral, 2016, 4ª edição, p. 678 e ss.).

 

II – The duty to obey in both legal systems

            The Lei Geral do Trabalho em Funções Públicas, which disciplines the general civil service regime, determines in its article 73, no. 8 that the duty to obey consists of accepting and complying with the orders of the legitimate hierarchical superiors, given in the object of service and with the legal form. That being said, an order can only be disobeyed if the person who is giving that order has the powers to do so. The American system follows the same logic as referred by Robert G. Vaughn regarding a 1924 opinion (Carvin v. Chambers, 195 Cal. 212, 232) quoting “Insubordination can be rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give” and «to be lawful an order must unquestionably… be reasonably related to the duties of the subordinate officer or employee” ». Despite the age of this last quote, it was invoked in 1967 in the “Parrish v. Civil Service” case, which is extremely important for the study of this matter. That being said, Alex Hemmer also quotes the case mentioned before, referring the question if whether «under the classic formulation, a civil servant could be dismissed only for “refusal to obey an order that a superior officer is authorized to give” ».  

 

 

III – The right to disobey

            As mentioned before, the Lei Geral do Trabalho em Funções Públicas (LGTFP) says that there is only a duty of obedience if the requirements of legitimacy, object of service and legal form are fulfilled; if one of these requirements is missing, there is no duty of obedience at all. The Portuguese Constitution also reinforces this on its article 271, no. 2. Furthermore, when orders or instructions come from a null act there isn’t also a duty of obedience (Article 162, no. 1 of Código de Procedimento Administrativo). Lastly, article 271, no. 3 of the Portuguese Constitution and article 177, no. 5 of LGTFP mention that there is no duty of obedience when the fulfillment of orders or instructions implies the commission of any crime.

While in the Portuguese legal system these situations are clearly foreseen, in the American legal system, on the other hand, they were not so clear. In Parrish v. Civil Service, Parrish – a social worker - refused to obey an order by claiming that his participation in actions that involved random unscheduled visits to the homes of recipients of “Aid to Needy Children” program, could subject him to criminal penalties under the Federal Civil Rights Act due to the violation of constitutional rights. Although the Civil Service Commission and the appellate court rejected Parrish’s arguments, the case went “all the way up” to the California Supreme Court, that admitted that the visits violated the constitutional rights of third parties, upholding Parrish’s right to disobey the orders given to him.

Parrish’s case brought, however, one requirement that isn’t foreseen - at least explicitly - in Portuguese Law regarding the right to disobey, namely in article 177, which is the requirement that the rejection made by the subordinate was made in good faith. Of course, the Portuguese Civil Code has the figure of good faith and even the LGTFP mentions, in its article 70, no. 1 that The public employer and employee, in the fulfillment of their respective obligations, as well as in the exercise of the corresponding rights, must act in good faith, but this requirement is not mentioned in article 177. Having said that, would a Portuguese civil servant need to demonstrate that his/her objection to an order was made in good faith? In the American case this requirement emerged, once again, in Parrish’s case. The California Supreme Court only upheld the plaintiff’s argument because he had “reasonable grounds to believe that the operation would be unconstitutional”, that is, the argument was made in good faith (Robert V. Gaughn, 1977). The requirement of good faith would be later mentioned in Belmont v. California State Personnel Board,

Although we have already seen that Portuguese law does not provide any duty of obedience regarding the orders that entail the commission of crimes, and that the California Supreme Court applied the same logic to cases involving issues like this, Portuguese law makes a distinction between the cases mentioned above and the cases where orders involve acts that lead to the practice of illegalities.

Thus, while Parrish’s Case also applies to the cases in which civil servants were “dismissed for insubordination, or disobedience” and “could assert the defense of illegality: in other words, that the order they disobeyed was an illegal one and that their disobedience, accordingly, was justified” (Alex Hemmer, 2014), the Portuguese law creates a different legal regime between the example of article 177 no. 5  and the orders that involve acts that lead to the practice of illegalities. That being said, no. 1 and 2 of article 177 indicates that in the previous cases the subordinate will only be excluded from liability for the consequences of the execution of the order if, before execution, he/she has complained or has demanded their transmission or confirmation in writing. Nevertheless, it is worth noticing that in Parrish’s case, the social worker, before going to Court, submitted a written refusal to his division chief with the detailed motives that led him to reject his participation in the operation (which, consequently, led him to being discharged). In fact, Robert G. Vaughn mentions that this action was one of the factors that the Court used to determine the good faith of the plaintiff.

 The question then arises: doesn’t all the bureaucracy paralyze the Civil Service? In Roller v. Stoecklein, the question was answered in a way that leaves a lot to be desired, with the Court saying that “the refusal to obey a direct and reasonable order (…) could be detrimental to the public interest”, which doesn’t mean that in current times a civil servant has to obey orders no matter what, since Parrish’s case, ten years later, created a precedent. The Court also added that in an emergency, “unquestioning obedience may be necessary”. To this, the Portuguese LGTFP, in its article 177, no. 4 says that When the order or instruction is given with mention of immediate compliance and without prejudice to the provisions of no. 1 and 2, the communication referred to in the final part of the previous no. is made after the execution of the order or instruction, and regarding the detrimental consequence to the public interest no. 3 predicts that when the delay in the execution of the order can be detrimental to the public interest the civil servant communicates, also in the written form, to his immediate hierarchical superior, the exact terms of the order or instruction received and of the complaint or request made, as well as their non-fulfillment, subsequently executing the order or instruction, safeguarding the public interest and the rights of the civil servant.

Finally, A. Hemmer also mentions thar the addition made by Congress to 5 U.S.C. § 2302 (b) (9) (D), in 2012, protects «civil servants from being disciplined, demoted, or terminated “for refusing to obey an order that would require [them] to violate a law” ».

 

IV – Conclusion

            Despite the differences between the Romano-Germanic system and the Common Law system, both the Portuguese legislator and the North American judge seem to converge in the solutions presented for these specific cases, even though there is a continental geographic difference between them. In fact, making the Herculean effort to look at the history of law as mentioned by Dworkin, we realized that the formation of solutions by the two systems did not differ much. Although at the outset, the American path seems to be a little more troubled in the eyes of a European,  the Portuguese solution was also to seek some of its bases from the system of the authoritarian regime of the Estado Novo, although currently with strong divergences, as referred by Professor Freitas do Amaral, namely regarding the practice of an order that entails the commission of a crime and the more wider regime of the "right of representation" (direito de representação).

 

Bibliografia:

-        DIOGO FREITAS DO AMARAL, Curso de Direito Administrativo, vol. I, 4ª ed., Almedina, 2021

-        ROBERT G. VAUGHN, Public Employees and the Right to Disobey, The Hastings Law Journal, Volume 29, 1977

-        ALEX HEMMER, Civil Servant Suits, The Yale Law Journal, 2014

 

Sérgio Luz

Subturma 14, nº 64493