Verbal orders vs regulations

[RiverAux]

It has been asserted in another thread that the National Commander can issue a verbal order that directly contradicts CAP regulations.  Rather than clutter up the other thread, I thought this deserved one of its own.

I believe that this is totally bogus.  Unless a regulation specifically grants the use of discretion by someone in the CAP Chain of Command (for example, giving a squadron commander a choice as to uniform of the day for that squadron's meetings), no one in CAP has the authority to tell you to do it differently. 

So, someone please show me where anyone has the general authority to issue a verbal order to do something that violates CAP regulations? 

[lordmonar]

Well on further research...he does not actually have that authority except in emergency situations.

However.

In a military context...(which CAP is not but we like to think it is) the commander is not subject to his own orders and regulations. 

Now CAP is also a corporation and in such the Constitution and Bylaws say that the NB will ratify any regulations.  With that said...I would say that any order the National Commander issued would be with in his powers UNLESS it was countermanded by the NB.  Even if his order was contradicted a regulation.

If we did not operate on this level of thinking, then the National Commander would have no power at all.  He could not issue any order with out the NB's approval.

So...MG Pineda could say "wear those ribbons on your uniform"...and that would be a proper order until the next NB when they vote it down or approve it.

[DNall]

So...MG Pineda could say "wear those ribbons on your uniform"...and that would be a proper order until the next NB when they vote it down or approve it.

That's correct. A verbal order would have the same force of law as a written policy letter, meaning it would remain valid till the next NB meeting. It'd be nice to have such a thing in writing though given how fast we shed commanders these days.

In the military, a comapny commander cannot disregard regs to do things their way, a division commander can't even do that. CAP Wg CCs get a bit of latitude to write suplements, region & Nat CCs get progressively more latitude on that front. Ultimately though, all answer to the NB (it helps in seeing that structure to disregard the makeup of the NB). Then all of that CAP structure is governed by the BoG, who tends to do limited oversight only & leave the rest to the NB.

[RiverAux]

The National Commander can issue all sorts of orders that fall within the authority granted him by regulations.   There is more than enough room for him to run the organization without violating specific regulations of the NB.

Furthermore, I know that under no circumstances would I obey an order from anyone that clearly violated a CAP regulation since if something goes wrong, I'm not going to be covered by insurance.  

The only exceptions, from the CAP Constitution are:

3. The National Commander, upon declaration of a situation requiring immediate action due to a state of emergency or an unforeseen circumstance involving the preservation of life or property, may promulgate emergency regulations without the ratification of a majority vote of the National Board. Such emergency regulation shall remain in force unless revoked by a majority vote of the National Board.

What, you may ask, are the procedures for promulgating emergency regulations?  From CAPR 5-1:

4. Emergency Regulations.
a. General. Emergency regulations are regulations issued by the National Commander pursuant to Article XX paragraph 3 of the Constitution for which the National Commander declares the regulation to relate to a situation requiring immediate action due to a state of emergency or an unforeseen circumstance involving the preservation of life or property.
b. Procedures.
1) General. Emergency regulations are normally drafted by national staff to cover emergency situations not already covered by other regulations. Where there is a conflict between an emergency regulation and any other CAP
regulation, the provisions of the emergency regulation prevail. Unless the emergency regulation specifies an expiration date, an emergency regulation remains in existence until revoked by the Board of Governors or the National Board. If the National Board does not revoke an emergency regulation at its first meeting after the emergency regulation is effective, the emergency regulation shall be treated as a regular regulation.
2) Effective date. Emergency regulations become effective when issued by the National Commander. Normally, emergency regulations are sent to all members of the National Board by electronic mail and are posted on the NHQ web
site. No member will be penalized for failure to comply with an emergency regulation before it has been posted to the NHQ web site.
3) Emergency regulations that govern the conduct of the activities of CAP when it is performing its duties as a volunteer civilian auxiliary of the Air Force must be approved by CAP-USAF Commander prior to being issued by the
National Commander.
4) Publication. Emergency regulations shall be made available only in electronic form until after the first
National Board meeting following promulgation of the emergency regulation.

Nowhere in there do I see authority for the National Commander to issue a verbal order contradicting (in effect, changing) approved regulations.  It is somewhat vague as to what form  the change could take.  

Lets say there was an emergency situation requiring CAP aircraft to fly at 100' AGL, which is not allowed under current situations.  The National Commander would have to issue a writen emergency change to CAPR 60-1 and it very likely would have to be run by the AF first since this would probably be in relation to an AF mission (see para 3) above.  Since you can't be penalized for not following an emergency change until it is posted on the web, I don't see how a verbal order could count, since you couldn't be penalized for violating it but could still be penalized if you follow it (since there wasn't anything on the web).  

[lordmonar]

Of course in the military....a unit commander would have a lot of latitude as well.  A squadron commander could say "do such and such" even if it violated a regulation and it would be a legal order.  He would be answerable to his commander.  The order would stand until it was countermanded by higher authority.  

That is the catch 22 of the UCMJ.  All orders are considered lawful until proven otherwise...but we are responsible for our action even if we are ordered to do so.

Ergo....if a Platoon Commander told you to shoot up a school....and you refused...and he shot you......the platoon commander may be in trouble for ordering you to shoot up a school...not for shooting you....even if you were right to refuse the order.

Scary yes!?

So...let's talk CAP.  A squadron commander may see a need to do something and issue an order that is contrary to a regulation.  You know the regs 100% and refuse to do so.  The commander may 2b for failing to follow an order and he would be within his rights to do so.  The wing king could back up that 2b if he also backed up the order and it would then go to the NB for final resolution (if you pushed it).  Again that is why we have commanders.

We use their judgment to decide when and where we violate orders.  And they only have to justify their actions to the next level in the chain of command not to lower levels.

That is why it makes no sense for us to worry about what other units/wings/regions are doing with 39-1.  The CAWG wing king does not answer to us.  He answers to PCR and NHQ and no one else.  If you are in CAWG you have a right and responsibility to voice your concerns up your chain of command but you only have a limited response to what action you can take.

If the order is not clearly illegal (in the Federal, State, Local sense not CAP sense) then you should refuse to obey.  But if it is only against regulations you should voice your concerns, report the situation to the appropriate authorities and then follow the order.

[lordmonar]

Yes, by the bylaws all regulations have to approved by the NB.  Except in those cases where it is an emergency.

However.  If we do not respond to the National Commander's verbal orders as if they were ratified then the National Commander has not power at all.

As far as being covered by insurance.....I think that in this case/in any case where a member of the BOG gave an order then they would insure that you were covered by insurance...or they themselves would be liable to you suing them into next week.

Just as you are required to follow the regs you are required to follow orders.  And nationals insurance coverage understand that.  And it would be nothing to convince a jury that you were following orders.

This does not extend to clearly illegal orders.  The national command may say you can fly at 100' AGL but the FAA may have something to say about it.  But if you were to fly at 100' AGL because MG Pineda told you to and then clipped a power line.  It is MG Pineda who will be in trouble with the insurance company not you.

Also in you quotes for CAPR 5-1....there is no clear definition of what an "emergency" is.  The constitution kind of spells it out.  So he could not say "wear your medals" but he certainly could say fly at 100' AGL if he felt it was and 'emergency".

But either side of that.

If the general told me to do something....and it did not break a law.  I would do it.  Sorry....that is just the way I am.  It is the way I would want my troops to be.  Anything otherwise would mean the national commander was just a mouth piece for the NB.

[RiverAux]

If we do not respond to the National Commander's verbal orders as if they were ratified then the National Commander has not power at all.

You're confusing day-to-day operational orders (hey, CAP Pilot, move that airplane from x to y) with orders that contradict regulations (hey, non-CAP member, please fly this CAP aircraft from X to Y.  Don't worry about not being in CAP, its ok because I said so despite 60-1).  I've got no problem with verbal orders for regular stuff that fall within the scope of the authority of the person issuing the orders.  If the National Commander wants all CAP planes moved to FL, he can certainly do so on his verbal authority, for example.  Thats different from ordering a CAP member to not wear his seatbelt while riding in a CAP van. 

I'm not one of the pessimistic ones on this board who thinks the worst of our high leadership, but I'm not going to trust that the person who issues a verbal order contrary to regulations that results in something bad happening will admit to giving that order.  I'm more than willing to fight to the end if they wanted to 2b for not following an order that went against regulations. 

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

You all are getting your metaphors mixed up.  You keep thinking of the National Commander as if he were a military commander.  He is not.  He is basicaly the CEO of a corporation.  The board of directors has selected him to lead day to day operations and has given him great latitude in many matters but the "corporate policy manual" implies that he can only change corporate policies in writing since an "employee" cannot be punished for violating them unless they have been published to the company web site. 

[JohnKachenmeister]

In the RealMilitary, commanders are given SOME latitude with respect to regulations.  Army regulations clearly outlaw cash "Unit funds" or "Flower funds" but the regulations for actually using OFFICIAL funds is so complex and involved, and EVERYBODY does it.  That way the commander can send flowers to the funeral of a unit member or a family member, he can spring for pizza at the end of an exercise, stuff like that.  When an inspection happens, you move the cash from the safe to the bottom drawer of your desk.

The same with ammunition.  Regulations prohibit reserve units from storing ammunition more than 30 days in advance of use.  If you need ammunition to issue to weapons guards for a unit movement, you have to order it about 6 months out.  It is WAY easier to keep 100 rounds of .45 ball in the safe.  Everybody does it, just don't get caught.  IG's know it, and never ask about it.

I'm not EVEN going to address the horse-trading in supplies that happens at the NCO level.

As to orders, an order that violates a regulation MAY be within the authority of a commander to issue.  You only are correct in refusing to obey orders that are ON THEIR FACE clearly illegal.  If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

1.  "There are unarmed women and children in that building.  I want you to kill all of them."  Clearly illegal.

2.  "Once we clear the headquarters area, put your boonie caps on."  NOT clearly illegal.  If I got called on the carpet for that one, I'd point out that I gave the order to protect troops from the heat and sun exposure.

I'd apply the same rule to CAP.  If the order is clearly illegal, (and I'd add for CAP, obviously dangerous) I'd respectfully decline and take my chances on a 2B.  Otherwise, I'd carry out the order.

But... Lord M, I respectfully disagree with you on one point.  IF you face civilian criminal charges for an action, and you were ordered to do the criminal act by MG TP, YOU are still liable.  Obedience to orders of a superior is not a defense, in civilian OR in military courts.

[RiverAux]

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

[DNall]

That's a pretty good explination of the abstract theory we're talking here.

Here's the deal though. This was a verbal order involving wear of an amry civilian decoration on CAP uniform. The deal is that the decoration IS authorized for wear by military personnel if earned while in military service, but NOT if earned as a civilian prior to entering service. I guess that would apply to say someone in the AFRes whose fulltime job was aa an Army civilian employee or something like that. In this case, there is an instance under which the decoration may be worn on Af uniform, but that instance would clearly exclude these people if they enlisted today. Is the award then authorized for these people to wear on CAP uniform?

The Nat CC provided an INTERPRETATION of regs that it was authorized. I think that interpretation is wrong, but that doesn't make it illegal. NB should calrify & have that passed to AF for approval. It's not that anyone would be against it, it's just that no one ever anticipated CAP members earning military or civil service decorations for CAP service. That same discussion could involve creating the AFI we talked about around here somewhere, the one that points out to AF personnel which military decorations are awardable to CAP personnel on AFAMs, and spells out the proceedure for nominating them, hopefully streamlined w/ more reasonable approval authorities.

If you refuse to obey an order that violates a regulation, your commander will get a letter of reprimand for issuing it, you will get a court-martial for refusing to obey it.  (Something about the direction of flow of excrement on hillsides.)

Again, you're getting the military mixed up with CAP.  The obligation of military members to follow all orders given to them unless they are illegal is an entirely different situation. 

I'm not talking about verbal CAP orders that violate local, state, or federal laws.  No one in their right mind would follow them. 

But show me where CAP members are obligated to follow orders that contradict CAP regulations.  I've never seen anything in CAP regulations (which are all that matters to us) that says we must do so. 

He was talking about the military, but I'd sure like to discourage you from thinking that way about CAP. It's true that you are a civilian & free to quit anytime you please, but you've chosen to be in the position you are & have a moral obligation to follow all orders given to you even if you don't like them, and are civilly liable under most circumstances if you refuse a valid order or comply with an invalid order. You don't get off scott-free just cause you're a civilian volunteer. You're still legally expected to behave as professionally as the position of authority you assume, and if you fail in that, there are very serious consequences you shouldn't try to ignore just because you're not technically in the military or bound by the UCMJ. We have to make a concerted effort to remake ourselves as unpaid professionals.

[RiverAux]

I don't have a significant problem with a commander issuing an interpretation of a regulation, especially if it is unclear.  I deal with real-world regulations all the time and I fully understand that they often need interpretation.  However, if the regulation obviously, clearly, states to do one thing and you are instructed to do it differently, that is a different story in my book. 

I'm also not talking about orders I don't like.  I'm talking about an order that is in clear, direct contradiction of CAP regulations. 

And, lets broaden the discussion a bit.  For those who believe a verbal order can contradict regulations.....Just who has the authority to issue an order that violates a regulation?  Just the National Commander?  Any corporate officer (including Wing Commanders)?  What about a squadron commander?  Can a Lt. Col. Mission Pilot order a Major Mission Obsever to drop something out of a plane even though 60-1 says you can't? 

You see where I'm going here.  No where is anyone authorized (with the possible exception of the National Commander --I'll grant there may be some leeway there depending on how you "intrepret" his authority to issue emergency regulation changes) to do something that violates CAP regulations or order someone else to do so. 

[Major Carrales]

Hummm...interesting topic.

I some time go back to the US Constitution and US Government on issues like this.

We are not a nation of "men and women" but rather a nation of laws.  Thus, it is the Constitution which rules us.  That is why we can the President's "regime" (as a friend of mine like to say abliet in the pejoritive) an "administration."  The reason being that the President, as the Chief Executive, administers the Constitution and Statues of Congress to the people.

There are times when the Congress, the President and the Court go beyond for an interperation.  For example, the process of Judicial Review that allows the Supreme Court to declare a law UNCONSTITUTIONAL is not in the Constitution per se, rather it is the result of the Marshall Court's Marbury vs Madison.

Now...let us apply this to CAP...

The Regs are the "Supreme Law of CAP," the Executive is the National Commander, the Legislative is the various Boards and the Judicial must be the IG.  Thus, the ultimate word is the Regs.  That being said, the National Commander et al from time to time have to make judgement calls.

I would say that CAP-USAF and the USAF utlimately keep that power in check.

Comments?

[RiverAux]

At least in terms of regulations that affect CAP when it is serving as the AF Aux they could be a big check on things since emergency changes to regs in those areas have to be approved by them before they take effect. 

[Eclipse]

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

As this particular situation does NOT violate any CAP regs, it is a poor example.

[Eclipse]

So...let's talk CAP.  A squadron commander may see a need to do something and issue an order that is contrary to a regulation.  You know the regs 100% and refuse to do so.  The commander may 2b for failing to follow an order and he would be within his rights to do so.  The wing king could back up that 2b if he also backed up the order and it would then go to the NB for final resolution (if you pushed it).  Again that is why we have commanders.

It is also why we have IG's, and would likely never get farther than that. Any Squadron CC issuing "orders" contrary to regs, deserves everything he gets thrown at him, including a 2b his own way.

That is why it makes no sense for us to worry about what other units/wings/regions are doing with 39-1.  The CAWG wing king does not answer to us.  He answers to PCR and NHQ and no one else.  If you are in CAWG you have a right and responsibility to voice your concerns up your chain of command but you only have a limited response to what action you can take.

Except...that these Wing CC's believe their authority extends beyond their state - so what about situations where they are sending their members out of state, out of uniform?
(i.e. HMRS)  Or worse, as is more a problem, they expect members from other states to adhere to their nonsense when attending events inside their "jurisdiction" (i.e. certain CAWG encampment CC's).

This is an ongoing problem for those of us running events which attract national participation.

[ZigZag911]

Now...let us apply this to CAP...

The Regs are the "Supreme Law of CAP," the Executive is the National Commander, the Legislative is the various Boards and the Judicial must be the IG.  Thus, the ultimate word is the Regs.  That being said, the National Commander et al from time to time have to make judgment calls.


Comments?

You're right that the National CC (in fact, ALL commanders) have to use their judgment.

I don't think the IG is our "judicial branch"....IG function (regarding complaints, violation of regs, or other nefarious deeds) is limited to investigation and reporting....IG does not even get to make a recommendation anymore, if I read the most recent regs on the topic correctly.

We have no judiciary...and too little accountability, from wing CC on up.

[DNall]

I would say that CAP-USAF and the USAF utlimately keep that power in check.

Unlikely since they have no such authority & are legally restricted for even making suggestions in such areas. CAP-USAF only provides limited oversight of operational missions & use of appropriated funds. That's it. NHQ can & has many times flat out violated CAP regs to do anything they please & the AF can not ony do nothing about it, CAP-USAF literally cannot mention it. There have been AF IG investigations & all kinds of stuff spelling out the case law on all this. The AF has ZERO oversight authority over the administration of CAP. That's what teh BoG is for since 2000, and they've never done anything, despite being formed in the face of major problems.

I don't know what Wg CC anyone is concerned with. If you're talking about those dumb orange hats in Cali, encampment is a dif world, for that alone when going in their backyard I'd play by their rules. Otherwise, state in teh opplan that 39-1 will be enforced to  NATIONAL standards & people not in correct uniform will be asked to change or leave, as they will not be covered by insurance, & CAP will not take responsibility for stubborn morons.

Regs are not the ultimate law. The Law is the ultimate law. Title X, that kinda thing. AF regs come next on a range of issues & do not apply at all to other issues, all depending on varrious sections of the US Code. Then comes CAP regs. BoG has higest authority, followed by NB & NEC. The Nat CC has been delgated the power to enact temporary emergency measures (whcih should never include uniform items of any kind), that power could just as easily be delegated to NHQ staff & never involve the Nat CC, that might even be more appropriate actually. An interpretation on teh other hand is no big deal. NHQ staff already does that w/ no one double checking their work.

[Major Carrales]

Don't be incredulous...CAP regs are what govern CAP activities.

The regs say, and I will allow you the honor of looking it up, that CAP officers have no special dispensation before the law.  Thus, even according to CAP regs, one must follow the law.

We can safely assume that the Regs have been given a legal screening to insure they are in accordance with the LAW.

The AF REGS do not necessarily apply to CAP, neither does the UCMJ...thus, we should push for logical and clear regs.  They are what utlimately govern our actions in our CAP capacity.

Commanders have a certain latitude so long as that latitude is in the spirit of the reg...and not in that of the letter of it.  All other unethical use of a commander's authority is subject to the IG. 

[lordmonar]

Okay folks, lets say your squadron commander has issued you an order to drive a cadet of the opposite sex home at night with you as the only senior member in the vehicle.  Are you going to do it just because he said so?  It doesn't break any law, but certainly goes against CAP regulations.  Is this a verbal order you would follow?

As far as I know...there is no regulation forbidding me from driving any cadet home.  It may not be smart from a CYA point of view.  But there is no reg that says you can't do it.

You all are getting your metaphors mixed up.  You keep thinking of the National Commander as if he were a military commander.  He is not.  He is basically the CEO of a corporation.  The board of directors has selected him to lead day to day operations and has given him great latitude in many matters but the "corporate policy manual" implies that he can only change corporate policies in writing since an "employee" cannot be punished for violating them unless they have been published to the company web site.

Then why are you so wrapped up about following orders written or verbal?  If I fail to follow corporate policy I will be fired.  If I fail to do what my boss tells me to do I will get fired.  There is almost no difference.  The major difference is in the military I can get shot for not following orders and can spend some time in jail before I get fired.

I am not mixing my metaphores...I am treating CAP like a military organization.  Is that not what you want?  You keep saying the USAF thinks we are a joke.  Why do you think that?  Because CAP members keep swapping back and forth about how they think about CAP and its structure. 

[lordmonar]

But... Lord M, I respectfully disagree with you on one point.  IF you face civilian criminal charges for an action, and you were ordered to do the criminal act by MG TP, YOU are still liable.  Obedience to orders of a superior is not a defense, in civilian OR in military courts.

No, of course...I am sorry if gave you that idea....as you say...if the order is clearly illegal you must do all you can to refuse that order.  In the military you always have the out that they will shoot you if you don't do it.  That IS an acceptable defense in military and international courts.