Acquisition Cards and Lawful Orders

[Lumber]

If Cpl A puts his foot down for something that is not a law (does it say in the Act you can't buy X?), I think that person could be charged.

I personally have a 1 pushback rule to my superiors (up to 2 above in the position I am employed): if asked to do something and I don't think it's right, I'll chalenge the individual once with an explaination,  if the individual then comes back with "thanks but no thanks", I put my feet together and execute the order.  If a Cpl or any non-immediate subordinate pressed me more than once on the same issue, I'd lose my patience fairly quickly. But, unless I am well versed on the issue, I normally dig a little deeper on the issue before I reply to the challenge...

Speaking of push back. I have one that is air force related that you might enjoy. It's second hand, but based on my experience with these exact matters, I can see this happening exactly as my friend described it:

/Sit down for Story Time

One of our ship's on the east coast was in the middle of a long trial program. One week, she had a mechanical failure, and had to cancel going to sea for a couple of days. As a result, they had to cancel the that week's trials, which included trials involving low flying aircraft. Come the end of the week, the ship was good to go, and the navy wanted to send her back to sea and get some trials done. They looked at their trials schedule, and realized that with air craft support, they had a couple trials they could knock-off in the short time they had left that week.

However, on such short notice, the MAFF refused to forward the ship's request to have air support for the trials. The MAFF (a Sgt) was steadfastly refusing to forward the request to the civilian company who provides these aircraft, because the policy is that all requests need to be handed in 2 weeks prior to trials.(yes, that is the written policy, but having actually done the job of the person on ship who makes such requests, I know from experience that the civilian company is perfectly capable of providing support on such short notice. Not always, but if they aren't busy elsewhere, they are more than happy to come out).

Now, trials aren't just something that the ship itself cocks up all on their own. Fleet and formation staff are heavily involved and have a vested interest in ensuring ship's programs remain on schedule, so they (read: the Admiral) want these trials done just as much as the ship does.

I don't know how far it went, but at some point a senior officer had to come down and yell at the Sgt and say something along the lines of "Are you going to be the one to tell the Admiral that his ships can't get their trials done because you wouldn't forward the RSS?!"

/End Story Time

 

[Pusser]

An acquisition card is a tool and LPO is a process, neither of which convey authority to spend.  Both of these things are used to facilitate the provision of material support to a unit, but the bottom line is that any purchasing that goes on must still follow the rules of purchasing (i.e. standing offers, quotes, etc) AND the unit doing the purchasing MUST have authority to make that purchase.  Just because a unit has the ABILITY (i.e. acquisition card(s) and an LPO system) to purchase virtually anything does not give them the AUTHORITY to purchase virtually anything.

True life example:  a ship wanted to purchase a custom-made "battle ensign" (not the correct term, but that's what they called a flag in ship's colours with a variation of the ship's badge on it for use in "showing off").  As there supporting supply officer, I certainly had the ability to purchase this for them (LPO + acquisition card), but not the authority (despite what their XO was telling me about "his" budget) as there is no entitlement for custom-made flags "look-at-me" flags.

As a general rule, units are never authorized to purchase clothing (civilian or otherwise), particularly operational clothing, unless specifically authorized.  Note that ship's ball caps (which are all acquired through LPO) are not really considered clothing. If a unit really feels the need to purchase clothing, they should consult with the appropriate LCMM to get authority.

One of the great things about our supply system is that there are actually means to get just about anything you could ever need, but you do need to go through the correct process in order to get some of the more "interesting" things that no one ever thought of before.  The challenge is finding the right person to talk to in order to get the ball rolling.

 

[Lumber]

True life example:  a ship wanted to purchase a custom-made "battle ensign" (not the correct term, but that's what they called a flag in ship's colours with a variation of the ship's badge on it for use in "showing off").  As there supporting supply officer, I certainly had the ability to purchase this for them (LPO + acquisition card), but not the authority (despite what their XO was telling me about "his" budget) as there is no entitlement for custom-made flags "look-at-me" flags.

If the XO had handed you a piece of paper that said something like "I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would you carry out the purchase?

If you did, do you think YOU would get in trouble for it, or solely the XO?

If after receiving such a written order, would you get charged if you didn't follow through?

 

[Good2Golf]

If the XO is an authorized Section 32 delegate of the CO's, appropriately certified and with such delegation so published per the CO's approved DOA, then the 'allocation of sufficient funds' issue is at least addressed.  In the specific example cited, such material is NPP (I know this for certain as I had exactly the same issue, albeit with a Squadron 'camp flag', and I, my Chief, my QM and my RQ were all in line with the policies) and Crown funds are not authorized, so "enough $" does not always equal 'legal acquisition,' so if I were the QM, I would advise the XO that purchasing NPP with public funds is not legal and I would maintain my position that I would not go forward with such a purchase. 

This is but one example, but it reinforces the point that there are a number of factors to consider (sufficient & appropriate funds, compliance with all applicable laws, regulations, policies and directives, and the proper use of suitable procurement tools).  Have there been acquisitions that didn't have everything line up?  You bet.  Does that mean that it was right?  No.  It is the responsibility of those responsible and accountable, to ensure that all within the chain are supporting compliance with the approved process, which itself does have allowances for exceptions, but specific procedures as well to make us of such allowances.

:2c:

Regards
G2G

 

[Lumber]

....so if I were the QM, I would advise the XO that purchasing NPP with public funds is not legal and I would maintain my position that I would not go forward with such a purchase. 

So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?

 

[Halifax Tar]

So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?

TB, FAM and PAM regulations out weigh an order from the XO of a ship no ?  intended as a question not flame.

 

[Good2Golf]

So, if the XO gave you the written order as I described above, you would tell the XO that you refuse to carry out his written order?

Yes!

I can also tell you as a past CO, that if, hypothetically, my DCO tried this with my QM or my RQ, I would be having a one-way conversation with my DCO, and it would not be him to me.

Regards
G2G

 

[Pusser]

If the XO had handed you a piece of paper that said something like "I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would you carry out the purchase?

If you did, do you think YOU would get in trouble for it, or solely the XO?

If after receiving such a written order, would you get charged if you didn't follow through?

You cannot be ordered to break the law.  Such an order would be "manifestly unlawful" and, therefore, you would not be obligated to follow it. In fact, you would actually be obligated to not follow it and even report it in some cases.  The trouble is that you have to be pretty sure that you're right on whatever issue is in dispute.  Unfortunately, being unsure whether a law is "manifestly unlawful" will not protect you at a court martial if you carry it out.  Merely following orders has failed as a defence on more than one occasion, so yes, the burden lies on the receiver of the order to determine its lawfulness.  However, the onus is also on leaders to ensure that they are giving lawful orders in the first place.  Any superior who continues to press a subordinate (who is a subject matter expert when the superior is not) to carry out an order that the subordinate has respectfully advised is contrary to law/direction/policy/regulation/ etc. is an idiot.

In reference to my specific example, however, I was not in a subordinate/superior situation as he was not my superior.  He was the XO of a minor war vessel I supported.  I was not a member of his ship's company and we were the same rank.  However, my boss was also his boss's boss and my boss had my back.

 

[Lumber]

You cannot be ordered to break the law.  Such an order would be "manifestly unlawful" and, therefore, you would not be obligated to follow it. In fact, you would actually be obligated to not follow it and even report it in some cases.  The trouble is that you have to be pretty sure that you're right on whatever issue is in dispute.  Unfortunately, being unsure whether a law is "manifestly unlawful" will not protect you at a court martial if you carry it out.  Merely following orders has failed as a defence on more than one occasion, so yes, the burden lies on the receiver of the order to determine its lawfulness.  However, the onus is also on leaders to ensure that they are giving lawful orders in the first place.  Any superior who continues to press a subordinate (who is a subject matter expert when the superior is not) to carry out an order that the subordinate has respectfully advised is contrary to law/direction/policy/regulation/ etc. is an idiot.

In reference to my specific example, however, I was not in a subordinate/superior situation as he was not my superior.  He was the XO of a minor war vessel I supported.  I was not a member of his ship's company and we were the same rank.  However, my boss was also his boss's boss and my boss had my back.

I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!

 

[Good2Golf]

TB, FAM and PAM regulations out weigh an order from the XO of a ship no ?  intended as a question not flame.

XO should not be knowingly giving an order that contravenes such regulations.  If the LogO is respectful (or not even) in how he or she states their objections to the XO, then the XO shouldn't be a unprofessional ass and continue pressing his unlawful order.  To be clear, the Federal Administration Act, R.S.C., 1985, c. F-11, is Federal Legislation, a law to be precise, to contravene the act is to break a Canadian Federal law. That sounds like "unlawful" if there was ever any doubt.

Regards
G2G

 

[childs56]

I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!

That would be interesting if in fact it was true.
The assumption that a order to shoot "civilians" assumes that they are civilians and not combatants to which the person giving the order may be privy to and not in a position or time to relay all the info.

As for breaking the law in terms of" financial" reasons those follow federal laws on appropriate spending of public funds. So a order which contravenes  any QR&O or federal financial laws would be chargable not under the CSD but also Civilian. When a person signs for that LPO Card etc they must fully understand their legal responsibilities with that card. Just because people get away with spending outside of the rules does not make it legal.
A case could be made in the case of an emergency to use the card outside of its intended use. But you would have to ensure the justification of its use did constitute an actual emergency with no other means to aquire the assets.

Take a room of 10 JAG Officers and ask the question and you will get 10 different spin offs of the answer.

 

[Good2Golf]

Furthermore, and I'm sure (or hope) that JAG types will back me up (I think I was paying attention during the multiple POCs I took over the course of my career), but my understanding was the "manifestly unlawful" pertains more to 'Rule of Law' situations, which in many cases are not based on law, per se, but compliance with conventions, precedent from previously accepted conduct, and in some cases the application of individual Nation's criminal codes, etc.  F.A.A. contravention is not "manifestly illegal", it's just illegal...full stop.

Regards

G2G 

 

[Blackadder1916]

I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!

In the absence of a learned ambulance chaser, I'll (comfortably ensconced in the memory of a barracks room) post this link in which a military judge weighed in on the question and quoted a precedent.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB

[35]          The Court Martial Appeal Court stated at paragraph 12 of the R v Matusheskie 2009 CMAC 9 decision that:

... Notes B and C of Article 19.015 of the QR&Os... reflects the fact that obedience to orders is the fundamental rule of military life.  [And] there must be prompt obedience to all lawful orders [unless the command is manifestly unlawful.]

The court then states at paragraph 13:

The threshold for finding an order to be manifestly unlawful is, properly, very high...  [A manifestly unlawful order] must be one that offends the conscience of every reasonable, right-thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.

[36]          Defence counsel referred the court to the first sentence of Note (F) to article 103.16 of the Queen's Regulations and Orders when she argued the orders by Petty Officer 2nd Class Larouche were not lawful commands.  Notes are not to be construed as if they had the force and effect of law but should not be deviated from without good reason.  (see article 1.095 of Queen's Regulations and Orders)  The court must also pay attention to the second sentence of that note.  The sentences reads as follows:

A command, in order to be lawful must be one relating to military duty, i.e., the disobedience of which must tend to impede, delay or prevent a military proceeding.  A superior officer has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of a military duty or regulation or for a purpose connected with the welfare of troops or for any generally accepted details of military life....

I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.

 

[Lumber]

In the absence of a learned ambulance chaser, I'll (comfortably ensconced in the memory of a barracks room) post this link in which a military judge weighed in on the question and quoted a precedent.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB
I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.

So, if I adjust my scenario slightly, and add to the XO's "written order":

"I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I have reasons for carrying out with this acquisition; reasons which I am not at liberty to discuss with you. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would this change anyone's mind in following the order?

 

[Good2Golf]

Nope.

If it's that important, then the XO could put his signature on the Requisition. :nod:


Regards
G2G

 

[ModlrMike]

I get where you're going, but I don't think we have the ability to absolve others of wrong doing. We're all responsible for our actions, and if the purchaser knew that the direction from the XO contravened orders etc, then they would still likely be on the hook for following through. Again, the just following orders defence.

I think that if you ask someone to do something, and they respond that they're prevented from carrying out your order due to XYZ direction, regulation etc, that should ring alarm bells for you.

 

[Navy_Pete]

Good LogOs play in the grey, but also need to have the intestinal fortitude to stop their superiors from being ass hats and doing something illegal or in contravention of regulations, which are generally all backed up by high level standing orders somewhere.  (ie there is a standing order for all RCN ships to meet or exceed Canadian environmental and other regulations (barring real operational necessities), even though most of it specifically excludes the military in it's preamble for application).

Similarily good operational commanders, 2 I/Cs etc should know better than to abuse whatever authority they may or may not have by virtue of a posting message.

Sometimes you need to tell the CO to get out of the engine room and let you work, and you need your LogOs to be able to bend the rules as req to make operations happen but trust them to keep you out of trouble.

Buying stuff you shouldn't now can cause major issues later if you start getting DOAs revoked/limited, so it's a huge pain, and anyone who is an XO should know better anyway.

 

[donaldk]

Nice discussion... unless this is something that has to happen within the hour - give your RDAO a call (if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial).  If you have done the homework/research and can explain it in 30s or less (also mention urgent operational requirement if indeed such is the case), the RDAO will let you know whether to go ahead and advise how to note your records accordingly.  They prefer this instead of repeatedshenanigans getting caught on the PPV. Also, not all card holders have a DoA with section 32 or 34 authority (my unit card holder person doesn't but I and the LCdr do...).

P.S. If you are deploying (or a ship departing from home port) the rules change as your CO gains certain standing authorities (this is why they harp that financial authority matrix on the CDWT course).

 

[Good2Golf]

...(if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial)...

^ this. Speed dial isn't just for your DJA.  :nod:

 

[Gunner98]

Barrack room lawyer with access to QR&Os replies with:

QR&O 19.015 - LAWFUL COMMANDS AND ORDERS

Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer.

(M)

NOTES

(A) The expression "superior officer" includes a non-commissioned member. (See article 1.02 - Definitions.)

(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

(C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child.

19.02 - CONFLICTING LAWFUL COMMANDS AND ORDERS

(1) If an officer or non-commissioned member receives a lawful command or order that he considers to be in conflict with a previous lawful command or order received by him, he shall orally point out the conflict to the superior officer who gave the later command or order.

(2) If the superior officer still directs the officer or non-commissioned member to obey the later command or order, he shall do so.