Davis v. District of Columbia ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-285
ESTELLE DAVIS, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB 2880-16)
(Hon. John M. Campbell, Trial Judge)
(Argued October 8, 2020 Decided September 16, 2021)
Susan L. Kruger, with whom Sara Safriet was on the brief, for appellant.
Graham E. Phillips, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
and Carl J. Schifferle, Acting Deputy Solicitor General, were on the brief, for
appellee.
Before GLICKMAN and THOMPSON *, Associate Judges, and WASHINGTON,
Senior Judge.
*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although Judge Thompson’s term ended on September 4, 2021, she
continues to serve as an Associate Judge until her successor is confirmed. See D.C.
Code § 11-1502 (2012 Repl.) (“Subject to mandatory retirement at age 74 and to the
provisions of subchapters II and III of this chapter, a judge of a District of Columbia
court appointed on or after the date of enactment of the District of Columbia Court
2
GLICKMAN, Associate Judge: Estelle Davis claims that the District of
Columbia Office of Tax and Revenue (“OTR”) fired her for disclosing that its
method for appraising certain properties in Georgetown was “wrong” and
perpetuating “an unlawful tax scam.” She claims OTR was grossly undervaluing
those properties and, as a result, costing the District “millions in lost tax revenue.”
After Ms. Davis was fired, she sued to hold the District liable for her termination
under the D.C. Whistleblower Protection Act (“DCWPA”), D.C. Code §§ 1-615.51et seq. (2016 Repl.). The Superior Court granted summary judgment to the District,
on the ground that Ms. Davis did not make a “protected disclosure” as defined by
D.C. Code § 1-615.52(a)(6) (2016 Repl.). The court also denied her leave to amend
her complaint to add a claim for wrongful discharge in violation of public policy,
primarily on the ground that the claim was futile. Ms. Davis challenges both of those
decisions on appeal. For the following reasons, we affirm.
Reorganization Act of 1970 shall serve for a term of fifteen years, and upon
completion of such term, such judge shall continue to serve until the judge’s
successor is appointed and qualifies.”).
3
I.
A.
Each year by March 1, OTR must notify real property owners of their tax
assessments for the upcoming tax year (“TY”).1 The assessments are based on the
property’s “estimated market value,” 2 which is the price it would “most probabl[y]”
sell for in an arm’s length transaction conducted “under prevailing market
conditions.”3 Determining that price “is by no means an exact science.”4 “There is
no definite formula” or method. 5 Accordingly, OTR has “very broad discretion” to
determine which method to use. 6 It “may apply, when appropriate, one or more of
the [three] generally recognized approaches to valuation” — the comparable sales
1
D.C. Code § 47-824(a) (2015 Repl.); 9 D.C.M.R. § 311.1.
2
D.C. Code § 47-820(a)(3) (2015 Repl.)
3
D.C. Code § 47-802(4) (2015 Repl.).
4
Zirkle v. District of Columbia, 830 A.2d 1250, 1259 (D.C. 2003).
5
CHH Cap. Hotel Partners, LP v. District of Columbia, 152 A.3d 591, 598
(D.C. 2017) (quoting Crawford v. Helvering, 70 F.2d 744, 745 (D.C. Cir. 1934)).
6
Zirkle, 830 A.2d at 1259.
4
approach, the replacement cost (“cost”) approach, and the “income” approach.7
OTR assessors “must consider all three of these approaches,” but they can
“ultimately rely on one method in determining a property’s market value,” 8 so long
as they have a reason for doing so. 9 OTR may also apply “any other method” it
“deems necessary.” 10
This case concerns two methodologies: the cost and income approaches. The
cost approach “bases assessed value on the cost of replacing property with new
property of similar utility at present price levels . . . reduced by the amount of
depreciation or estimated loss of value because of age, condition, or other factors.”11
It is “applicable to virtually all improved parcels” but is “more reliable for newer
structures.”12 It is less reliable for older structures, given that older structures have
7
9 D.C.M.R. 307.2–307.5 (2021).
8
Wolf v. District of Columbia, 611 A.2d 44, 47 (D.C. 1992) (“Wolf II”).
9
CHH Cap. Hotel Partners, LP, 152 A.3d at 599.
10
9 D.C.M.R. 307.2.
11
9 D.C.M.R. 307.4.
12
International Association of Assessing Officers (“IAAO”), Standard on
Mass Appraisal of Real Property 9 (2013),
https://www.iaao.org/media/standards/MARP 2013.pdf; https://perma.cc/8LUK-
YLZC.
5
depreciated, and estimating accrued depreciation “can involve considerable
subjectivity.” 13 The income approach “bases assessed value on the amount that
investors would be willing to pay to receive the income that the property could be
expected to yield.”14 It is considered the “preferred valuation approach” “for
income-producing properties.” 15 However, its “successful application . . . requires
the collection, maintenance, and careful analysis of income and expense data.”16
B.
As this appeal comes to us from the award of summary judgment to the
District, we summarize the material facts before the trial court in the light most
favorable to Ms. Davis, accepting her view of disputed facts (except where otherwise
indicated).
Ms. Davis started working at OTR in 1998 assessing residential properties. In
2010, she transferred to the unit responsible for assessing “small commercial
13
See id.
14
9 D.C.M.R. 307.5.
15
IAAO, supra note 12, at 10.
16
Id.
6
properties” — properties worth $10 million or less — and became a supervisor. To
assess those properties, the chief appraiser “told” Ms. Davis “to use the cost
approach.” She “didn’t question” the cost method’s applicability at that time.
In 2014, OTR reorganized Ms. Davis’s unit. She began overseeing a portfolio
of commercial retail and mixed-use properties, both small and large. In this new
position, she was responsible for supervising an appraiser named Thomas Frye, and
she, in turn, was supervised by the deputy chief appraiser of OTR, Olufemi
Omotoso. Her portfolio included properties in Georgetown.
Ms. Davis and her reorganized unit were “swimming in new waters,” as she
put it in her deposition, because they were not told which appraisal method to use
for the commercial and mixed-use properties assigned to them. The cost method
had been used in the past, but issues with previous appraisals started to come to light.
In August 2014, Ms. Davis testified, Mr. Omotoso and Robert Farr, the Director of
Real Property Tax Administration in OTR, told her and Mr. Frye that they were
“concerned” previous assessments had undervalued property in Georgetown.
7
Notably, a property called Georgetown Park had just that month sold for $220
million, but OTR earlier had assessed its value at only $24 million.17
In January 2015, Mr. Frye informed Ms. Davis that he thought using the cost
approach to estimate the market value of Georgetown commercial retail and mixed-
use properties was not just sub-optimal, but flat-out “wrong.” Mr. Frye explained
this was because many of those properties were too old, and their value too
dependent on their income-producing ability, for the cost approach to accurately
capture their market value. As a result, Mr. Frye opined, OTR had been “extremely
undervalu[ing]” them. Mr. Frye thought the income approach was “the correct
approach.” Ms. Davis agreed with him. Both of them thought use of the cost
approach contradicted industry standards.18
In late January or early February 2015, Ms. Davis and Mr. Frye told Mr.
Omotoso that the way OTR had been valuing Georgetown properties was “an
17
The $24 million figure may not capture the whole picture. The District
contends Georgetown Park comprised two pieces of property: a main lot with a
shopping complex and an abutting lot with no improvements. It also contends that
the $24 million valuation was only for the unimproved abutting lot. As discussed
below, the main lot was significantly more valuable.
18
The standards Ms. Davis identified were the Uniform Standards of
Professional Appraisal Practice (“USPAP”) and the IAAO Standard on Mass
Appraisal of Real Property, supra note 12.
8
unlawful tax scam” that was “wrong and costing the District millions in lost tax
revenue.” As she summarized in her interrogatory answers, Ms. Davis
explained to management that using the cost approach was
enriching already rich Georgetown property owners and
depriving the District of substantial tax revenue and that
the District had to stop and use the correct approach to
value, the income approach. By using the incorrect cost
approach, the District had for years been subsidizing
Georgetown property owners, saving them millions in
taxes, to the detriment of the District and other District
residents who paid their fair share. . . . [U]tilizing the
correct income approach resulted in large increases in
proposed values and therefore a much larger and correct
tax revenue . . . . 19
Ms. Davis told Mr. Omotoso that Mr. Frye’s proposed TY2016 assessments “for
Georgetown commercial retail and mixed-use properties” used the income approach,
not the cost approach. According to Ms. Davis, Mr. Omotoso agreed that the income
approach should be used and that “we had been losing a lot of money.”
Mr. Frye finalized his proposed assessments for TY2016 soon thereafter. He
used the income approach to calculate property values for Georgetown commercial
19
On appeal, Ms. Davis says she “was not recommending that the income
approach be used on all properties or even all Georgetown properties. Rather, for
properties that are not that old and not producing much income, the cost approach
could be used supported by sales.” However, Ms. Davis expressed that nuanced
view only after the fact, when she was deposed in this case.
9
retail and mixed-use properties instead of the cost approach. His calculations
increased assessed values by twenty-one percent overall, relative to assessed values
in TY2015. A few of the increases were quite dramatic; the assessed value of one
property went up by 545%. Mr. Frye catalogued the percent by which each property
assessment changed from TY2015 in a “percent change report.” Ms. Davis reviewed
the report and “signed off” on it on February 11, 2015. According to Mr. Frye, Mr.
Omotoso also reviewed the report and “did not express any disagreement.” (Mr.
Omotoso could not recall doing that.)20 By the end of February 2015, OTR mailed
out its proposed assessments to taxpayers.
The new assessments troubled and aroused many affected Georgetown
property owners. Joseph Sternlieb, President and CEO of the Georgetown Business
Improvement District (“BID”), emailed Mr. Farr at OTR to say that his “phone ha[d]
been ringing for . . . two weeks with complaints about the size of increases on some
[TY2016] commercial tax assessments in the Georgetown BID area.” He thought
something had to be wrong. Mr. Sternlieb contacted not just Mr. Farr, but also Jack
Evans, a D.C. Councilmember, and Jeffrey DeWitt, the District’s Chief Financial
Officer. He said in a contemporaneous email that his “strategy” was to have the
20
Ms. Davis claims that any increase in assessed values of over ten percent
had to be approved by Mr. Omotoso or Mr. Farr.
10
assessments “amend[ed] . . . without forcing everything through the appeals process”
that individual taxpayers must typically go through to contest an assessment of their
property. 21
In response to the complaints from Georgetown, Mr. Farr reviewed Mr. Frye’s
proposed assessments. He did not dispute the desirability, in principle, of using the
income method. Nor did Mr. Omotoso. Mr. Farr also asked Mr. Omotoso for
explanations. Mr. Omotoso told him that “[f]or a long time Georgetown has been
assessed on Cost Approach [sic],” but that “[t]his approach over time . . . will clearly
not reflect market values of properties driven largely by income generating
potentials,” like some of the Georgetown properties. “While increase in value may
indeed be warranted generally in Georgetown,” Mr. Omotoso continued, “phased
increase is (in my opinion) the right approach.” Mr. Frye had not phased in the
increased values. According to Ms. Davis, neither he nor she had the authority to
do so.
Nonetheless, Mr. Farr ultimately concluded the proposed income-method
assessments were seriously flawed because Mr. Frye “substantially overstat[ed]
21
See D.C. Code § 47-825.01a(d), (e), (g).
11
square footage and market rents.” As a result, according to Mr. Farr, Mr. Frye had
“consistently and significantly over assessed property values by more than $143
[m]illion” in total. Ms. Davis and Mr. Frye contest this. Ms. Davis testified that, at
most, only twenty percent of the square footages were overestimated, and it was a
common mistake that could be corrected easily. Nonetheless, by April 20, OTR sent
eighty-one “corrected” assessments to the Georgetown property owners. The
“corrected” assessments were calculated using the income method (not the cost
method), yet were, in total, $143 million less than Mr. Frye’s valuations. Neither
Ms. Davis nor Mr. Frye participated in creating these reassessments, and they
dispute their accuracy. 22 Still, the reassessments spared many of the affected
Georgetown taxpayers from going through the appeals process.
The next day, April 21, both Mr. Frye and Ms. Davis were fired. Mr. Farr had
requested their terminations — Mr. Frye for “over assessing” the Georgetown
properties by $143 million, and Ms. Davis for failing to appropriately supervise Mr.
Frye and review his work. Unlike Mr. Frye, Ms. Davis was an at-will employee.
22
Another assessor, Rafael Menkes, testified in deposition that (in his
opinion) at least one of Mr. Farr’s “corrected” assessments was “done completely
incorrectly.”
12
Later that year, Mr. Farr told the appraiser who took over Mr. Frye’s
Georgetown properties, Mr. Menkes, to start “trend[ing] them up” over the course
of a few years, “because they were so grossly undervalued.”
C.
In April 2016, Ms. Davis filed suit in the Superior Court. She claimed that
OTR violated the DCWPA by firing her for making a “protected disclosure” —
namely, her report to her superiors that OTR’s use of the cost method to value
commercial retail and mixed-use properties in Georgetown “was wrong and costing
the District millions in lost tax revenue.” 23 After discovery closed, she moved for
leave to amend her complaint to add a claim that she was fired in contravention of
public policy for her refusal to violate the law.
Both claims were unsuccessful. The trial court granted summary judgment to
the District on Ms. Davis’s whistleblower claim, holding it failed as a matter of law
23
See D.C. Code § 1-615.53(a) (“A supervisor shall not take, or threaten to
take, a prohibited personnel action or otherwise retaliate against an employee
because of the employee’s protected disclosure . . . .”); § 1-615.52(a)(5)(A) (defining
a “prohibited personnel action” to include termination of employment); § 1-
615.54(a) (provided that “[a]n employee aggrieved by a violation of § 1-615.53 may
bring a civil action against the District . . . .”).
13
because her criticism of the cost method did not amount to a “protected disclosure”
within the meaning of the DCWPA. The court also denied Ms. Davis’s motion for
leave to amend her complaint, primarily on the ground that her wrongful discharge
claim was futile, and secondarily because her assertion of that claim was untimely.
Ms. Davis appeals both the court’s rulings.
II.
We review the grant of summary judgment de novo, applying the same
standard used by the trial court. 24 To prevail under that standard, the District, as
movant, “must demonstrate that there is no genuine issue of material fact and that it
is entitled to judgment as a matter of law.” 25 Although that burden rests on the
District, it nonetheless was entitled to summary judgment if it demonstrated that Ms.
Davis “fail[ed] to make a sufficient showing on an essential element of her claim
with respect to which she has the burden of proof.”26 The District argues that Ms.
24
Kolowski v. District of Columbia, 244 A.3d 1008, 1012 (D.C. 2020)
(quoting Johnson v. Washington Gas Light Co., 109 A.3d 1118, 1120 (D.C. 2015)).
25
Id. at 1012–13 (quoting Grant v. May Dep’t Stores Co., 786 A.2d 580, 583
(D.C. 2001)).
26
Washington Gas Light Co., 109 A.3d at 1120.
14
Davis could not show that she made a protected disclosure — an essential element
of her DCWPA claim, and one which she bore the burden of proving. 27 In evaluating
this contention, we view the record in the light most favorable to Ms. Davis.28
In pertinent part, the DCWPA defines a “protected disclosure” as “any
disclosure of information . . . made to any person by an employee . . . that the
employee reasonably believes evidences” one or more of five enumerated
circumstances — the ones claimed here being “[g]ross mismanagement” or “[g]ross
misuse or waste of public resources or funds.”29 No reasonable jury, the District
contends, could find that Ms. Davis’s “recommendations to her supervisors about
how OTR should approach assessments of commercial retail properties” indicated
either gross mismanagement or a gross waste of public funds.
27
Ukwuani v. District of Columbia, 241 A.3d 529, 551 (D.C. 2020) (stating
the elements of a DCWPA claim).
28
Id.29
D.C. Code § 1-615.52(a)(6), (a)(6)(A)–(B). Although not claimed here,
the other enumerated circumstances are “[a]buse of authority in connection with the
administration of a public program or the execution of a public contract”; “[a]
violation of a federal, state, or local law, rule, or regulation, or of a term of a contract
between the District government and a District government contractor which is not
of a merely technical or minimal nature”; and “[a] substantial and specific danger to
the public health and safety.” D.C. Code § 1-615.52(a)(6)(C)–(E).
15
Whether the information Ms. Davis conveyed to her superiors was “protected”
turns not on whether it actually evidenced “gross mismanagement” or “gross misuse
or waste of public resources or funds,” but on whether Ms. Davis reasonably
believed that it did. 30 “This requirement is both subjective and objective.” 31 It is not
enough for Ms. Davis to have subjectively thought that using the cost method to
assess commercial properties in Georgetown was gross mismanagement or gross
misuse. No one doubts that she did think so. But she must also show that “a
disinterested observer” with her “knowledge of the essential facts” could
“reasonably conclude” that as well. 32 For the following reasons, we hold she has not
made that showing.
A.
We first consider whether a disinterested observer could reasonably believe
Ms. Davis’s disclosure evidenced “gross mismanagement.” The term is not defined
in the DCWPA. Our cases have emphasized that it refers only to maladministration
30
Zirkle, 830 A.2d at 1260.
31
Johnson v. District of Columbia, 225 A.3d 1269, 1276 (D.C. 2020).
32
Id. (quoting Zirkle, 830 A.2d at 1259–60).
16
that is truly egregious and indisputable. Thus, we have said that “gross
mismanagement” is “a management action or inaction that creates a substantial risk
of significant adverse impact on the agency’s ability to accomplish its mission.”33
Mere negligence is insufficient.34 To be “gross,” the mismanagement must be so
“serious . . . that a conclusion the agency erred is not debatable among reasonable
people.”35 Consequently, “[d]ebatable differences of opinion concerning policy
matters are not protected disclosures.”36
Ms. Davis claims that OTR’s use of the cost method to value certain properties
in Georgetown was “incorrect.” She does not claim that OTR applied the cost
methodology in an incorrect manner or with erroneous data. 37 Rather, the claim is
that the cost approach cannot appropriately be applied to certain properties. The
properties? A subset of the commercial retail and mixed-use properties in
33
Id. at 1275–76 (quoting District of Columbia v. Poindexter, 104 A.3d 848,
855 (D.C. 2014)).
34
Poindexter, 104 A.3d at 855.
35
Id.36
Id.37
Young Woman’s Christian Ass’n of Nat’l Cap. Area, Inc. v. District of
Columbia, 731 A.2d 849, 851 (D.C. 1999).
17
Georgetown: those commercial retail and mixed-use properties in Georgetown that
are fully depreciated but still are producing significant income.38 Ms. Davis claims
that using the cost approach to assess these properties caused OTR to significantly
undervalue them. This, she contends, indisputably undermined OTR’s “ability to
accomplish its mission,” as that mission includes assessing properties at their
estimated market value and collecting, in her words, the “correct” amount of real
property tax.39
A fundamental problem with Ms. Davis’s claim is that she has not identified
any authority saying the cost approach cannot appropriately be applied to properties
that are fully depreciated but still producing significant income. Neither of the
authorities she cites, the USPAP and IAAO’s Standard on Mass Appraisal of Real
Property, support that. The USPAP says nothing about when the cost approach is or
38
It is unclear, however, whether Ms. Davis used this level of specificity in
her disclosures. See supra note 19; Johnson, 225 A.3d at 1276 (“To determine if the
employee subjectively held such a belief, we look to ‘the statements in her complaint
to a supervisor or to a public body, not her subsequent characterization of those
statements in litigation.’” (quoting Wilburn v. District of Columbia, 957 A.2d 921,
925 (D.C. 2008))).
39
D.C. Code §§ 47-820(a)(1), 47-821(b).
18
is not applicable.40 Meanwhile, the IAAO’s Standard on Mass Appraisal of Real
Property undermines Ms. Davis’s position. It says, for example, that “[t]he cost
approach is applicable to virtually all improved parcels and, if used properly, can
produce accurate valuations.”41
We readily acknowledge that the IAAO also identifies the income approach
as the “preferred valuation approach” for “income-producing properties” in
general, 42 and as the “most appropriate method in valuing commercial and industrial
property if sufficient income data are available.”43 But showing that the income
approach is “preferred” or “most appropriate” is not the same as saying the cost
approach is “wrong.” Our decision in Safeway Stores is instructive on this point. In
that case, we observed that “Safeway may [have] be[en] correct that income
capitalization is generally the best method for valuing income-producing business
40
See generally The Appraisal Foundation, Uniform Standards of
Professional Appraisal Practice (2014), http://www.appraisertom.com/USPAP-
2014-15.pdf; https://perma.cc/8AM5-E6G5.
41
IAAO, supra note 12, at 9.
42
Id. at 10.
43
Id. at 11.
19
property,” but we still held that using the cost method was not “incorrect.”44
Similarly, in Bender v. District of Columbia, we held that an assessment based on
the cost approach was not “incorrect,” even if appellant had shown that the sales
comparison approach “was the preferred methodology.” 45
Ms. Davis’s argument implicitly assumes there are “correct” valuations and a
“correct” amount of taxes the District should collect. But a property’s estimated
market value is not a single, objectively “correct” number. It is only an imperfect
prediction that is subject to all the uncertainties and vagaries of data and the market.
Thus, we have recognized that “estimating market value is a rather subjective art.”46
It requires appraisers “to apply their best judgment to a number of indeterminate
factors,” including “market perceptions, opinions, and attitudes,” all “to calculate a
single market value figure.”47 For that reason, we have said that even a “gross
44
Safeway Stores, Inc. v. District of Columbia, 525 A.2d 207, 211 (D.C.
1987).
45
804 A.2d 267, 268–69 (D.C. 2002).
46
Wash. Post Co. v. District of Columbia, 596 A.2d 517, 522 (D.C. 1991)
(quoting District of Columbia v. Green, 310 A.2d 848, 856 (D.C. 1973)).
47
Wolf v. District of Columbia, 597 A.2d 1303, 1306 n.4 (D.C. 1991) (“Wolf
I”) (quoting American Institute of Real Estate Appraisers, The Appraisal of Real
Estate 272, 504–05 (8th ed. 1983)).
20
disparity” between two appraisals is not enough to show that one is right and the
other is wrong.48
In point of fact, moreover, unrebutted evidence presented to the trial court
showed that valuations based on the income approach often were not much higher
or more accurate predictors than the cost-approach valuations. Take, for example,
the two “Georgetown Park” properties, which comprised a shopping complex and
an unimproved abutting lot. These are the properties on which Ms. Davis relies most
heavily (almost exclusively, in fact) in her briefing. In 2014, those combined
properties sold for a total price of $220 million. According to Mr. Frye’s
computations, both the cost methodology and the income methodology led to quite
similar estimates of the market value of those combined properties, and both those
estimates were substantially below the actual sale price: the cost method yielded a
valuation of $121.3 million, while the income method generated a valuation of
$126.9 million. Thus, either method missed the sale price by about $93-99 million.
This hardly shows that it was gross mismanagement to use the cost method rather
than the income method; and it may well indicate not only the difficulty of predicting
48
See Young Woman’s Christian Ass’n, 731 A.2d at 850–51.
21
market value, but that the Georgetown Park sale was an outlier or anomalous in some
way.
The handful of other Georgetown properties to which Ms. Davis pointed also
fail to show it was gross mismanagement for OTR to rely on the cost method instead
of the income method. First, the properties at 3241 M Street N.W. and 3245 M Street
N.W.; they sold together in 2016 for $18,480,000. The cost-approach valuation for
the combined properties on January 1, 2015, was $6,386,780. Mr. Frye’s proposed
valuation using the income approach was $8,735,430 — about $2 million more than
the cost-approach valuation, but still about $10 million short of the sales price.
Second, the property at 3150 M Street N.W. sold in 2014 for $12,250,000. The cost
method yielded an estimated market value of $4,378,430. In this instance, Mr.
Frye’s income-approach valuation, $9,595,160, was materially higher and closer to
the actual sales price (though still off by $2.65 million, or over 20%). Thus, of the
three properties Ms. Davis points us to (i.e., these two and Georgetown Park), only
one of the three — 3150 M Street N.W. — shows the income approach doing
materially better at approximating the sales price than the cost approach. Ms. Davis
did not point the trial court (and has not pointed us) to any other particular properties
in this context.
22
Ms. Davis asserts that Georgetown properties generally had been selling “for
millions more than their assessed values” under the cost approach, and that this
disparity “confirmed” that OTR had been valuing the properties “incorrectly.” For
support, she cites the deposition testimony of another OTR appraiser (Gregory
Rogers, who was assigned to the “appeals and litigation team”). He stated that the
disparity between assessments and sales (i.e., the “assessment to sales ratio”) of
Georgetown commercial properties “wasn’t very good . . . until [OTR] changed the
methodology” to the income approach. This is some support for the proposition that,
generally speaking at least, the income approach had been found to approximate
sales prices better than the cost approach had done. But the support is insufficient.
A claim of egregious and indisputable mismanagement must rest on something
stronger than a single, conclusory line of deposition testimony that the cost approach
“wasn’t very good.” And Ms. Davis’s reference to an unquantified “millions” fails
to indicate the magnitude of the issue.
This is the same reason Ms. Davis’s reliance on Mr. Omotoso’s opinion is
unavailing. Mr. Omotoso said the cost method “over time . . . will clearly not reflect
market values of properties driven largely by income generating potentials.” This,
like Ms. Davis’s allegation of undervaluing properties by “millions,” is unquantified.
Consequently, even if it indicates that the cost approach was generally undervaluing
23
properties, it does not indicate the magnitude of that issue. After all, whether a
problem amounts to gross mismanagement, rather than simple mismanagement —
if mismanagement at all — is a question of degree. By how much did cost-approach
valuations fall short of market values? How much of an impact on tax collections
did those shortfalls actually have? We do not know, and Ms. Davis does not answer
it with a mere allegation that they fell short by an abstract “millions.”49
We also find it significant that the District was already working to remedy the
problem. It appears from the evidentiary materials the District submitted in support
of summary judgment that OTR was developing a computer model to use the income
approach consistently and reliably for commercial retail and mixed-use properties.
Mr. Frye himself was working on building such a model in early 2015. Although
the District never explicitly argued (in Superior Court) that OTR was waiting to be
able to deploy such a model, its evidence showed it would have been difficult and
risky to employ the income methodology without one. According to a Report by the
Office of the Inspector General, “[t]he sheer challenge of manually applying the
49
Ukwuani, 241 A.3d at 541–42 (“Allegations that are unsupported or
conclusory are ‘insufficient to establish a genuine issue of material fact to defeat the
entry of summary judgment.’” (quoting Beard v. Goodyear Tire & Rubber Co., 587
A.2d 195, 198 (D.C. 1991)).
24
income approach individually to hundreds of properties every year is a daunting,
time-consuming task.” 50 And when appraisers do not use the same model, “[t]he
potential for under-valuing or over-valuing is more likely to occur.” 51 Thus,
evidence proffered by the District indicates that OTR may have had good reason to
hold off switching from the cost to the income approach to valuation. Significantly
for us, the District’s showing on this point (and argument in its brief on appeal) is
unrebutted, as Ms. Davis has not responded to it.
In sum, Ms. Davis may succeed in showing that the income approach was
preferable to the cost approach for the specified properties, but she did not show the
cost approach was “wrong.” We therefore hold that a disinterested observer,
apprised of the information Ms. Davis disclosed, could not reasonably have
concluded that using the cost method instead of the income method to assess
commercial properties in Georgetown amounted to gross mismanagement.
50
Office of the Inspector General, Evaluation of the District’s Management
and Valuation of Commercial Real Property Assessments 7 (2012),
http://app.oig.dc.gov/news/PDF/release10/OIG%20No.%2013-2-
01AT%20BRPAA%20Final%20Report.pdf; https://perma.cc/PBW3-GGQJ.
51
Id.25
B.
We next address whether a disinterested observer could reasonably conclude
Ms. Davis disclosed evidence of a “gross misuse or waste of public resources or
funds.” A “gross . . . waste of public resources or funds” is “a more than debatable
expenditure that is significantly out of proportion to the benefit reasonably expected
to accrue to the government.”52 Ms. Davis charges that OTR’s use of the cost
method grossly wasted public funds by “costing the District millions in lost tax
revenue.” In response, the District argues that yet-to-be-collected tax revenue is not
a public resource or fund, because it is not in the District’s coffers.
We agree with the District. The paradigmatic case of waste is one in which
the government spends money recklessly. 53 It is grounded in an “expenditure.”
What Ms. Davis alleges, however, is not an “expenditure.” Instead, she contends
the District was not collecting as much money as it could have. This sounds more
in mismanagement than in waste. Even on its own terms, though, the allegation
52
Poindexter, 104 A.3d at 857.
53
See, e.g., Williams v. Johnson, 776 F.3d 865, 871 (D.C. Cir. 2015)
(employee disclosed that government’s “expenditures on [a computer program] were
significant,” but the program was “useless” and the government was “just burning
money”).
26
fails, because the District did not fail to collect “public resources or funds.”
Uncollected taxes — money still in the taxpayers’ pockets — are not public funds
that the District can waste or misuse.
We therefore affirm the trial court’s grant of the District’s summary judgment
motion.
III.
Last, we review the trial court’s denial of Ms. Davis’s motion for leave to file
an amended complaint. Alleging she was fired “because she refused to violate the
law,” Ms. Davis sought to add a common law claim for wrongful discharge in
violation of public policy. 54 This cause of action is a “very narrow” exception to
“the general rule that at-will employees may be discharged at any time for any
reason.” 55 The exception applies, as we held in Adams v. George W. Cochran &
54
Ms. Davis could have based a statutory whistleblower claim on the same
allegation but did not do so. See D.C. Code § 1-615.53(a) (prohibiting retaliating
“against an employee because of . . . an employee’s refusal to comply with an illegal
order”).
55
Davis v. Cmty. Alts. of Wash. D.C., Inc., 74 A.3d 707, 709 (D.C. 2013)
(quoting Carl v. Children’s Hosp., 702 A.2d 159, 159–60 (D.C. 1997) (en banc)).
27
Co., Inc., when “the sole reason for the discharge is the employee’s refusal to violate
the law.”56
Ms. Davis allegedly refused to violate D.C. Code §§ 47-820(a) and 47-821(b).
D.C. Code § 47-820(a)(3) states that “[t]he assessed value for all real property shall
be the estimated market value of such property as of the valuation date, as
determined by the Mayor.” D.C. Code § 47-821(b) states that “[t]he Mayor shall
appoint assessors competent to determine values of real property to carry out the
provisions of §§ 47-820 to 47-828 and other relevant portions of this chapter”
(emphasis added). Ms. Davis understands these provisions to require OTR assessors
to appraise real property at its estimated market value.
The trial court denied Ms. Davis’s motion for leave to amend on several
grounds, but said the “decisive factor” was that her claim was futile. According to
the trial court, Ms. Davis could not have violated either cited provision, because they
56
597 A.2d 28, 34 (D.C. 1991). The public policy exception sometimes may
be invoked when the employer has other reasons for discharging the employee. See
Carl, 702 A.2d at 160. Ms. Davis does not claim any of those other situations is
before us in this case, however.
28
impose duties only on the Mayor. The court reasoned that “the only person who
could conceivably ‘violate’ either statute is the Mayor.”
Reviewing the denial of leave to amend for abuse of discretion,57 we perceive
that the trial court based its ruling on an erroneous view of the statutes. Our case
law recognizes that § 47-820(a), at least, imposes an obligation on OTR appraisers.58
Nonetheless, the trial court reasonably could not have ruled otherwise, because a
necessary predicate for Ms. Davis’s Adams claim is missing. To make out a
plausible Adams claim, an employee must show there was “an outright refusal to
violate a specific law, with the employer putting the employee to the choice of
breaking the law or losing [her] job.”59 Ms. Davis concedes that OTR never put her
to such a choice; it never directed her to break the law, nor did she ever refuse to do
so. As our discussion above implies, even if OTR had ordered Ms. Davis to “use
57
Sibley v. St. Albans School, 134 A.3d 789, 797 (D.C. 2016).
58
See Young Women’s Christian Ass’n, 731 A.3d at 852 (a taxpayer
challenging the District’s assessment must demonstrate “that the assessor failed to
fulfill the statutory requirements of . . . D.C. Code § 47-820(a)” (emphasis added));
Safeway Stores, Inc., 525 A.2d at 212 (an appraiser for the District “did not fulfill
his obligation under § 47-820(a) to consider income earning potential” (emphasis
added)).
59
Mandsager v. Jaquith, 706 A.2d 39, 42 (D.C. 1998) (quoting Thigpen v.
Greenpeace, Inc., 657 A.2d 770, 771 (D.C. 1995)).
29
the cost method,” that order would not have directed her to violate the law.60
Therefore, we affirm the denial of Ms. Davis’s motion for leave to amend.
IV.
In sum, we hold that Ms. Davis failed to present sufficient evidence from
which a reasonable jury could find that she made a protected disclosure of either
gross mismanagement or gross waste of public funds. The trial court therefore did
not err in granting the District’s summary judgment motion. We also hold that her
claim of discharge in violation of public policy was futile, as she was not directed to
violate the law and she did not refuse to do so. The trial court therefore did not err
in denying her leave to file an amended complaint.
Affirmed.
60
Id. at 42 (“[I]t is not enough to show that the employee might infer from
the employer’s conduct that she was being asked to do something that was possibly
illegal.” (emphasis added)). Hence Ms. Davis would not have stated a public policy
exception to the at-will employment doctrine merely by alleging that she was fired
for not using the cost method.