DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD , 2016 D.C. App. LEXIS 297 ( 2016 )


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  •                                District of Columbia
    Court of Appeals
    No. 14-CV-846
    AUG - 4 2016
    DISTRICT OF COLUMBIA METROPOLITAN POLICE
    DEPARTMENT,
    Appellant,
    v.                                                       CAP-9192-12
    DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD,
    Appellee,
    and
    FRATERNAL ORDER OF POLICE METROPOLITAN POLICE DEPARTMENT
    LABOR COMMITTEE,
    Intervenor.
    On Appeal from the Superior Court of the District of Columbia
    Civil Division
    BEFORE: FISHER and BECKWITH, Associate Judges; and STEADMAN, Senior
    Judge.
    JUDGMENT
    This case came to be heard on the transcript of record and the briefs filed,
    and was argued by counsel. On consideration whereof, and as set forth in the opinion
    filed this date, it is now hereby
    ORDERED and ADJUDGED that the order on appeal is affirmed.
    For the Court:
    Dated: August 4, 2016.
    Opinion by Senior Judge John Steadman.
    Notice: This opinion is subject to formal revision before publication in the
    Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
    Court of any formal errors so that corrections may be made before the bound
    volumes go to press.
    8/4/16
    DISTRICT OF COLUMBIA COURT OF APPEALS
    No. 14-CV-846
    DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT,
    V.
    DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE.
    AND
    FRATERNAL ORDER OF POLICE METROPOLITAN POLICE DEPARTMENT
    LABOR COMMITTEE, INTERVENOR.
    Appeal from the Superior Court
    of the District of Columbia
    (CAP-9192-12)
    (Hon. Judith N. Macaluso, Trial Judge)
    (Argued January 15, 2016                              Decided August 4, 2016)
    Donna M. Murasky, Senior Assistant Attorney General, with whom Karl A.
    Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
    General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
    appellant.
    Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P.
    Carlton were on the brief, for appellee.
    Marc L. Wilhite for intervenor.
    Before FISHER and BECKWITH, Associate Judges, and STEADMAN, Senior
    Judge.
    2
    STEADMAN, Senior Judge:       The Metropolitan Police Department (MPD)
    proposed to terminate the employment of an officer because of off-duty
    misconduct.     However, an adverse action panel (AAP), after a hearing,
    recommended a penalty of only a thirty-day suspension. The issue before us is
    whether the MPD was nonetheless free to reject that recommendation of the AAP
    and instead to terminate the officer‟s employment. The District of Columbia
    Public Employee Relations Board (PERB) ruled that the MPD could not do so.
    We conclude that this was a reasonable interpretation of the controlling regulations
    and therefore affirm the order on appeal.
    I. Statement of Facts
    MPD Officer Crystal Dunkins was charged in Maryland with several crimes
    for abusing her two children. She pleaded guilty to one count of confining an
    unattended child in exchange for a sentence of five years of probation and the state
    dropping the remaining charges. Reviewing these developments, MPD, through
    then Assistant Chief of Police Shannon P. Cockett, issued a Notice of Proposed
    Adverse Action, charging Officer Dunkins with conduct unbecoming an officer
    and conduct constituting a crime. The proposed penalty was termination.
    3
    Officer Dunkins requested a Departmental Hearing before an AAP. The
    AAP found her guilty of the MPD charges but recommended a thirty-day
    suspension as the appropriate penalty instead of termination.       Assistant Chief
    Cockett found AAP‟s recommendation “inconsistent with the misconduct,” and
    imposed the original proposed adverse action of termination.
    Officer Dunkins unsuccessfully appealed her termination to the Chief of
    Police, and then initiated arbitration proceedings, pursuant to a collective
    bargaining agreement, to review, inter alia, whether “the [Assistant Chief of
    Police] had the authority to impose the penalty proposed in the Notice rather than
    the [AAP‟s] recommendation[.]” The arbitrator ruled that 6-A DCMR § 1001.5,
    18 D.C. Reg. 417 (Feb. 7, 1972) (§ 1001.5) was the controlling regulation and
    that, under the plain language of that regulation, MPD could only impose a penalty
    of thirty days‟ suspension.1
    1
    Sec. 1001.5 provides, in relevant part:
    upon receipt of the trial board‟s findings and
    recommendations, and no appeal to the Mayor has been
    made, the Chief of Police may either confirm the findings
    and impose the penalty recommended, reduce the
    penalty, or may declare the board‟s proceedings void and
    refer the case to another regularly appointed trial board.
    4
    On appeal by MPD, the PERB affirmed the arbitrator‟s decision. It agreed
    that § 1001.5 was the controlling regulation and rejected MPD‟s arguments to the
    contrary. MPD then appealed to the Superior Court, which affirmed the PERB
    decision, and in turn MPD appeals to us.2
    II. Application of § 1001.5
    We begin with an iteration of our well-established standard of review when
    addressing challenges to PERB rulings.3 To that end, “[t]his court will not easily
    disturb a decision of the PERB.” Fraternal Order of Police/Dep’t of Corr. Labor
    Comm. v. District of Columbia Pub. Emp. Relations Bd., 
    973 A.2d 174
    , 176 (D.C.
    2
    Where, as here, an appeal derives from the Superior Court‟s review of a
    PERB decision, this court will review as though it was the court of original
    appellate jurisdiction. Gibson v. District of Columbia Pub. Relations Bd., 
    785 A.2d 1238
    , 1241 (D.C. 2001).
    3
    The PERB in the case before us is technically reviewing a decision by an
    arbitrator. Generally, though its authority to set aside an arbitral award is limited,
    the PERB may do so where an award is “on its face contrary to law and public
    policy[,]” D.C. Code § 1-605.02 (6) (2001). “Absent a clear violation of law[,]
    one evident on the face of the arbitrator‟s award, the PERB lacks authority to
    substitute its judgment for the arbitrator‟s.” Fraternal Order of Police/Dep’t of
    Corr. Labor Comm. v. District of Columbia Pub. Emp. Relations Bd., 
    973 A.2d 174
    , 177 (D.C. 2009) (internal quotation marks omitted). However, in the instant
    case, the PERB gave no indication that it considered its authority in interpreting
    the relevant regulations to be other than plenary and appeared to make a de novo
    independent analysis of the legal issue. We therefore review its decision as its
    authoritative interpretation of the applicable law and proceed on that basis.
    5
    2009). Rather, “we defer to the [PERB‟s] interpretation of the CMPA unless the
    interpretation is „unreasonable in light of the prevailing law or inconsistent with
    the statute‟ or is „plainly erroneous.‟” 
    Id. (quoting Doctors
    Council of the Dist. of
    Columbia Gen. Hosp. v. District of Columbia Pub. Emp. Relations Bd., 
    914 A.2d 682
    , 695 (D.C. 2007)). Put differently, we will only set aside a decision of the
    PERB if it is “rationally indefensible.” Drivers, Chauffeurs, & Helpers Local
    Union No. 639 v. District of Columbia, 
    631 A.2d 1205
    , 1216 (D.C. 1993); see also
    
    id. at 1215-16
    (“Even if, on our own, we would reach a different conclusion from
    the PERB‟s, we must defer to the PERB‟s interpretation unless it is clearly
    erroneous.”) (citing Public Emp. Relations Bd. v. Washington Teachers’ Union
    Local No. 6, 
    556 A.2d 206
    , 210 (D.C. 1989)). This considerable deference derives
    from our recognition that the PERB has “special competence” to address questions
    arising under the CMPA. Hawkins v. Hall, 
    537 A.2d 571
    , 575 (D.C. 1988); see
    also D.C. Code § 1-605.01 (1979) (establishing PERB).4 With this standard of
    review in mind, we turn to the challenge to the PERB ruling that, under § 1001.5,
    MPD did not have the authority to impose a sanction on Officer Dunkins greater
    than that recommended by the AAP.
    4
    The District argues that no particular deference should be given to the
    PERB interpretation because, as will be discussed infra, at least one other agency
    has occasion to be involved in personnel disciplinary cases. However, the PERB
    was clearly acting here within its general statutory role and we see no compelling
    reason to disregard its interpretation if reasonable.
    6
    Prior to January 1, 1980, disciplinary actions involving police officers were
    governed by a 1906 Act of Congress that established trial boards to adjudicate such
    proceedings, now codified, as amended, as D.C. Code § 5-133.06 (2012 Repl.).
    See An Act To amend section one of an Act entitled “An Act relating to the
    Metropolitan police of the District of Columbia,” approved February twenty-
    eighth, nineteen hundred and one, Pub. L. No. 59-205, ¶ 5, 34 Stat. 221, 222
    (1906). Regulations were promulgated governing the trial boards and are now
    found in title 6, subtitle A of the District of Columbia Municipal Regulations. The
    provision that plays a key role in this appeal is 6-A DCMR § 1001.5, whose text is
    set forth in footnote 1, supra.5
    In 1979, the Council of the District of Columbia enacted the Comprehensive
    Merit Personnel Act, generally covering the entire field of employment by the
    District of Columbia.     D.C. Code § 1-601.01-636.03 (2012 Repl.).       The Act
    applied fully to all employees hired after January 1, 1980, a class into which
    Officer Dunkins fell. As a temporary measure, all existing personnel rules and
    regulations remained in effect until superseded, D.C. Code § 1-632.01 (a). The
    Office of Personnel had authority delegated to it by the Mayor to issue new rules
    5
    Terminology becomes somewhat unclear as used by the parties here. It
    appears, however, undisputed that the AAP performs the functions of the trial
    boards established by the 1906 legislation.
    7
    and regulations under the Act.       It exercised that authority by promulgating
    regulations first set forth in 30 D.C. Reg. 5874 (Nov. 11, 1983) with subsequent
    amendments.
    The key regulation relating to the issue before us is 6-B DCMR § 1601.5 (a),
    53 D.C. Reg. 3974, 3974 (May 12, 2006), which provides as follows:
    Any procedures for handling corrective or adverse
    actions involving uniformed members of the
    Metropolitan Police Department, or of the Fire and
    Emergency Medical Services Department (FEMSD) at
    the rank of Captain or below provided for by law, or by
    regulations of the respective departments in effect on the
    effective date of these regulations, including but not
    limited to procedures involving trial boards, shall take
    precedence over the provisions of this chapter to the
    extent that there is a difference.
    The PERB reasoned that this provision preserved the effectiveness of § 1001.56
    and ruled that it applied to this case, thereby barring the imposition of any penalty
    greater than that recommended by the AAP.
    6
    The statute that created trial boards, D.C. Code § 5-133.06 (2012 Repl.),
    and formed the basis for the promulgation of § 1001.5 was made inapplicable to
    later-hired police officers by the CMPA. D.C. Code § 1-632.03 (a)(1)(Z) (2012
    Repl.). However, as indicated, PERB ruled that § 1001.5 continued to apply
    because of § 1601.5 (a), which was duly promulgated under the authority of the
    CMPA.
    8
    MPD‟s challenge to the PERB‟s reliance on § 1601.5 (a) as incorporating
    the old § 1001.5 is based on the fact that § 1601.5 (a) only applies to “procedures.”
    MPD argues that § 1001.5 is a substantive provision, not one relating to a
    “procedure.” It analogizes § 1001.5 to a provision governing a sentence that may
    be imposed in a criminal case, or a cap on damages in a civil case.7
    While the argument of MPD is not without some force, it does not carry the
    day in light of our standard of review. The word “procedures” can have an
    expansive meaning, and nothing in § 1601.5 (a) suggests that the intent was a
    sharply limited one. MPD points out that the title of § 1001.1 is “Investigation and
    Findings” as opposed to § 1000, which is titled “Rules of Procedure.” However,
    Chapter A10 of Title 6 (of which both are subsections) is headed generally
    7
    We do not understand the MPD to take issue with the proposition that if in
    fact § 1001.5 is applicable here, as the PERB ruled, its provisions bar the
    imposition of a greater penalty than that recommended by the AAP. MPD‟s
    present position, as argued to us, is that, since in its view § 1001.5 is inapplicable
    by its very terms, the controlling provision is 6-B DCMR § 1613.2. MPD reads
    this provision as authorizing the imposition of the originally proposed penalty; viz.,
    termination. See the discussion in part III of this opinion. MPD‟s long-standing
    position since the passage of the CMPA, now reflected in its General Order 1202.2
    (V)(K)(8) (2006), dealing with “Disciplinary Procedures and Processes,” is that the
    deciding officer can impose the penalty originally recommended and reject the
    recommendation of the AAP. However, as the PERB noted, this provision is
    overridden by a duly promulgated regulation, such as § 1613.2 and § 1001.5. See
    District of Columbia v. Henderson, 
    710 A.2d 874
    , 877 (D.C. 1998) (noting that the
    MPD General Order cannot override a regulation, in that case 18 DCMR § 2002.2
    (b)).
    9
    “Disciplinary Procedures,” and indeed, the MPD General Order which the MPD
    claims is controlling is itself headed “Disciplinary Procedures and Processes.” See
    supra note 7; cf. Morton v. Mancari, 
    417 U.S. 535
    , 549 (1974) (“[R]epeals by
    implication are not favored.”) (quoted with approval in Owens v. District of
    Columbia, 
    993 A.2d 1085
    , 1088 (D.C. 2010) (citing District of Columbia Metro.
    Police Dep’t v. Perry, 
    638 A.2d 1138
    , 1144 (D.C. 1994))). It was not illogical to
    make no distinction between pre- and post-CMPA hires by the MPD as to the
    imposition of disciplinary sanctions, and the PERB interpretation merely continued
    a long-standing pre-existent practice. In short, we see no basis to conclude that the
    ruling by the PERB as to the application to this case of § 1001.5 is an unreasonable
    one.8
    III. Section 1613.1
    At the end of its order, having ruled that § 1001.5 controls this appeal, the
    PERB added a statement that even if § 1001.5 were not applicable, the comparable
    provision in the applicable regulation, 6-B DCMR § 1613.1 & .2, 47 D.C. Reg.
    7094, 7103 (Sept. 1, 2000), would lead to the same result. Those provisions read:
    8
    MPD complains about the relative brevity of the PERB analysis of the
    § 1001.5 issue. However, it was given extensive analysis in prior arbitration
    decisions and it appears plain that the PERB considered it was making an
    important interpretation of the applicable law. See supra note 3.
    10
    1613.1       The deciding official, after considering the
    employee‟s response and the report and recommendation
    of the hearing officer pursuant to § 1612, when
    applicable, shall issue a final decision.
    1613.2        The deciding official shall either sustain the
    penalty proposed, reduce it, remand the action with
    instruction for further consideration, or dismiss the action
    with or without prejudice, but in no event shall he or she
    increase the penalty.
    The PERB simply said:        “Thus, § 1613.2 precludes a deciding official from
    increasing the penalty recommended by a hearing officer by whatever name.” But
    it then immediately added: “If § 1613.2 did not preclude increasing the penalty,
    then § 1001.5 would supersede it and still preclude the assistant chief from
    increasing the penalty.” Thus, it is clear that the eventual controlling ruling relates
    to the continued application of § 1001.5.
    Nonetheless, MPD would have us rule on the validity of the PERB
    interpretation of § 1613.2. MPD focuses on the language “penalty proposed.” It
    asserts that this phrase refers to the penalty originally proposed—in this case,
    termination—rather than the penalty recommended by the AAP. It asserts that this
    meaning of “penalty proposed” was definitively established by our decision in
    Hutchinson v. District of Columbia Office of Emp. Appeals, 
    710 A.2d 227
    (D.C.
    1998).
    11
    In Hutchinson, a deputy fire chief proposed that Hutchinson, an employee of
    the District of Columbia Fire Department, be removed for inefficiency. 
    Id. at 229.
    Another deputy fire chief, serving as a “disinterested designee,” recommended a
    ninety-day suspension. Nonetheless, the Fire Chief opted to remove Hutchinson.
    Hutchinson exercised his right to appeal to the Office of Employee Appeals (OEA)
    under D.C. Code § 1-606.03 (a). An administrative law judge of the OEA upheld
    Hutchinson‟s removal, and the full OEA denied Hutchinson‟s subsequent petition
    for review. Hutchinson petitioned for reversal by the Superior Court, which was
    denied, and in turn to us.
    Among other things, Hutchinson challenged the imposition of termination
    rather than the ninety-day suspension recommended by the disinterested designee.
    We noted that his argument turned on the interpretation of D.C. Personnel Regs.
    § 1614.49 (1987), which was in all relevant respects identical to § 1613.2.10 We
    deferred to the interpretation of the OEA that the “penalty proposed” referred to
    the original proposed sanction rather than that recommended by the disinterested
    designee, observing that “[t]he purpose of the OEA is to review certain personnel
    decisions of other District of Columbia agencies” and that “the OEA has developed
    9
    34 D.C. Reg. 1845, 1858 (Mar. 20, 1987).
    10
    47 D.C. Reg. 7094, 7103 (Sept. 1, 2000).
    12
    an expertise in administering and enforcing the District of Columbia Personnel
    Regulations.” 
    Hutchinson, 710 A.2d at 234
    .
    On its face, therefore, the PERB‟s summary interpretation of § 1613.2 runs
    counter to that of the OEA upheld by us in Hutchinson. But in Hutchinson, as
    presented to us, the interpretation of the relevant section was conclusive to the
    appeal. That is not true here. Hutchinson involved a Fire Department employee,
    not an employee of the MPD, and there is no suggestion in that opinion that the
    Fire Department had a pre-existing provision comparable to § 1001.5, which was a
    regulation pertaining purely to the MPD. Nor is there any compelling reason why
    the interpretation by the OEA, acting within its statutory authority, should be
    favored over that of the PERB, also acting within its statutory authority to review
    arbitration decisions.
    In this posture, we see no reason to reach out to decide an issue not squarely
    presented to us in this appeal. If we were to review the PERB interpretation, we
    would want to do so in a context where the PERB addressed the issue as
    determinative and engaged in an analysis of its interpretation of § 1613.2 and
    13
    considered carefully our decision in Hutchinson and the interpretation of that
    section by OEA. None of that is presented here.11
    IV. Conclusion
    In sum, we see no basis to hold that the PERB‟s affirmance of the arbitral
    award, applying § 1001.5 as a procedural rule via § 1601.5 (a), was rationally
    indefensible. 
    Drivers, supra
    , 631 A.2d at 1216. The PERB order is, therefore,
    Affirmed.
    11
    Of course, with the potential conflicting interpretations identified, the
    executive and legislative branches are fully empowered to resolve the conflict
    prospectively through legislative or regulatory means. Indeed, it appears that
    Chapter 16 of Title 6-B has very recently been extensively revised to “implement a
    new disciplinary and grievance program,” effective February 3, 2016. See 63 D.C.
    Reg. 1265. Since no party has cited these amendments or briefed the issue, we
    take no position with respect to this development.
    

Document Info

Docket Number: 14-CV-846

Citation Numbers: 144 A.3d 14, 2016 D.C. App. LEXIS 297, 2016 WL 4158798

Judges: Fisher, Beckwith, Steadman

Filed Date: 8/4/2016

Precedential Status: Precedential

Modified Date: 10/26/2024