DC MPD v. DC Public Employee Relations Board (PERB) & FOP

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-1115
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-4340-18)
(Hon. John M. Campbell, Trial Judge)
(Argued February 8, 2022 Decided September 15, 2022)
Stacy L. Anderson, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General
at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor
General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for
appellant.
Geoffrey H. Simpson, with whom Bruce A. Fredrickson was on the brief, for
appellee.
Daniel J. McCartin, with whom Anthony M. Conti was on the brief, for
intervenor.
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Before EASTERLY and MCLEESE, Associate Judges, and THOMPSON, * Senior
Judge.
MCLEESE, Associate Judge: Appellant, the Metropolitan Police Department
(MPD), terminated Officer Michael Thomas based on an incident in which Officer
Thomas, while off duty and in Maryland, shot an unarmed civilian. An arbitrator
reinstated Officer Thomas, ruling that Officer Thomas instead should be suspended
for forty-five days. Appellee, the Public Employee Relations Board (PERB), upheld
the arbitrator’s decision, as did the Superior Court. We vacate and remand the case
to the Superior Court to in turn remand the case to PERB for further proceedings.
I. Factual Background
In sum, the evidence about the shooting was as follows. Officer Thomas was
with his girlfriend, Hope Mathis, at a home in Maryland early one morning. Officer
Mathis was also an MPD officer, and both officers were off duty. Officer Thomas
heard and saw someone near his car. Officer Thomas and Officer Mathis went onto
the front porch, without calling 911. The officers were outside of their jurisdiction,
*
Senior Judge Thompson was an Associate Judge of the court at the time of
argument. She began her service as a Senior Judge on February 18, 2022.
3
and they had received training indicating that they should have called 911 before
taking any police action in response to a nonviolent property crime.
After stepping onto the porch, Officer Thomas yelled “police truck,” in an
attempt to get the person by the car, Julio Lemus, to run away. Mr. Lemus did not
run away. Officer Thomas then demanded that Mr. Lemus show his hands.
According to Officer Thomas, Mr. Lemus moved toward Officer Thomas and
moved his hands towards the front pocket of his hoodie. Officer Thomas then shot
Mr. Lemus twice.
Mr. Lemus’s testimony differed from Officer Thomas’s in certain respects.
Mr. Lemus testified that he had his hands up and that Officer Thomas never
identified himself as a police officer. Mr. Lemus had consumed a substantial amount
of alcohol before the incident. When Officer Thomas approached, Mr. Lemus was
trying to urinate near the car. Mr. Lemus was unarmed. As a result of the shooting,
Mr. Lemus was hospitalized for over two months and underwent six surgeries.
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II. Procedural Background
Officer Thomas was not prosecuted for the shooting. MPD sought to
terminate Officer Thomas, charging him with (1) committing a crime by creating a
substantial risk of death or serious injury, and (2) violating MPD’s use-of-force
policy. After an evidentiary hearing, an MPD adverse-action panel found by a
preponderance of the evidence that Officer Thomas was guilty of both charges. The
panel also concluded that the charges warranted termination. In determining the
appropriate sanction, the panel applied a set of factors taken from Douglas, 5
M.S.P.B. 313, 331-32 (1981) (providing non-exhaustive list of twelve factors in
determining appropriate penalty for employee misconduct).
Officer Thomas appealed to the chief of police, who accepted the
recommendation of termination.
Intervenor, the Fraternal Order of Police (FOP), which is the union that
represents Officer Thomas, took the matter to arbitration. The arbitrator found
sufficient evidence of Officer Thomas’s guilt on both charges but concluded that
termination was not an appropriate remedy. After listing the Douglas factors, the
arbitrator noted that several of those factors are routinely considered by arbitrators
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when determining whether proposed discipline is appropriate. The arbitrator also
cited a treatise discussing factors considered by arbitrators when making such
determinations.
The arbitrator took issue with the adverse-action panel’s treatment of three of
the twelve Douglas factors. First, the arbitrator focused on whether the sanction
proposed in this case was consistent with sanctions imposed on other employees for
the same or similar offenses. The adverse-action panel had not cited comparable
cases, and the arbitrator concluded that several cases the parties had cited were not
comparable. The arbitrator also discussed a case in which an off-duty police officer,
Officer Ford, had received a forty-five day suspension for shooting and killing a
person who had attacked the officer. Second, the arbitrator questioned whether only
termination would suffice to deter future misconduct. Finally, the arbitrator
expressed the view that a sanction short of termination might have sufficed to
rehabilitate Officer Thomas.
In the arbitrator’s view, the adverse-decision panel’s analysis of those three
Douglas factors was not “within tolerable limits of reasonableness.” Douglas, 5
M.S.P.B. at 329. The arbitrator then imposed the same forty-five day suspension
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imposed in Officer Ford’s case, which the arbitrator described as involving “as close
to similar misconduct as is in evidence.”
MPD challenged the arbitrator’s decision before PERB, arguing that the
decision was “on its face . . . contrary to law and public policy.” D.C. Code
§ 1-605.02(6) (authorizing PERB to set arbitral awards aside on that ground). MPD
argued that the arbitrator’s decision was on its face contrary to law in several
respects. First, MPD argued that the arbitrator erroneously placed the burden on
MPD to show that other employees had been terminated for similar conduct. Rather,
MPD would have had such a burden only if Officer Thomas had made an “initial
showing that . . . [MPD] treated similarly[ ]situated employees differently.” D.C.
Metro. Police Dep’t v. D.C. Off. of Emp. Appeals, 88 A.3d 724, 730 n.3 (D.C. 2014)
(internal quotation marks omitted). Second, MPD argued that, under Douglas, an
agency’s selected sanction may be set aside only if the agency failed to weigh the
relevant factors or the proposed sanction fell outside the limits of reasonableness.
According to MPD, the arbitrator did not reach either conclusion and could not
properly have done so. Third, MPD argued that the arbitrator erred by imposing a
forty-five day sanction based on the Ford case, because that case involved self-
defense and thus was not comparable to the present case.
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MPD also argued that the arbitrator’s decision was contrary to public policy.
Specifically, MPD argued that (1) there is a clear public policy against police officers
committing crimes involving the use of deadly force, and (2) reinstating Officer
Thomas would be contrary to that public policy.
PERB upheld the arbitrator’s decision. PERB explained that its authority to
overturn arbitral awards is limited. Citing a number of its previous decisions, PERB
concluded that the arbitrator could permissibly reach his own decision about the
appropriate sanction, rather than being required to defer to the sanction picked by
MPD as long as that sanction was reasonable. PERB did not specifically address
MPD’s other arguments as to why the arbitrator’s award was contrary to law.
Instead, PERB stated generally that “mere disagreement with the Arbitrator’s
interpretation does not make an award contrary to law and public policy.”
PERB also concluded that the arbitrator’s award was not contrary to public
policy. After emphasizing that the authority to set aside arbitral awards on that basis
is narrow, PERB stated without explanation that MPD had not identified a clear
violation of public policy.
MPD appealed to the Superior Court, which affirmed PERB’s decision.
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III. Standards of Review
We owe no deference to the trial court’s ruling, instead reviewing PERB’s
decision “as if the matter had been heard initially in this court.” Gibson v. D.C. Pub.
Emp. Rels. Bd., 785 A.2d 1238, 1241 (D.C. 2001).
This court’s cases have been unclear on the nature of the deference this court
owes to PERB’s decisions. The earliest cases reviewed PERB’s decisions under
generally applicable standards of administrative review. See, e.g., Teamsters Loc.
Union 1714 v. Pub. Emp. Rels. Bd., 579 A.2d 706, 709 n.3 (D.C. 1990) (“[O]ur cases
involving review of PERB decisions have proceeded on the ground that . . . PERB’s
legal conclusions are subject to the ordinary amount of deference given to agencies
entrusted with implementation of statutes.”). We subsequently stated, however, that
unless PERB’s “decision is rationally indefensible, we are obliged to sustain it.”
Drivers Loc. Union No. 639 v. District of Columbia, 631 A.2d 1205, 1216 (D.C.
1993). We have used the latter formulation in several other cases addressing the
deference we owe to PERB decisions. E.g., Am. Fed’n of State, Cnty., & Mun. Emps.
Loc. 2087 v. Univ. of D.C., 166 A.3d 967, 972 (D.C. 2017).
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It is not entirely clear whether the court intended the words “rationally
indefensible” to indicate that the decisions of PERB are entitled to unusually strong
deference. In any event, we are bound to follow our earlier decisions to the extent
there is any inconsistency between them and our later decisions. See, e.g., Thomas
v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999) (“Where a division of this court
fails to adhere to earlier controlling authority, we are required to follow the earlier
decision rather than the later one.”). We therefore clarify that our review of PERB’s
decisions is not unusually deferential but rather is governed by the same principles
of review that apply to other expert agencies. “Recognizing agency expertise, we
accord great weight to any reasonable construction of an ambiguous statute by the
agency charged with its administration.” Johnson v. D.C. Dep’t of Emp. Servs., 111
A.3d 9, 11 (D.C. 2015) (brackets, ellipses, and internal quotation marks omitted).
“We will sustain the agency’s interpretation even if a [party] advances another
reasonable interpretation of the statute or if we might have been persuaded by the
alternate interpretation had we been construing the statute in the first instance.” Id.(internal quotation marks omitted).
PERB “has only limited authority to overturn an arbitral award.” D.C. Pub.
Emp. Rels. Bd. v. Fraternal Ord. of Police/Metro. Police Dep’t Lab. Comm., 987
A.2d 1205, 1208 (D.C. 2010) (internal quotation marks omitted). In the present case,
10
MPD asked PERB to set aside the arbitrator’s award on the ground that the award
“on its face is contrary to law and public policy.” D.C. Code § 1-605.02(6). We
have acknowledged the ambiguity of the phrase “on its face is contrary to law and
public policy.” Fraternal Ord. of Police/Dep’t of Corr. Lab. Comm. v. D.C. Pub.
Emp. Rels. Bd., 973 A.2d 174, 177-78 (D.C. 2009). Under ordinary principles of
administrative law, we therefore would defer to PERB’s reasonable interpretation of
what it means for an arbitral award to be on its face contrary to law and public policy.
Id. at 178. An agency decision, however, must “state the basis of its ruling in
sufficient detail and be fully and clearly explained, so as to allow for meaningful
judicial review of and deference to the agency’s decision.” DC Appleseed Ctr. for
L. & Just., Inc. v. D.C. Dep’t of Ins., Sec., & Banking, 214 A.3d 978, 985 (D.C.
2019) (internal quotation marks omitted).
IV. Analysis
We flag at the outset one lurking issue. Section 1-605.02(6) authorizes PERB
to set aside an arbitral award if the award “on its face is contrary to law and public
policy.” (Emphasis added.) The word “and” is ordinarily understood as a term of
conjunction. See, e.g., Whitfield v. United States, 99 A.3d 650, 657 (D.C. 2014)
(“[U]se of the word ‘and’ is—absent evidence to the contrary—treated as a
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conjunctive . . . .”). Section 1-605.02(6) thus arguably provides that an arbitral
award can be set aside only if the award is contrary to both law and public policy.
In some settings, however, “and” can be interpreted to mean “or.” See, e.g., Fields
v. District of Columbia, 232 A.2d 300, 304 (D.C. 1967) (“It is a well-recognized
principle of statutory construction that the conjunctive and disjunctive are signified
interchangeably if to do so is consistent with the legislative intent.”) (internal
quotation marks omitted); 1A Norman Singer & Shambie Singer, Sutherland
Statutes and Statutory Construction § 21.14 (7th ed. Nov. 2021 update) (citing
authority for proposition that “laxity in the use of the conjunctive ‘and’ and the
disjunctive ‘or’ is so frequent that the doctrine has been accepted that they are
interchangeable and the one may be substituted for the other if to do so is necessary
to give effect to any part of a statute or to effectuate the intention of the Legislature”).
The court discussed this issue in Fraternal Ord. of Police, 973 A.2d at 179.
Without deciding the issue, we suggested that the terms “contrary to law” and
contrary to “public policy” overlap, because “an award that is contrary to a specific
law ipso facto may be said to be contrary to the public policy that the law embodies.”
Fraternal Ord. of Police, 973 A.2d at 179. We also decline to resolve this issue in
the present case. MPD’s brief in this court takes the position that the arbitral award
should properly be set side if the award on its face is contrary to either law or public
12
policy. Neither FOP nor PERB explicitly disputes that position. We therefore take
the point as conceded and decide the case accordingly.
A. On Its Face Contrary to Law
Our prior cases establish three principles that provide guidance as to the
meaning of the words “on its face contrary to law.” First, an arbitral award will not
be set aside as “on its face contrary to law” simply because PERB or this court might
reach a different conclusion as to a legal issue decided by the arbitrator. E.g., D.C.
Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd., 901 A.2d 784, 789 (D.C. 2006).
That is because, by agreeing to arbitrate, “the parties bargained for the arbitrator’s
interpretation” of the law, not that of PERB or the court. Id. Second, an arbitral
award can be set aside if a “clear violation of law” is “evident on the face of the
arbitrator’s award.” Id. (internal quotation marks omitted); see Fraternal Ord. of
Police, 973 A.2d at 178 (“[T]he statutory reference to an award that on its face is
contrary to law and public policy may include an award that was premised on a
misinterpretation of law by the arbitrator that was apparent on its face.”) (internal
quotation marks omitted). Third, an award will be viewed as on its face contrary to
law if, “in arriving at the award, the arbitrator looks to an external law for guidance
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and purports to apply that law, but overlooks or ignores the law’s express
provisions.” Fraternal Ord. of Police, 973 A.2d at 178.
As we have previously noted, MPD argued to PERB that the arbitrator’s
decision was on its face contrary to law for three reasons: (1) the arbitrator
erroneously placed the burden on MPD to show that other employees had been
terminated for similar conduct; (2) under Douglas, the arbitrator erred by setting
aside MPD’s selected sanction without finding either that MPD failed to weigh the
relevant factors or that the proposed sanction fell outside the limits of
reasonableness; and (3) the arbitrator erred by imposing a forty-five day sanction
based on a case that was not comparable to the present case.
PERB addressed one aspect of MPD’s argument in some detail, concluding
that the arbitrator could permissibly reach his own decision about the appropriate
sanction, rather than being required to defer to the sanction picked by MPD as long
as that sanction was reasonable. MPD argues, however, that the collective
bargaining agreement contains provisions that should be interpreted to require the
arbitrator to defer to MPD’s selected remedy as long as that remedy is reasonable.
MPD has provided this court with the collective bargaining agreement, but
apparently did not provide the collective bargaining agreement to PERB. MPD also
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did not argue to PERB that the terms of the collective bargaining agreement required
the arbitrator to defer to MPD’s selected sanction. We decline to consider
information and argument that were not presented to PERB. See, e.g., Fraternal
Ord. of Police, 973 A.2d at 179 (declining to consider argument made for first time
before this court; citing D.C. Code § 1-617.13(b) (“No . . . objection to an order of
[PERB] shall be considered . . . , unless such . . . objection was first urged before
[PERB].”)); Friends of McMillan Park v. D.C. Zoning Comm’n, 211 A.3d 139, 148
(D.C. 2019) (“Our review, however, is limited to the evidence in the administrative
record before the agency.”). Given the limited arguments and information presented
to PERB, we agree that PERB’s ruling on this point was reasonable. See generally
Elkouri & Elkouri, How Arbitration Works 15-28 to -30 (7th ed. 2012) (“Court
decisions recognize broad arbitral discretion to review the reasonableness of the
penalty imposed by the employer in relation to the employee’s wrongful
conduct. . . . Of course, . . . the parties may limit the discretion of the arbitrator to
modify the discipline imposed by the employer by [using] express language to that
effect in the collective bargaining agreement.”); id. at 15-33 to -39 (noting different
approaches taken as to authority of arbitrator to modify sanctions).
We note, however, that it is not at all clear to us whether the arbitrator
understood himself to be exercising general authority to modify the sanction selected
15
by MPD or instead understood himself to be conducting the more limited review
authorized under Douglas. If this matter is returned to the arbitrator, that issue would
warrant clarification.
We conclude that a remand to PERB is necessary with respect to MPD’s other
arguments that the arbitrator’s award was on its face contrary to law. PERB did not
specifically address those arguments, instead simply stating without further
explanation that “mere disagreement with the Arbitrator’s interpretation does not
make an award contrary to law and public policy.” On remand, PERB should
address MPD’s specific arguments in light of the general principles noted above.
Finally, we address an argument raised by FOP and PERB at oral argument:
that an arbitrator’s determination as to the appropriate sanction for employee
misconduct could never be on its face contrary to law. FOP and PERB took the
position, for example, that PERB and the courts would be powerless to overturn an
arbitral award reinstating a police officer who had committed cold-blooded mass
murder of other officers and civilians. We disagree. In sufficiently extreme
circumstances, an arbitrator’s selection of penalty could be so arbitrary and
capricious as to be on its face contrary to law. Cf. Love v. D.C. Off. of Emp. Appeals,
90 A.3d 412, 425 (D.C. 2014) (agency’s decision to terminate employees for
16
misconduct was “arbitrary, capricious, and not in accordance with the law”);
Douglas, 5 M.S.P.B. at 334 n.72 (“[I]t is possible for a penalty to be so
disproportionate to the offense as to be illegal . . . .”) (internal quotation marks
omitted).
B. On Its Face Contrary to Public Policy
The public-policy exception to the enforcement of arbitral awards is
“extremely narrow.” D.C. Metro. Police Dep’t, 901 A.2d at 789 (internal quotation
marks omitted). The “public policy alleged to be contravened must be well defined
and dominant, and is to be ascertained by reference to the laws and legal precedents
and not from general considerations of supposed public interests.” Id. (internal
quotation marks omitted). The Supreme Court of the United States has explained
that the issue is not whether the employee’s misconduct violated public policy but
rather whether enforcing the arbitral award would do so. E. Associated Coal Corp.
v. UMW, Dist. 17, 531 U.S. 57, 62-63 (2000). The Supreme Court also has stated,
however, that “courts’ authority to invoke the public policy exception is not limited
solely to instances where the arbitration award itself violates positive law.” Id. at
63. It does not appear that either PERB or this court has expressly addressed the
latter issue.
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MPD argues in the present case that there is a well-defined and dominant
public policy against the criminal use of deadly force by the police. PERB and FOP
understandably do not dispute that point. Rather, the dispute is over whether
reinstating Officer Thomas would violate that public policy. Courts around the
country have divided when confronting similar issues. Compare, e.g., City of
Seattle, Seattle Police Dep’t v. Seattle Police Officers’ Guild, 484 P.3d 485, 489-
507 (Wash. Ct. App. 2021) (upholding trial-court order setting aside arbitral award
as against public policy, where arbitrator reinstated officer who used excessive force
by punching handcuffed suspect in face, breaking suspect’s orbital bone), and City
of Des Plaines v. Metro. Alliance of Police, Chapter No. 240, 30 N.E.3d 598, 600-
610 (Ill. App. Ct. 2015) (upholding in part trial-court order setting aside arbitral
award as against public policy, where arbitrator reinstated officer who used
excessive force against arrestees; case remanded for arbitrator to further consider
appropriate sanction), with, e.g., Town of South Windsor v. S. Windsor Police Union
Loc. 1480, 770 A.2d 14, 16-30 (Conn. 2001) (reversing order setting aside arbitral
award as contrary to public policy, where arbitrator reinstated officer who pointed
gun at young men playing basketball without permission at gymnasium); see
generally Tracy Bateman Farrell, Vacating on Public Policy Grounds Arbitration
Awards Reinstating Discharged Employees—State Cases, 112 A.L.R.5th 263, § 18
(2003 & Cum. Supp.) (citing cases).
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We do not view PERB as having adequately explained its decision not to set
aside the arbitral award as against public policy. After emphasizing that the
authority to set aside arbitral awards on that basis is narrow, PERB simply stated
without explanation that MPD had not offered a clear violation of public policy. A
remand to PERB is therefore necessary on this issue as well.
For the foregoing reasons, the judgment of the Superior Court is vacated and
the case is remanded for the Superior Court to remand the case to PERB for further
proceedings.
So ordered.