DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD

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.