COUNCIL OF DISTRICT OF COLUMBIA v. CLAY

• Decision Date: 31 October 1996
• Docket Number: No. 95-CV-1062,95-CV-1062
• Citation: 683 A.2d 1385
• Parties: COUNCIL OF the DISTRICT OF COLUMBIA, Appellant, v. Rachel L. CLAY, Appellee.
• Court: D.C. Court of Appeals

683 A.2d 1385

COUNCIL OF the DISTRICT OF COLUMBIA, Appellant, v. Rachel L. CLAY,Appellee.

No. 95-CV-1062.

District of Columbia Court of Appeals.

Argued June 24, 1996.

Decided October 31, 1996.

APPEAL FROM THE SUPERIOR COURT, JOAN ZELDON, J.

Edward E. Schwab, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellant.

Bruce Comly French, for appellee.

Before WAGNER, Chief Judge, and SCHWELB and REID, Associate Judges.

SCHWELB, Associate Judge:

The principal question in this case is whether appellee Rachel L. Clay, who was the Director of the Legislative Services Division of the Council of the District of Columbia, a DS-13 position,¹ until her termination in 1990, was a member of the Career Service who could be discharged only for cause. We hold that she was not.

I. PRIOR PROCEEDINGS

The District of Columbia appeals from an order of the Superior Court which affirmed a decision of the Office of Employee Appeals (OEA) adverse to the District. The challenged OEA decision ordered Ms. Clay's reinstatement to her former position on the ground that she had been unlawfully terminated without cause. The case, as we see it, turns on whether Ms. Clay was in the Excepted Service, from which termination without cause is permitted, or in the Career Service, from which such termination is proscribed.²

Ms. Clay began her career with the Council on March 19, 1972 as an Administrative Aide (GS-7).³ During the years that followed, she received several promotions and grade increases. All of the "Form 1" personnel action forms appointing her to a new position expressly stated that the position was in the Excepted Service. The "remarks" section of each personnel action form contained the following statement:

As a member of the D.C. Council Staff, Appointee serves at the will of the appointing authority and this appointment is subject to termination at the pleasure of the Council.

Ms. Clay received her final grade increase on January 29, 1978. On that date, she was promoted from Legislative Services Specialist(GS-11) to the position of Director of Legislative Services. Ms. Clay's formal job title in her new position remained Legislative Services Specialist, but her new grade was GS-13. On April 5, 1984, Ms. Clay's title was changed to Supervisory Legislative Services Specialist (DS-13), but her duties remained the same. Once again, the Form 1 for Ms. Clay's new position reiterated that her employment could be terminated at the pleasure of the Council.

On May 3, 1984, Ms. Clay filed a grievance under the Council's adverse action and grievance procedures, which are published at 29 D.C. Reg. 874 (1982). She asserted that the April 5, 1984 Form 1 improperly effected a change in her status from the Career Service to the Excepted Service. She argued that she had become a member of the Career Service on January 2, 1980, the effective date of the Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-601 et seq. (1992).⁴ She relied on D.C. Code § 1-602.4(c), which provides, in pertinent part, as follows:

On January 1, 1980, all persons employed by the District of Columbia government, including those persons employed by the District of Columbia government on the date that this chapter becomes effective as provided in § 1-637.1, shall automatically transfer into the appropriate personnel system as established pursuant to subchapters VIII [Career Service] and IX Educational Service] of this chapter or § 1-610.4 [special appointments] or 1-610.9 [attorneys]. The classification of and compensation for the position assumed upon transfer, and the rights and benefits inhering in such position, shall be at least equal to the classification, compensation, rights and benefits associated with the position from which said employee is transferred. The rights and benefits protected under this subsection shall be only those applicable to said employees under the provisions of personnel laws and rules and regulations in force on December 31, 1979: Provided, however, that no employee covered under the provisions of this subsection shall be reduced in pay except as provided in subchapter XXV of this chapter.

Ms. Clay argued that all excepted District employees who were not educational service employees, special appointees, or attorneys automatically became career employees on January 1, 1980.

On January 9, 1987, after protracted proceedings, the Chairman of the Council, David A. Clarke, issued a final decision denying Ms. Clay's grievance.⁵ The Chairman concluded that Ms. Clay's position had been correctly classified as falling within the Excepted Service. The Chairman relied, in substantial part, on two sections of the CMPA which he viewed as relevant to Ms. Clay's grievance. The first of these provisions, D.C. Code § 1-610.3(a)(3), reads as follows:

(a) Under qualifications issued pursuant to § 1-610.1, each appropriate personnel authority may appoint persons to the Excepted Service as follows:

(3) All employees of the Council of the District of Columbia, except those permanent technical and clerical employees appointed by the Secretary or General Counsel. . . .

(Emphasis added). The second statute cited by Mr. Clarke, D.C. Code § 1-610.7, provides, in pertinent part:

Persons holding appointments in the District of Columbia government, paid fromappropriations made to the Council of the District of Columbia and classified as a GS-10 or less under § 5332 of Title 5 of the United States Code and whose position would not be in the Excepted Service under the provisions of this subchapter on January 1, 1980, shall be appointed to the Career Service created in subchapter VIII of this chapter, if such incumbent is found to possess the minimal qualifications for the position to which he or she is appointed.

(Emphasis added). The Chairman construed these provisions to mean that employees who were GS-11 and above (including Ms. Clay) remained in the Excepted Service following the effective date of the CMPA.⁶

On January 27, 1987, Ms. Clay appealed to the OEA from Chairman Clarke's decision. On November 26, 1990, while her OEA appeal was pending, Ms. Clay received a notice of separation effective December 31, 1990. She was advised that she was being terminated "as a result of the change within the Council of its elected Chairman." On January 14, 1991, Ms. Clay moved to amend her petition to the OEA to include a challenge to the authority of the Council to discharge her without cause. The OEA granted Ms. Clay's motion, and the legality of her termination is therefore properly before us.

On July 9, 1992, an OEA Administrative Judge issued an "initial decision" in favor of Ms. Clay. He concluded that, on January 1, 1980, Ms. Clay was automatically transferred from the Excepted Service to the Career Service by virtue of D.C. Code Section 1-602.4(c). The Administrative Judge found that Ms. Clay had occupied several "Excepted" positions under the federal classification system, but nevertheless concluded that

the CMPA created a personnel system for D.C. Government employees separate and distinct from the federal civil service system of which the District had been a part. Therefore, by operation of law, on January 1, 1980 all employees of the D.C. government automatically transferred into either the Career Service, the Educational Service, or those positions established pursuant to [Sections] 1-610.4 and 1-610.9. See D.C. Code Ann. § 1-602.4(c) (1987). This automatic transfer is further evidenced by the provisions of D.C. Code Ann. § 1-608.1(a) (1987) and DCOP Rule § 201.1.

In the instant matter, it is clear that Employee did not transfer into the Educational Service or into any of the "Special Appointments" set forth in [Section] 1-610.4 of the CODE [sic]. Further, since Employee is not an attorney, she did not transfer pursuant to [Section] 1-610.9 of the Code. Thus, I conclude that on January 1, 1980, Employee automatically became a member of the Career Service.

On June 18, 1993, the OEA issued a final decision denying the Council's petition for review. The OEA, agreeing in large measure with the Administrative Judge, accepted Ms. Clay's interpretation of Section 1-602.4(c). The OEA also held that the other provisions of the CMPA on which Chairman Clarke had relied — Sections 1-610.7 and 610.3(a)(3) — did not conclusively support the Council's position.

On June 23, 1995, a judge of the Superior Court upheld the OEA's decision in a brief order which reads, in pertinent part, as follows:

While the court finds that the relevant provisions of the Comprehensive Merit Personnel Act, including D.C. Code §§ 1-602.4(a), 1-610.3, and 1-610.7, are not models of clarity, the court cannot conclude that the Office of Employee Appeals' Opinion and Order of June 18, 1993 was 'clearly erroneous as a matter of law.' See Super. Ct. Agency Review Rule 1(g) (1995).

The Council filed a timely appeal.

II. LEGAL DISCUSSION

A. The Standard of Review.

The facts in this case are undisputed, and the question before us is one of law.⁷ As we recently reiterated in Harris v. Office of Worker's Compensation, 660 A.2d 404 (D.C. 1995),

[o]ur review of the agency's legal rulings is de novo, for "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and the judiciary is the final authority on issues of statutory construction. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2782 n. 9, 81 L.Ed.2d 694 (1984).

Id. at 407. We accord considerable weight to the interpretation of a statute by the agency responsible for administering it, id. (citations omitted), but such deference is appropriate only "as long as that interpretation is reasonable and not plainly wrong or inconsistent with [the] legislative...