D.C. Metro. Police Dep't v. D.C. Pub. Emp. Relations Bd.

• Decision Date: 04 August 2016
• Docket Number: No. 14–CV–846.,14–CV–846.
• Citation: 144 A.3d 14
• Parties: 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.
• Court: D.C. Court of Appeals

144 A.3d 14

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant,

v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, Appellee,andFraternal Order of Police Metropolitan Police Department Labor Committee, Intervenor.

No. 14–CV–846.

District of Columbia Court of Appeals.

Argued Jan. 15, 2016.

Decided Aug. 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, Washington, DC, with whom Bruce A. Fredrickson and Cedar P. Carlton were on the brief, for appellee.

Marc L. Wilhite, Washington, DC, for intervenor.

Before FISHER and BECKWITH, Associate Judges, and STEADMAN, Senior Judge.

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.

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

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.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.

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 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.

MPD's challenge to the PERES'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 “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, 94 S.Ct. 2474, 41 L.Ed.2d 290 (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:

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...