Dist. of Columbia Metro. Police Dep't v. Dist. of Columbia Office of Emp. Appeals, 12–CV–1403.

• Decision Date: 22 May 2014
• Docket Number: No. 12–CV–1403.,12–CV–1403.
• Parties: DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS and James O'Boyle, Appellees.
• Court: D.C. Court of Appeals

88 A.3d 724

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant,

v.DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS and James O'Boyle, Appellees.

No. 12–CV–1403.

District of Columbia Court of Appeals.

Argued Jan. 28, 2014.

Decided April 10, 2014.

As Amended May 22, 2014.¹

Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellant.

Robert E. Deso, Washington, DC, for appellee James O'Boyle.

Lasheka Brown Bassey filed a statement in lieu of brief for appellee District of Columbia Office of Employee Appeals.

Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

PRYOR, Senior Judge:

Appellant, District of Columbia Metropolitan Police Department (MPD), appeals the decision of the D.C. Superior Court affirming the District of Columbia Office of Employee Appeals (OEA) order on remand from the OEA Board that reversed appellee James O'Boyle's termination from MPD and reduced his four-month suspension without pay to twenty days. On appeal, appellant first argues that the OEA erred as a matter of law when it held that the “indefinite suspension without pay” and subsequent termination of appellee constituted unlawful “double punishment” for his driving while intoxicated (“DWI”) arrest and conviction. Second, appellant argues that the OEA abused its discretion when it found that appellant had not legitimately distinguished appellee from other MPD members arrested and convicted of DWI or driving under the influence of alcohol (DUI) who had not been terminated. We reverse and remand for further proceedings consistent with this opinion.

I.

On April 5, 2004, while off-duty, appellee was driving his personal vehicle when he struck another motorist in Virginia and was arrested for driving while intoxicated (“DWI”), with a blood-alcohol content of .27—more than three times the legal limit. The day after the arrest, appellee entered voluntary leave-without-pay status with MPD to pursue treatment for his alcohol addiction, which consisted of a five-day, in-hospital program, and twenty-seven days residential treatment program.

On July 21, 2004, appellee was tried and convicted of DWI and sentenced to 180 days in jail with 170 days suspended, his driver's license was suspended for a year, and he was fined $500. Appellee was incarcerated for ten days. On August 11, 2004, MPD served appellee with advance notice of its intent to change his status from voluntary leave without pay to “Indefinite Suspension Without Pay pending the final outcome of this case.” Appellee appealed to MPD, but his appeal was denied on August 30, 2004, and the suspension went into effect on September 14, 2004. MPD's final notice of suspension advised appellee that he could appeal the suspension to the Chief of Police and also pursue arbitration or appeal to OEA. The record does not reveal that appellee pursued these options.

On September 22, 2004, MPD completed its investigation of appellee, concluding that he should be cited for adverse action, and on November 8, 2004, it served appellee with advance notice of termination. Appellee was advised that he could request a hearing, but he did not request a hearing, offer any mitigating evidence, or contest the facts of MPD's investigative report. On December 3, 2004, MPD concluded, based on the evidence in its report, that appellee's conduct warranted his termination.

On December 15, 2004, appellee appealed his termination to the Chief of Police, arguing that discipline following his suspension without pay amounted to an impermissible second disciplinary action for the same conduct and that his discipline was disproportionate to that imposed on other similarly situated MPD officers. The Chief of Police denied the appeal and set appellee's discharge to be effective January 8, 2005. On February 1, 2005, appellee appealed his termination to the OEA, reiterating his arguments as stated earlier. On October 17, 2006, the OEA upheld the termination, finding that the suspension was only an interim measure, not disciplinary, and that appellee was not similarly situated to the other MPD employees convicted of DUI or DWI.

On appeal, the OEA Board reversed and remanded the OEA's decision, finding that “suspension of an Employee without pay is a disciplinary adverse action,” and that appellee's “subsequent termination therefore constitutes a double punishment for the same alleged misconduct.” The Board also found that appellee's termination was unreasonably disproportionate to the penalties imposed on other MPD employees convicted of DUI or DWI. On remand, the OEA reduced appellee's termination to a thirty-day suspension, with ten days held in abeyance. Appellant appealed the decision of the OEA to the D.C. Superior Court, which affirmed the OEA's decision.

II.

On appeal from the Superior Court, this court reviews decisions of OEA as though the appeal has been taken directly to this court. Brown v. District of Columbia Dep't of Corr., 993 A.2d 529, 532 (D.C.2010). “When reviewing an [ ] OEA decision, we ... ‘must affirm the OEA's decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law.’ ” Dupree v. District of Columbia Office of Emp. Appeals, 36 A.3d 826, 830 (D.C.2011) (quoting Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902, 905 n. 4 (D.C.2006)). “[W]e will only reverse where the OEA's action was arbitrary, capricious, or an abuse of discretion.” Jahr v. District of Columbia Office of Emp. Appeals, 19 A.3d 334, 340 (D.C.2011) (internal quotations omitted). In turn, the OEA's review of an agency decision “is limited to simply ensur[ing] that managerial discretion has been legitimately invoked and properly exercised.” Id. (internal quotation omitted). The OEA may not “substitute its judgment for that of the agency in deciding whether a particular penalty is appropriate.” Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C.1985) (quotation omitted). It may overturn the agency's decision only if it finds that the agency “failed to weigh the relevant factors, or that the agency's judgment clearly exceeded the limits of reasonableness.” Id.

III.

The primary issue in this appeal stems from the order of the OEA which reversed a termination order relating to appellee and reinstated him as a member of the police force. As stated, appellant contends that the OEA erred on two grounds when it vacated the termination order. On the other hand, appellee relies upon the OEA's ruling that his unpaid suspension was an adverse disciplinary action and therefore appellant's subsequent termination of appellee constituted unlawful “double punishment” for his conviction of driving a vehicle while intoxicated. Appellee argues that appellant lost its ability to exercise its statutory authority to impose an interim suspension because it failed to cite the pertinent statutory provision as the basis for its actions.

(A)

Before suspending an employee without pay, MPD must provide the employee with written notice of the proposed suspension. D.C.Code § 1–616.54(c). Notice may be accomplished in person, D.C.Code § 1–616.54(c), by “leaving a copy at the employee's home with some person of suitable age and discretion who is present,” DCMR 6–B1620.8 (2013), or by reading the notice to the employee over the phone prior to actual delivery of the written notice. D.C.Code § 1–616.54(c). Written notice must inform the employee of the following: “(1) The reasons for the proposed enforced leave; (2) The beginning and ending dates of administrative leave; (3) The beginning date of the proposed enforced leave; (4) His or her right to respond, orally or in writing, or both, to the notice; and (5) His or her right to be represented by an attorney or other representative.” D.C.Code § 1–616.54(d). Prior to the suspension, MPD must initially place the employee “on administrative leave for a period of 5 work days, followed by enforced annual leave or, if no annual leave is available, leave without pay.” D.C.Code § 1–616.54(b). MPD is authorized to continue the employee's suspension until “action ... [is] taken as a result of the event that caused this administrative [suspension] ... or a determination is made that no such action ... will be taken.” D.C.Code § 1–616.54(b).

Appellant served appellee with written notice of the proposed interim suspension without pay, “pending resolution of the [ ] administrative action against [him].” The notice states that the serving officer left the notice at appellee's door on August 17, 2004. The record is unclear whether the notice was posted to the door, or left with someone of suitable age. In any case, it is clear that appellee received the notice because he made a timely appeal of the proposed suspension on August 26, 2004.

The notice explained that suspension was being proposed for “conduct unbecoming an officer,” because “on Wednesday, July 21, 2004, in Fairfax County, VA, Sergeant James O'Boyle was convicted of driving while intoxicated [,] ... was sentenced to 180 days in jail with 170 days suspended[,] ... was fined $500.00 and has a 12–month suspended license.” The notice also stated that the suspension would not become effective until fifteen days after receipt of the notice, and that appellee had a right to respond to the proposed action and have a representative of his choosing. Appellee's suspension then went into effect on September 14, 2004.

When appellee was served with the suspension notice, he was already on voluntary leave without pay, which he had taken so that he could be available for his DWI trial, to be incarcerated for the DWI conviction, and undergo two alcohol treatment programs. On appeal, appellant stated that it first placed appellee on leave without pay because presumably he had already exhausted his administrative...