Dist. of Columbia Metro. Police Dep't v. Dist. of Columbia Pub. Emp. Relations Bd., 19-CV-1115

Citation19-CV-1115
Case DateSeptember 15, 2022
CourtCourt of Appeals of Columbia District

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.

No. 19-CV-1115

Court of Appeals of The District of Columbia

September 15, 2022


Argued February 8, 2022

Appeal from the Superior Court of the District of Columbia (CAP-4340-18) (Hon. John M. Campbell, Trial Judge)

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,

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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...

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