DISTRICT OF COLUMBIA POLICE v. PERRY

• Decision Date: 17 March 1994
• Docket Number: No. 91-CV-528,91-CV-528
• Citation: 638 A.2d 1138
• Parties: DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant, v. Keith PERRY, et al., Appellees.
• Court: D.C. Court of Appeals

638 A.2d 1138

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant, v. KeithPERRY, et al., Appellees.

No. 91-CV-528.

District of Columbia Court of Appeals.

Argued May 28, 1993.

Decided March 17, 1994.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, HENRY H. KENNEDY, JR., J.

Edward E. Schwab, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for appellant.

Robert E. Deso, Washington, DC, for appellees.

Before STEADMAN, FARRELL and KING, Associate Judges.

STEADMAN, Associate Judge:

In this appeal, we are called upon to review a decision of the Office of Employee Appeals ("OEA") relating to the interrelation of two statutes both potentially applicable to disciplinary actions taken against police officers as a result of citizen complaints.

The Comprehensive Merit Personnel Act ("CMPA"), D.C.Code §§ 1-601.1 to -637.2 (1992 & 1993 Supp.), is a broad-ranging statute which sets forth a comprehensive system of personnel management for the government of the District of Columbia. With certain enumerated exceptions, it applies to all employees of the District, including police officers. D.C.Code § 1-602.1(a) (1992). The CMPA and its implementing regulations guarantee certain rights to an employee before the employee may be subject to job discipline. Included among these guarantees are the right to notification of the charge against the employee and the proposed disciplinary action, and the right to a certain period of time in which to respond to such charge and proposed action.

The Civilian Complaint Review Board Act ("CCRB Act"), D.C.Code §§ 4-901 to -911 (1988 & 1993 Supp.), enacted subsequent to the enactment of the CMPA, provides a unique system for the discipline of police officers for conduct brought to the attention of the police department through citizens' complaints. The Civilian Complaint Review Board ("CCRB") investigates the complaint and makes a recommendation to the Chief of Police. While the CCRB Act provides the officer with the opportunity to respond to the initial allegations, it does not include a mechanism whereby the officer can respond to the proposed disciplinary action.

Before us in a broad sense is the issue whether, and to what degree, the provisions of the CCRB Act supersede the provisions of the CMPA. More particularly in dispute is whether the provisions of the CMPA that provide for notice of and an opportunity to respond to the proposed disciplinary action are superseded by the CCRB Act. We affirm the decision of the Office of Employee Appeals, as herein interpreted, reconciling the provisions of those two acts.

I.

Before discussing the legal issues involved in this appeal, we recount the statutory provisions involved as they existed at the time of these proceedings, as well as the litigation history that brought these issues before this court.

A. CMPA

The District of Columbia Council enacted the CMPA in 1979¹ to "assure that the District of Columbia government shall have a modern flexible system of public personnel administration." D.C.Code § 1-601.2(a) (1992). The CMPA provides that an employee within the scope of the CMPA shall have adverse action taken against him or her only for cause² and only after certain procedures are first completed. An adverse action is defined as a suspension of more than thirty days, a reduction in rank or pay, or a removal from employment. Id. § 1-617.1(b). The statute authorizes the Mayor to issue "rules and regulations establishing internal agency corrective, rather than punitive, measures. . . . [and to provide for] reprimands and for suspensions for 30 days or less." Id. § 1-617.1(a). Pursuant to this authorization, the Office of Personnel issued extensive regulations. See Personnel Reg. §§ 1600.1-1608.6, 30 D.C.Reg. 5874 (1983).³

Corrective⁴ or adverse actions must be initiated within forty-five days (excluding Saturdays, Sundays, and holidays) from "the date the agency knew or should have known" of the act or occurrence allegedly constituting cause. D.C.Code § 1-617.1(b-1)(1). When an agency proposes a corrective action, the employee must be given written notice stating "any and all causes for which the employee is charged, and the reasons, specifically and in detail, for the proposed action; and final action shall not become effective during that period." Personnel Reg. § 1604.7. The employee is entitled to at least ten days in which to answer the notice of proposed action, either orally or in writing or both, and to furnish affidavits or other documentary evidence in support of such answer. Id. §§ 1604.12, 1604.14.

The proposed action and the employee's answer, if there is one, must be reviewed by the disinterested designee of the agency head prior to final action. Id. § 1604.16.⁵ "Examination of witnesses, a trial, or a hearing is not required, but may be provided at the discretion of the individual or individuals who are responsible for handling the adverse actions." D.C.Code § 1-617.3(a)(2) (1992). The deciding official may sustain the penalty proposed, reduce it, or dismiss the action with or without prejudice, but may not increase the proposed penalty. Personnel Reg. § 1604.35. The decision of the deciding official shall be rendered no more than forty-five days from the date of delivery of the notice of proposed action,⁶ D.C.Code § 1-617.3(a)(1)(D); Personnel Reg. § 1604.38, and "shall be the final agency decision for thepurpose of appeal." Personnel Reg. § 1604.33. An appeal from the final agency decision may be made to the OEA. D.C.Code § 1-617.3(b).⁷

B. CCRB Act

The District of Columbia Council adopted the CCRB Act in 1980, effective October 1, 1981, in response to legislative findings that the Metropolitan Police Department ("MPD") had not adequately responded to citizens' complaints against police officers. The CCRB Act provides a mechanism for public participation in the review of allegations of misconduct by police officers. The CCRB Act established a seven-member board⁸ and gave the board exclusive jurisdiction over citizens' complaints against police officers in three areas: "(1) Police harassment; (2) Excessive use of force; [and] (3) Use of language likely to demean the inherent dignity of any person to whom it was directed and to trigger disrespect for law-enforcement officers." D.C.Code § 4-901(c), -903(a) (1988).⁹ The MPD and the Mayor are "prohibited from maintaining any system other than that set forth" in the CCRB Act for the processing of civilian complaints in these three areas. D.C.Code § 4-909(c) (1988).

Within thirty days of the submission of the complaint the CCRB is to set the time and place for a hearing, unless the complaint is frivolous on its face. D.C.Code § 4-905(a) (1988); 6A DCMR § 2108.1 (1988).¹⁰ The accused officer must be given "sufficient opportunity to respond to allegations in [the] complaint," D.C.Code § 4-905(a), and must be given notice of the hearing at least fifteen days prior to the commencement of the hearing. 6A DCMR § 2109.1. The Executive Director of the CCRB shall, at the direction of the CCRB, conduct an investigation of the complaint, including the interviewing of witnesses and police personnel, and a written report explaining the results of such investigation shall be filed with the CCRB and served on every party before the hearing. D.C.Code § 4-905(a). The decision of the CCRB must be based on the exclusive record developed in the investigation and at the hearing. Id. § 4-905(c).¹¹

The CCRB must determine in each case whether the complaint "should be sustained,dismissed, or found to evidence misconduct not directly related to the immediate complaint but within the authority of the [CCRB]." Id. § 4-902(a) (1988).¹² "The [CCRB] shall be empowered to recommend [in writing] personnel actions against officers involved in misconduct. . . . [and] shall recommend actions to be taken by the Chief" of the MPD. Id. § 4-902(a), (b).

The Chief of the MPD is required to act within thirty days of the CCRB recommendation, and a "[f]ailure to act within 30 days shall be deemed final action by the Chief of the [MPD] ratifying the findings and recommendations of the [CCRB]." Id. § 4-903(c). Within thirty days after receiving the CCRB's recommendation, the Chief may "(1) [i]mplement or otherwise issue a final order with respect to such recommendations; or (2) refer the matter to a police trial board." Id. § 4-903(c). If the Chief disagrees with the CCRB's recommendation, the Chief's written recommendation and reason therefor and the CCRB's findings and recommendation shall be submitted to the Mayor, who then has thirty days in which to either uphold the recommendation of the Chief, impose the recommendation of the CCRB, or order a compromise between the two. Id. § 4-902(c) (1988). If the Mayor fails to act within thirty days, the recommendation of the Chief becomes final. Id. If the Chief decides to implement the CCRB's decision or to refer the matter to a trial board, that decision is final, id. §§ 4-902(c), -903(c), "[p]rovided, that, all rights provided by [the CMPA] as amended by this chapter, including the right to appeal before the [OEA] and the right to a trial board hearing prior to dismissal[,] are maintained." Id. § 4-902(c) (1993 Supp.). A final decision, other than referral to a police trial board, by the Chief or the Mayor may be appealed to the OEA.¹³ Id. § 4-903(c).

C. Procedural Background

Pursuant to the CCRB Act, citizens' complaints were filed with the CCRB in the years 1982-1986¹⁴ against fourteen members of the MPD.¹⁵ The CCRB conducted an investigation and held a full hearing in each case and then issued written decisions finding that each police officer had engaged in conduct prohibited by the CCRB Act and recommending that the MPD impose minor discipline in each of the cases, ranging from a reprimand to a suspension of ten days. In eight of the fourteen ca...