District of Columbia v. King
| Decision Date | 25 January 2001 |
| Docket Number | No. 98-CV-1556.,98-CV-1556. |
| Citation | 766 A.2d 38 |
| Parties | DISTRICT OF COLUMBIA, Petitioner, v. Robert L. KING, Respondent. |
| Court | D.C. Court of Appeals |
Sheila Kaplan, Assistant Corporation Counsel, with whom John M. Ferren, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for petitioner.
Mark L. Shaffer, Washington, for respondent.
Before SCHWELB, REID and GLICKMAN, Associate Judges.
Beginning around 1991, when the District of Columbia was in the midst of a fiscal crisis, the Council of the District of Columbia enacted a series of emergency and temporary acts authorizing a reduction in the District's workforce ("RIF").1
The emergency and temporary legislation added a new section to the District of Columbia Government Comprehensive Merit Personnel Act of 1978 ("the CMPA"), § 2405, which authorized "the abolishment of excess positions."2 Under § 2405(a) of the CMPA, "each agency head [was] authorized, within the agency head's discretion, to identify positions, outside existing collective bargaining units, and at grades 11 and above of the District Service Schedule or at equivalent levels of other salary or pay schedules, for abolishment as excess positions," subject to the Mayor's approval, upon recommendation of an Executive Review Committee. Section 2405(d) of the CMPA also specified that:
An employee affected by the abolishment of an excess position pursuant to this section who, but for this section would be entitled to compete for retention, shall be entitled to 1 round of competition pursuant to Chapter 24 of the District of Columbia Personnel Manual, which shall be limited to positions in the employee's competitive level and shall not include positions in existing collective bargaining units.
Mr. King challenged his November 1991 removal from his position as a special assistant to the Director of the Department of Public and Assisted Housing ("the DPAH"). The Chief Administrative Law Judge, Judge Gregory Lattimer, concluded that Mr. King was improperly terminated under the RIF action. The OEA reversed that determination and Mr. King appealed to the Superior Court of the District of Columbia, which reversed the OEA's decision. The District of Columbia appealed to this court. We affirm the judgment of the Superior Court, which restored the November 23, 1993 decision of Judge Lattimer and ordered that Mr. King be given the relief provided in that decision.
The record on review shows the following pertinent factual and procedural background. In 1988/89, Mr. King, who had been a District career employee since 1983, was detailed to the drug policy control office in the DPAH Director's office to help launch a program called, "Not on my Block," designed to eliminate drugs in the District on a block-by-block basis. Apparently as part of the plans for this initiative and a proposed application for federal funding, a position vacancy announcement was issued on June 6, 1990, with a closing date of June 22, 1990, for the position of Special Assistant, DS-301-14, DPAH, Office of the Director. Mr. King applied for the position whose official job description specified, in part:
Furthermore, the position officially required, in part, the following knowledge and experience:
The vacancy announcement for the position identified knowledge of federal and local drug enforcement laws as a selective factor.
Despite the position description for his special assistant position, however, Mr. King maintained that he never really served in the drug position because DPAH's anti-drug initiative was not accepted by the Federal Department of Housing and Urban Development ("HUD"). When the HUD funding did not materialize, and after administrative changes due to the arrival of a new mayor, Mr. King was "reassigned [on January 14, 1991 to the Housing Management Administration] and given the job of being responsible for the trash contracts and the fire contract for the [DPAH]."
On October 1, 1991, Mr. King was notified by the DPAH that his position was deemed "excess" under the RIF law, and that his employment would be terminated, effective November 8, 1991. On November 21, 1991, Mr. King filed an appeal with the TAP claiming that he was improperly terminated from his employment due to DPAH's failure to properly place his position in a competitive level with other Special Assistants to the Director. He maintained that the unique knowledge of drug laws required by his written position description should not have excluded him from other similar special assistant jobs whose position descriptions did not require specific knowledge of drugs. He also asserted that DPAH erred when they denied him his entitled "1 round of competition," and subsequently terminated his employment without allowing him to compete for other special assistant positions within the DPAH.
Administrative Judge Robin J. Nash, of the TAP, initially heard testimony in this matter on June 3, 1992, July 6, 1992, and July 29, 1992, but subsequently was replaced by Chief Administrative Judge Gregory Lattimer, without objection from the parties. During the initial hearing before the TAP, Beatrice Smith, Assistant Director of Personnel, District of Columbia Personnel Office ("the DCOP"), testified on behalf of the District. Karen Qawiyy, who was formerly employed with the DPAH as the chief of the Office of Administration and Management, offered testimony for Mr. King who also testified on his own behalf.4
Ms. Smith, who testified as an expert in the field of personnel management and classifications in the District government, maintained that Mr. King's competitive level was properly constructed and explained that when positions are eliminated in a RIF, job descriptions and categorized competitive levels are considered based upon the compatibility of the positions. Therefore, the competitive levels should consist of "all positions in the same pay system . . . series and same grade level with similar duties and responsibilities and qualifications, requirements with the same working conditions except union positions. . . ." Although there were other jobs that had position descriptions that were similar to Mr. King's, Ms. Smith stated that there were no other positions that were established for the singular purpose of eliminating drugs in assisted housing. On cross-examination however, Ms. Smith indicated that her opinions were solely derived from her review of documents, and that she did not contact DPAH management to confirm the factual basis for her analysis.
Ms. Qawiyy worked for DPAH from February 1988 until February 1996 and coordinated all personnel actions with the DCOP. Furthermore, she played a direct role in creating job descriptions for all of DPAH's positions, identifying functions, staffing and actual job descriptions. She stated that the special assistant positions were designed to be interchangeable to facilitate the movement of people to different parts of the DPAH. She declared that the drug knowledge requirement in Mr. King's position description did not distinguish his job from other positions because the reference to drugs did not delineate the function or duty of the position. Ms. Qawiyy stated that neither she, nor the Director of DPAH at the time, ever approved the selective placement factor of "knowledge of District drug enforcement law[,] regulations and guidelines," with respect to Mr. King's position.
On November 23, 1993, Judge Lattimer filed an initial decision in Mr. King's case. Earlier, on September 13, 1993, Judge Lattimer had granted Mr. King's motion to "limit [Ms. Smith's] testimony to opinions based upon evidence of record and personal knowledge." Judge Lattimer decided that Ms. Smith's "testimony[,] which was factual in nature and based upon [her] review of documents not in evidence, consultation with individuals who did not testify, or hearsay, was stricken from the record. . . [even] though such testimony formed a great deal of [her] testimony." Judge Lattimer credited Ms. Qawiyy's testimony but discredited Ms. Smith's testimony. As he put it:
I find it beyond astonishing that the Government's expert witness [Ms. Smith] never consulted with anyone from DPAH prior to testifying that the establishment...
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