Kegley v. District of Columbia

• Decision Date: 16 February 1982
• Docket Number: No. 80-199.,80-199.
• Citation: 440 A.2d 1013
• Parties: James W. KEGLEY, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

440 A.2d 1013

James W. KEGLEY, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 80-199.

District of Columbia Court of Appeals.

Submitted November 4, 1981.

Decided February 16, 1982.

COPYRIGHT MATERIAL OMITTED

Charles H. Schulze and Leonard C. Pederson, Jr., Washington, D. C., were on brief for appellant.

Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Philip T. VanZile III, Asst. Corp. Counsel, Washington, D. C., were on brief for appellees.

Before KELLY, FERREN and PRYOR, Associate Judges.

KELLY, Associate Judge:

The allegations in this appeal of a review by the Superior Court of a Metropolitan Police Department Police Trial Board (Trial Board) decision dismissing appellant from the police force are that (1) the trial court erred in sustaining the Trial Board's finding that appellant impermissibly left his police service revolver in an automobile; (2) appellant was denied equal protection of the laws because he received an unusual sanction, dismissal; and (3) appellant was denied due process of law when the trial court substituted its discretion for that of the Trial Board. We reverse, holding that an incorrect standard of review of the Trial Board's decision was applied, and that there was substantial evidence on the record to support each of the Trial Board's findings.

I

Appellant James W. Kegley was appointed to the Metropolitan Police Department (MPD) on January 3, 1972. Before joining the force, appellant was given a thorough medical examination. At the time, he told the examining physician that in 1962, in a football accident, he had sustained an injury to his left knee which had required surgery. The examining physician requested a written medical report of the knee operation. The report submitted by appellant showed that he had recovered sufficiently from the knee injury to enable him to pass the required departmental physical examination and be admitted to duty.

On May 1, 1974, while performing his police duties, appellant jumped from a ledge and reinjured his left knee. He went to the Police and Fire Clinic for treatment and was treated for a sprain, an injury which normally heals quickly. This injury, which aggravated appellant's earlier knee problem, required another knee operation in June of 1974.

Appellant was soon able to return to work on "light duty" status. In April of 1975, he returned to full duty status as an officer; however, on November 10, 1975, he was unable to continue working because of a flare-up of his knee condition which caused the knee to lock and swell. On November 25, appellant was placed on chargeable sick leave; and upon exhaustion of his accrued sick leave, he was placed on leave without pay. He thus had no source of income from the MPD.

Appellant returned to the Police and Fire Clinic to have his knee reexamined on January 9, 1976 and again on February 6, 1976, when he requested retirement for disability from the MPD. According to normal procedure, appellant was referred to a specialist and thereafter considered for retirement. His orthopedic surgeon, Dr. Stanley Lavine, found that appellant had a permanent partial disability. He recommended that appellant not be returned to full, active duty; but he did believe that appellant could perform light duty.

While waiting to be retired for disability, appellant, on April 6, 1976, began work for the William F. Klingensmith Company (Klingensmith).¹ His job, listed on the company payroll records as "laborer," required him to lift cinderblocks and bricks, mix mortar, load mortar into wheelbarrows, roll the wheelbarrows full of mortar up an incline to an elevator, put the load onto the elevator and send it up the elevator. The MPD did not know that appellant was working for Klingensmith. Appellant admitted subsequently that he failed to request permission for such employment, in violation of an MPD directive, MPD General Order Series 201, Number 17, Part I-C-1, because he knew that such a request would be denied.²

During the time that the appellant worked for Klingensmith, the Board of Police and Fire Surgeons was processing his request for retirement. On July 14, 1976, it issued a report to the Police and Firemen's Retirement and Relief Board (Retirement Board), which stated that it was unable to find appellant permanently disabled for further police duty and so could make no specific recommendation concerning whether he should be retired from the MPD by reason of his physical impairment.

Meanwhile, in early April 1976, the MPD's Internal Affairs Division was alerted to the fact that appellant was working for Klingensmith and was living at an address other than his address of record.³ Several investigators looked into the allegations. They made observations of appellant's activities on April 19, 20, 23, 30 and May 3, 18 and 26, 1976. The investigation revealed that appellant was not living at his address of record in Hyattsville, Maryland, but instead, was living with his sister in Lanham, Maryland. Appellant later admitted that at that time he had been living with his sister for five to six months because he and his wife had separated, but he maintained that he frequently went to his old address. The investigation also confirmed that appellant was employed as a laborer by Klingensmith. The investigators made videotapes of appellant's activities at work which showed appellant engaged in manual labor.

On the morning of May 20, 1976, appellant responded to a request by an administrative officer, Marguerite Anastasi, to report to the Police and Fire Clinic to supply medical information needed to process his retirement request. When he appeared, Ms. Anastasi asked him whether he was still disabled and appellant replied that he thought so. To obtain information for a superior officer, she also asked appellant whether he had worked between November 10, 1975 and the present date. Appellant responded that he had not worked.

At this time, appellant was informed that he had been the subject of an investigation. Officers from the Internal Affairs Division then interviewed appellant, questioning him about his employment and change of address. Another interview was held on May 27, 1976. Appellant told the officers that he was employed as an elevator operator because it didn't "require any work on his knee" and that he had failed to report his address change.

At the conclusion of the second interview, appellant's police powers were revoked, and he was asked for his police service revolver. Appellant did not have the revolver on his person. He first stated that the weapon was at his sister's house but then remembered that he had left it in the trunk of his cousin's automobile.⁴

At this time appellant terminated his employment with Klingensmith, stating later that he did so because he "didn't want to . . . jeopardize [his] retirement situation."

On August 26, 1976, the Retirement Board held a hearing on appellant's request for retirement for disability. After receiving documentary and testimonial evidence, the Retirement Board found that the serious condition of appellant's knee "was basically the same condition that it was on the date of his appointment" (and thus not service-related); that his claims of disability were called into question by the results of the investigation conducted by the Internal Affairs Division; and that appellant himself had expressed a strong desire at the hearing to work rather than to retire. As a result, the Board denied appellant's request for retirement, concluding that he was "not permanently disabled for useful and efficient service in the grade or position last occupied by him as a member of the Metropolitan Police Department of the District of Columbia."

Subsequently, appellant was charged with violations of six MPD regulations: malingering, engaging in outside employment, failing to submit a form requesting outside employment, willfully and knowingly making an untruthful statement pertaining to his official duties, leaving his service revolver in an automobile and failing to report his change of address.⁵ He was brought before the Trial Board on November 2, 1976. After a lengthy hearing, the Trial Board found all six charges were proved and recommended appellant's dismissal.

The decision of the Trial Board was appealed to the Mayor, but the appeal was denied on December 29, 1977. Appellant's termination from duty became effective on January 28, 1978.

On June 23, 1978, appellant filed suit in the Superior Court against the District of Columbia, challenging the Trial Board's decision.⁶ The District of Columbia moved to dismiss the complaint, or in the alternative, for summary judgment. The court heard the case on January 7, 1980.

At this hearing, the court took evidence in addition to that which had previously been presented to the Trial Board and, at the close of the evidence, expressed doubt about the malingering charge because, in its view, appellant was enthusiastic about working as a police officer but the police medical personnel "would not certify that he could do police work." It also felt that appellant's failure to seek permission to undertake outside employment might be justified in light of his belief that such a request would be denied. The court said, however, that appellant may have violated regulations with respect to his service revolver and change of address. The court noted that at the time of the hearing it had not reviewed the entire administrative record and therefore would take the case under advisement.

On February 8, 1980, the court issued its decision:

The court dismisses the [appellant's] case, finding that the Trial Board's order was supported by the evidence in that the [appellant] violated a police regulation regarding his weapon.

It also found that there was not substantial evidence on the record to support the other five charges. This appeal followed.

A disciplinary proceeding before the Trial Board...