Metropolitan Police Dept. v. Baker
|29 September 1989
|564 A.2d 1155
|METROPOLITAN POLICE DEPARTMENT, Petitioner, v. Ronald BAKER, Respondent.
|D.C. Court of Appeals
Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellant.
J. Herbie DiFonzo, Washington, D.C., for appellee.
Before ROGERS, Chief Judge, and BELSON and SCHWELB, Associate Judges.
This is a petition by the Metropolitan Police Department (MPD) for review of an Order of the Office of Employee Appeals (OEA). We agree with the MPD that it presented evidence sufficient to support the termination of respondent, Officer Ronald Baker, and that the contrary findings of OEA were unsupported by substantial evidence. Accordingly, we reverse.
An MPD adverse action panel upheld Officer Baker's termination for conduct unbecoming an officer in that he "knew or should have known" that his wife had placed large sums of embezzled money in the couple's bank accounts, some of which Baker converted to his own use.1 Baker appealed to the OEA on the basis that he had been completely unaware of what his wife was doing. An OEA hearing examiner considered the MPD panel file, heard testimony from Officer Baker and his then wife, Wanda Baker, and then recommended that the MPD action be reversed on the ground that the MPD did not meet its burden of proof. An OEA reviewing panel adopted the recommendation of the hearing examiner and reversed the agency action. The full OEA denied the MPD petition for review. The MPD then petitioned the Superior Court of the District of Columbia to review the OEA action. On denial of that petition, the MPD appealed to this court to review the OEA action.
The facts which underlie this case are largely undisputed, and in important part were the subject of a stipulation. We set them forth in some detail in light of our conclusion that they do not support the OEA findings. We emphasize that our holding here is not the result of different findings as to subsidiary facts, which are largely undisputed, nor is it based on a reevaluation of the credibility of the witnesses who testified before the hearing examiner. Rather, we hold that on the evidence before her the hearing examiner could not reasonably have concluded other than that Officer Baker should have known, or at least should have had strong enough suspicions to be obliged to find out, that his wife's illegal activities caused the presence of large sums of money in his bank account, and that it was that influx of illegal money that enabled Baker to add a deck to his house and acquire a new Ford pickup truck and a late model Chevrolet Corvette over a short period of time.
Appellee Ronald Baker served as an officer of the Metropolitan Police Department for fourteen years, commencing in 1964. In 1975 he married Wanda Baker, who worked as an accountant for the Washington Hospital Center. In May of 1979 Wanda Baker was arrested for embezzling funds in the amount of approximately $64,000 from the hospital. Baker learned the reason for the arrest no later than several weeks thereafter. Wanda Baker began a new accounting job, at a reduced gross salary of $15,000 a year, in June of 1979 for an employer first called Capitol Reclamation Co. and later ECO Systems, and soon she began to embezzle there as well. The next month, Wanda Baker's mother, who managed her brother's estate with Wanda's help, discovered that her daughter had embezzled from the estate.
Shortly after her arrest for embezzlement, Wanda Baker opened three new bank accounts for herself and her husband. They included one joint checking account, one joint savings account, and an individual checking account for Officer Baker. There was a stark contrast between the couple's income during the ensuing period and the activity in those three accounts. Baker's take home pay was about $430 every two weeks, and Wanda Baker's was $432 every two weeks for a total of about $1,724 every four weeks. While Baker claimed that he had a second income during this period from employment with W. Bell & Company,2 he also testified that he frequently worked for MPD from early in the morning until about midnight because of the many extra community projects in which he was involved. The record showed only the deposit of one small check from W. Bell. Officer Baker testified that he was paid by check for his work at W. Bell, but that he could cash the check there. He further testified that he gave his pay from W. Bell to Wanda Baker. The record does not reflect how she handled the funds after that. It is obvious from the record that the couple's living expenses absorbed virtually their entire take home income.3 There was obviously little left for savings. After January of 1980, Wanda Baker was also required to reimburse the Washington Hospital Center the $64,000 she embezzled from it, at the rate of $8,000 per year.
Against this background of relatively limited income, Wanda Baker deposited a total of about $130,000 into the three newly opened accounts between June of 1979 and November of 1980. Of that total, she deposited $42,145 of ECO funds into her husband's personal checking account between October of 1979 and April of 1980. During that same period, she deposited $87,738 of the above total into the Bakers' joint accounts, also from ECO funds.
During the period from October 16, 1979, and April 1980, Ronald Baker signed checks drawn on his personal checking account totaling $33,829.78. That figure contrasted with his take home pay from the MPD during that period of slightly in excess of $5,500 and a combined take home pay of the couple of less than $11,000. Of the more than $33,000 in checks that Baker signed, he wrote the entire check in at least $21,000 worth of them; he signed, but did not fill out, the remainder.
Wanda Baker presented Officer Baker with a gift of a new Ford pickup truck in November of 1979. Her testimony was that she added this new vehicle to the two they already owned, a Cadillac and a Pontiac Sunbird, without first asking Baker. She paid $5,000 down, and he soon paid almost an additional $1,000 for fees, taxes, tags, etc. It is not clear whether monthly installment payments ensued. When Baker received this gift in November of 1979, Wanda Baker had recently entered a plea of guilty and was awaiting sentencing for the Washington Hospital Center embezzlement.
In the period between May and December 1979, the Bakers added a deck to their house at a cost of $1,500 to $2,000 which Mrs. Baker said she paid out of their joint checking account.
Subsequently, in early April 1980, Baker purchased for himself a 1979 Chevrolet Corvette. His wife was along at the time of the purchase. His down payment was approximately $6,000. Again, the record fails to show the amount of monthly payments that ensued, but in this case they were obviously substantial. Baker testified that he bought the Corvette with a combination of a tax refund in the amount of $3,500 and money which he had saved out of his income since the previous June.
The issue of whether Officer Baker had ever questioned his wife as to the source of their automotive affluence was not resolved by the hearing examiner. Wanda Baker testified that Officer Baker never asked her about any of the purchases. Officer Baker contradicted her, indicating that she explained that various purchases were funded by loans from members of her family.
Officer Baker testified that his wife managed all of their finances and that he regularly signed blank checks for her and did not look at bank statements. He stated that he would not look at bank statements even if she showed them to him, and that he was never aware of the balance in his personal account. He chose instead to ask his wife whether there was enough money in the account to cover a given purchase. Wanda Baker testified that Officer Baker regularly left signed, blank checks for her, and that when Officer Baker would ask her about his account balance [Tr. at 25-26]4
In November of 1980 Wanda Baker was once again arrested for embezzlement. In 1982 Officer Baker was indicted in Prince Georges County on charges including conspiracy and accessory after the fact, and the MPD suspended Officer Baker indefinitely pending the outcome of his criminal case. Wanda Baker pled guilty to one count of the indictment against her5 and again received a suspended sentence.6 Officer Baker was first convicted by a jury, but won a reversal because of an instructional error regarding character testimony, and ultimately was acquitted in a bench trial. Following the criminal proceedings, the MPD gave Officer Baker notice of its proposal to terminate for "conduct unbecoming an Officer," namely that he knew or should have known of his wife's illegal activities and that he knowingly benefited from her misdeeds.
After an evidentiary hearing before an MPD adverse action panel that found Baker's assertion of ignorance incredible,7 he was informed in August 1984 that the MPD had determined that it would terminate his employment. Officer Baker then appealed his dismissal to the (OEA). [Supplemental Record 1, Tab 3] OEA held an evidentiary hearing at which the only witnesses were Officer Baker and Wanda Baker. Because of the unavailability of the investigating officer, the MPD presented no witnesses at the OEA hearing.
The hearing examiner stated that she found Baker's
testimony believable for several reasons. First, Agency has failed to show that Employee's purchases were extreme or lavish for a person who worked two jobs. Secondly, since Employee was working two jobs it is conceivable that Employee would have had less...
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