Miller v. D.C. Office of Emp. Appeals
| Decision Date | 10 September 2020 |
| Docket Number | No. 18-CV-1250,18-CV-1250 |
| Citation | 237 A.3d 123 |
| Parties | Sholanda MILLER, Appellant, v. DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, et al., Appellees. |
| Court | D.C. Court of Appeals |
Gregory L. Lattimer, Washington, DC, was on the brief for appellant.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Carl J. Schifferle, Senior Assistant Attorney General were on the brief for appellee Metropolitan Police Department.
Lasheka Brown Bassey filed a statement in lieu of brief for appellee District of Columbia Office of Employee Appeals.
Before Blackburne-Rigsby, Chief Judge, Glickman, Associate Judge, and Epstein, Associate Judge of the Superior Court.*
The Metropolitan Police Department ("MPD") terminated appellant Sholanda Miller's employment as a police officer because of her complicity in the criminal activities of her boyfriend. Primarily on procedural grounds, Ms. Miller challenges the decision of the Office of Employee Appeals ("OEA") upholding her termination and the subsequent decision of the Superior Court upholding OEA's decision. We affirm.
The relevant facts are not disputed.
Until 2010, MPD employed Ms. Miller as a police officer. At the time, Ms. Miller lived with Eric Shorts, with whom she was romantically involved. During an investigation of a drug distribution enterprise, the Federal Bureau of Investigation wiretapped Mr. Shorts’ telephone. In recorded calls, Mr. Shorts disclosed recent criminal activity to Ms. Miller and thanked her for informing him of increases in police presence. Ms. Miller did not report any of this information to MPD.
Shortly after Mr. Shorts was arrested, MPD revoked Ms. Miller's police powers and referred the matter to the U.S. Attorney's Office. On July 20, 2009, the U.S. Attorney's Office issued a letter of declination stating that it would not bring criminal charges against Ms. Miller.
On November 23, 2009, MPD issued a Notice of Proposed Adverse Action ("NPAA") recommending a 15-day suspension for Ms. Miller. The NPAA gave Ms. Miller 15 days to submit a response, including evidence to controvert or mitigate the facts set forth in the investigative report. The NPAA informed Ms. Miller that if she did not file a response within 15 days, "the charges and specification as outlined will be evaluated based upon the evidence of record." Ms. Miller did not submit a response to the NPAA.
On February 1, 2010, MPD issued an Amended Notice of Proposed Adverse Action recommending termination of Ms. Miller's employment. The amended NPAA gave Ms. Miller six days to submit a written response and to request a hearing, which would occur on February 8, 2010.
By letter dated February 3, Ms. Miller requested a continuance of the February 8 hearing and "agree[d] to waive the 55-day rule as it applies to the length of this requested continuance." MPD granted the request and continued the hearing to April 6. By letter dated April 1, Ms. Miller requested another continuance and "agree[d] to waive the 55-day rule as it applies to the length of this requested continuance." MPD granted this request and continued the hearing to June 8. On April 6, Ms. Miller responded to the amended notice, stating "I have not submitted a request for a departmental hearing."
On April 13, MPD issued a final notice of adverse action finding Ms. Miller guilty of misconduct and imposing a penalty of termination.
Ms. Miller appealed the final notice to the then-Chief of Police Cathy L. Lanier. On May 7, 2010, Chief Lanier denied the appeal.
Ms. Miller appealed to OEA, and an OEA administrative judge upheld her termination on December 30, 2013. On April 14, 2015, the OEA Board affirmed in part and reversed and remanded in part.
On May 6, 2016, the administrative judge issued a decision on remand and again upheld MPD's decision to terminate Ms. Miller's employment. On June 6, 2017, the OEA Board affirmed.
Ms. Miller petitioned the Superior Court for review of the OEA Board's decision. On October 30, 2018, the Superior Court affirmed.
Ms. Miller timely appealed to this court.
Ms. Miller raises three issues. We address each in turn.
"When reviewing an appeal of an OEA decision, we are confined strictly to the administrative record and must affirm the OEA's decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law." Dupree v. D.C. Office of Employee Appeals , 36 A.3d 826, 830 (D.C. 2011) (cleaned up). "Questions of law, including questions regarding the interpretation of a statute or regulation, are reviewed de novo." Stevens v. D.C. Department of Health , 150 A.3d 307, 312 (D.C. 2016) (cleaned up). "This court routinely accords great deference to the OEA's interpretation of the statute which it administers." Id . at 318 (cleaned up). We likewise "defer to the OEA's interpretation of the personnel regulations," given its "expertise in administering and enforcing" those regulations. Hutchinson v. D.C. Office of Employee Appeals , 710 A.2d 227, 234 (D.C. 1998).
Ms. Miller contends that MPD violated the so-called "90-day rule" in D.C. Code § 5-1031 (2019 Repl.) because MPD issued its amended NPAA recommending termination more than 90 days after the conclusion of the criminal investigation of Ms. Miller. However, the statute requires only that MPD commence a disciplinary proceeding within 90 days after the conclusion of a criminal investigation, and MPD complied with this deadline.
D.C. Code § 5-1031 provides that "no corrective or adverse action against any" employee "shall be commenced more than 90 days" (excluding weekends and holidays) after the date MPD "had notice of the act or occurrence allegedly constituting cause" for the corrective or adverse action. Section 5-1031(b) provides, "If the act or occurrence allegedly constituting cause is the subject of a criminal investigation, .. the 90-day period for commencing a corrective or adverse action... shall be tolled until the conclusion of the investigation." Here, it is undisputed that (1) the 90-day period was tolled until the U.S. Attorney's Office issued its declination letter on July 30, 2009, (2) November 25 was the 90th business after July 30, and (3) MPD issued the NPAA commencing the disciplinary proceeding on November 23.
Ms. Miller argues that § 5-1031 imposes a deadline not only to commence a disciplinary proceeding by issuing an NPAA but also to propose the specific penalty that may be imposed at the end of the proceeding. In questions of statutory interpretation, "[w]e must first look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning." Peoples Drug Stores, Inc. v. District of Columbia , 470 A.2d 751, 753 (D.C. 1983) (en banc) (cleaned up). By its plain terms, § 5-1031 sets a deadline only for the commencement of a disciplinary proceeding and not to propose the resulting discipline. See D.C. Office of Tax & Revenue v. Sunbelt Beverage, LLC , 64 A.3d 138, 148 (D.C. 2013) (). In addition, although the significance of a title should not be exaggerated, Facebook, Inc. v. Wint , 199 A.3d 625, 629-30 (D.C. 2019), the title of a section may be a useful aid in resolving an ambiguity in the statutory language, Mitchell v. United States , 64 A.3d 154, 156 (D.C. 2013), and the title of § 5-1031 is "Commencement of corrective or adverse action."
We ordinarily do not probe legislative intent when, as here, the statutory language is plain, Kelly v. D.C. Department of Employment Services , 214 A.3d 996, 1009 n.11 (D.C. 2019), although "in certain circumstances it is appropriate to look beyond even the plain and unambiguous language of a statute to understand the legislative intent." D.C. Appleseed Center for Law and Justice, Inc. v. D.C. Department of Insurance, Securities and Banking , 54 A.3d 1188, 1214 (D.C. 2012) (cleaned up). The legislative history states that § 5-1031 addresses "when the disciplinary process must begin." See Committee on the Judiciary of the D.C. Council, Report on Bill 15-32, the "Omnibus Public Safety Agency Reform Amendment Act of 2003," at 15 (Dec. 9, 2003). To be sure, the legislative history evinces concern about delays in other parts of the disciplinary process, especially delays in the processing of cases by OEA. See Report at 14-15. However, the committee report, like the text of § 5-1031, indicates that the delays addressed by the legislation are delays in the commencement of the disciplinary process by the employing agency.1 If the legislative materials provide any support for Ms. Miller's interpretation of § 5-1031, the support is at best weak, and these materials therefore cannot be permitted to control the customary meaning of the words of the statute. See Peoples Drug Stores , 470 A.2d at 755.
Contrary to Ms. Miller's contention, MPD's ability to amend proposed discipline during the course of a proceeding commenced within the 90-day period does not make the 90-day rule "meaningless." The 90-day rule still limits the time that MPD has to decide whether to initiate a disciplinary proceeding. As MPD argues, Ms. Miller's interpretation would give MPD an incentive "to institute a raft of questionable charges and propose the harshest conceivable penalty in every case, out of fear that there will be no opportunity to later amend."
Ms. Miller argues that MPD should not have unfettered authority to add new charges or to propose stronger discipline after a disciplinary proceeding has commenced. We agree that MPD does not have carte blanche to amend the initial charges at any time. For example, as discussed in the next section, the 55-day rule helps to prevent unreasonable delays in amending charges or proposed discipline. However, constraints on the...
To continue reading
Request your trial
-
In re Ta.C.
... ... 19-FS-380District of Columbia Court of Appeals.Submitted March 26, 2020Decided September 10, 2020Kwame ... ...
-
D.C. Dep't of Health v. D.C. Office of Emp. Appeals
...decision "is supported by substantial evidence in the record and otherwise in accordance with law." Miller v. District of Columbia Off. of Emp. Appeals , 237 A.3d 123, 126 (D.C. 2020) (internal quotation marks omitted). There is no dispute about the evidentiary record in this appeal, which ......