BURTON v. OFFICE OF EMPLOYEE APPEALS, 09-CV-1493 (2011)
Court: Court of Appeals of Columbia
Number: indcco20111103095
Visitors: 7
Filed: Nov. 03, 2011
Latest Update: Nov. 03, 2011
Summary: FootNotes 1. These appeals have not been formally consolidated, but, recognizing the similarity of the issues, this court ordered that they be argued on the same day, before the same division. We now decide both appeals in a single opinion. 2. D.C.Code 1-608.01(d-2)(1) provides for both Career Service promotions and Excepted Service appointments to the position of Commander. Career Service employees are subject to, and protected by, the Comprehensive Merit Personnel Act (CMPA); they ge
Summary: FootNotes 1. These appeals have not been formally consolidated, but, recognizing the similarity of the issues, this court ordered that they be argued on the same day, before the same division. We now decide both appeals in a single opinion. 2. D.C.Code 1-608.01(d-2)(1) provides for both Career Service promotions and Excepted Service appointments to the position of Commander. Career Service employees are subject to, and protected by, the Comprehensive Merit Personnel Act (CMPA); they gen..
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FootNotes
1. These appeals have not been formally consolidated, but, recognizing the similarity of the issues, this court ordered that they be argued on the same day, before the same division. We now decide both appeals in a single opinion.
2. D.C.Code § 1-608.01(d-2)(1) provides for both Career Service promotions and Excepted Service appointments to the position of Commander. Career Service employees are subject to, and protected by, the Comprehensive Merit Personnel Act (CMPA); they generally cannot be fired without cause. D.C.Code §§ 1-608.01, -616.51, -616.52 (2001). By contrast, individuals in the Excepted Service are "at-will" employees without any job tenure or protection. D.C.Code §§ 1-609.01, -609.05 (2001). Although the MPD initially contended before the Office of Employee Appeals that Commander Hoey was a member of the Excepted Service, it has not pursued that argument on appeal.
3. D.C.Code § 1-608.01(d-1) (2001) states that, "notwithstanding ... any other law or regulation, the Assistant and Deputy Chiefs of Police and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Mayor so determines."
4. Section 1-632.03(1)(B) was enacted as part of the CMPA. As pertinent here, it removed the Mayor's then-existing authority to return high-ranking police officials to the rank of Captain. This history is discussed in greater detail in Part III.A., infra.
5. In an order issued on May 9, 1997, the Mayor delegated his personnel authority under this provision to the Chief of Police. Mayor's Order 97-88, 44 D.C.Reg. 2959-60 (May 16, 1997). That delegation remains in effect.
6. The relevant portion of § 4-103 provided:
That the assistant superintendents and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Commissioner so determines.
The reference to "assistant superintendents" was a holdover from an earlier era, when the police were commanded by a Major and Superintendent and supported by several Assistant Superintendents. See 24 ACTS OF CONGRESS AFFECTING THE DISTRICT OF COLUMBIA, 66TH CONG., 1ST AND 2ND SESSIONS 383 (May 19, 1919, to June 10, 1920). In the 1981 version of the Code, the term "assistant superintendents" was updated to "Assistant and Deputy Chiefs of Police." See D.C.Code § 4-104 (1981). The 1981 version also changed "Commissioner" to "Mayor" to reflect changes in the District's governance. See id. Similar authority had been granted to the District of Columbia's top officials since 1919.
7. This provision was later renumbered to § 1-632.03(c).
8. This provision is now found in § 5-105.05.
9. These provisions stated that:
(1) The Chief of Police shall recommend to the Director of Personnel criteria for Career Service promotions and Excepted Service appointments to the positions of Inspector, Commander, and Assistant Chief of Police that address the areas of education, experience, physical fitness, and psychological fitness. The recommended criteria shall be the same for Career Service promotions and Excepted Service appointments to these positions. When establishing the criteria, the Chief of Police shall review national standards, such as the Commission on Accreditation for Law Enforcement Agencies.
(2) All candidates for the positions of Inspector, Commander, and Assistant Chief of Police shall be of good standing with no disciplinary action pending or administered resulting in more than a 14-day suspension or termination within the past 3 years.
Bill 15-32 (Comm. Print Dec. 9, 2003); see also D.C.Code § 1-608.01(d-2).
10. Mr. Hoey also argues that this issue is not properly before us because the MPD did not raise it in the initial OEA proceeding and the Board of the OEA erred in considering it. We find no merit in this claim; the record indicates that the MPD raised this issue at all stages of the proceedings.
11. Mr. Burton specifically cites 6-B DCMR §§ 833.2, 834.1, 836.1, 836.5, and 836.7 (1985). These provisions prohibit assigning "a Career Service appointee to a position with less rights and benefits ... unless the employee has waived the rights and benefits in writing," 6-B DCMR § 833.2; reducing "an employee's rights and benefits with respect to continued employment ... by promotion, demotion, or reassignment" unless a valid waiver is executed, 6-B DCMR § 834.1; or reassigning a Career Service employee to a position at a lower grade or with fewer rights or benefits, 6-B DCMR § 836.1. Also, a Career Service employee may not "voluntarily accept a lower-graded position" or "a position with lesser rights or benefits" unless a proper waiver is executed. 6-B DCMR §§ 836.6 to -.7. In addition, § 836.5 establishes the procedure for involuntarily demoting a Career Service employee:
An involuntary demotion of a Career Service employee shall be made by either of the following:
(a) By adverse action procedures in accordance with chapter 16 of these regulations; or
(b) By reduction-in-force procedures in accordance with chapter 24 of these regulations.
12. Mr. Burton also suggests that the protections of the CMPA supersede the authority provided to the Chief of Police by § 1-608.01(d-1) since the CMPA was enacted after the Commissioners first received such authority in 1919. We find no merit in this argument since the Council of the District of Columbia enacted § 1-608.01(d-1) in 2000, thereby reinstating the authority the CMPA originally extinguished. See supra Section III.A.
13. For this reason, Mr. Hoey's related argument, that § 1-608.01(d-1) contravenes § 1-609.03(a)(2) because it would allow the Chief of Police to exceed the number of Excepted Service officers permitted under that provision, also fails. D.C.Code § 1-608.01(d-1) does not convert any Career Service employees to Excepted Service employees, but simply helps define the Career Service protection provided to high ranking officials of the MPD.
14. We are not certain this is a fair interpretation of the Board's decision. In any event, since neither Mr. Hoey nor Mr. Burton is a member of the Excepted Service, the question of whether § 1-608.01(d-1) also applies to Excepted Service employees is not properly before us, and we express no opinion about the language in the Board's decision to which Mr. Hoey refers.
15. After its decisions in Hoey and Burton, the OEA decided Keegan v. District of Columbia Metropolitan Police Department, OEA Matter No. 1601-0044-08 (2010), which also concerned the rights of a high-ranking Career Service police official who had been returned to the rank of Captain. In that case, the Board stated that it was "inclined to believe that Employee retained his rights as a Career Service employee" and that he therefore could not have been demoted without cause. Appellants urge this court to adopt the Board's reasoning from Keegan or to remand these cases so that the Board may enter new decisions consistent with Keegan. We reject that invitation for multiple reasons. First, the decisions in Hoey and Burton are the only ones currently before us. Second, the decision in Keegan seems to reflect the Board's belief that it was bound by two decisions of the United States District Court for the District of Columbia. See Hoey v. District of Columbia, 540 F.Supp.2d 218 (D.D.C. 2008) (dismissing suit for failure to exhaust administrative remedies); Fonville v. District of Columbia, 448 F.Supp.2d 21 (D.D.C.2006) (denying defendant's motion for summary judgment). We disagree with that conclusion and further note that those cases did not squarely address the precise question at issue here: whether D.C.Code § 1-608.01(d-1) provides the Chief of Police with specific statutory authority to return Career Service employees to the rank of Captain without cause. In any event, those decisions do not bind us. Finally, we are presented here with a question of statutory construction, as to which we exercise de novo review.
16. The relevant portion of § 1-608.01(d-1) provides that "the Assistant and Deputy Chiefs of Police and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Mayor so determines."
17. The relevant portion of that provision states:
The Mayor of said District shall appoint to office, assign to such duty or duties as he may prescribe, and promote all officers and members of said Metropolitan Police force;... provided further, that the Assistant and Deputy Chiefs of Police and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Mayor so determines....
D.C.Code § 5-105.01 (2001).
18. See supra Part III.A.
19. The position of Deputy Chief was phased out in 1997, when the last three Deputy Chiefs retired.
20. This regulation was amended in both 2002 and 2008, though each version continued to provide the Chief of Police with the discretionary authority to return Commanders to the rank of Captain. 49 D.C.Reg. 1859 (2002), 55 D.C.Reg. 21 (2008). Some of the language in the 1998 and 2002 versions of the regulation may have contributed to the confusion about whether Commanders were Career Service or Excepted Service employees. Nevertheless, the language of § 872.5, which partially tracks that of D.C.Code § 1-608.01 (d-1), should have indicated to appellants that the MPD was applying the statutory authority granted by (d-1) to Commanders.
21. Appellants specifically cite 6-B DCMR § 833.2 (1985), which provides that "[a]ny internal placement of a Career Service appointee to a position with less rights and benefits shall not be effective unless the employee has waived the rights and benefits in writing...."
Source: Leagle
