                               District of Columbia
                                Court of Appeals
No. 14-CV-846
                                                                          AUG - 4 2016
DISTRICT OF COLUMBIA METROPOLITAN POLICE
     DEPARTMENT,
                                 Appellant,

     v.                                                       CAP-9192-12


DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD,
                                 Appellee,

         and

FRATERNAL ORDER OF POLICE METROPOLITAN POLICE DEPARTMENT
    LABOR COMMITTEE,
                                Intervenor.

               On Appeal from the Superior Court of the District of Columbia
                                     Civil Division

         BEFORE: FISHER and BECKWITH, Associate Judges; and STEADMAN, Senior
Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

               ORDERED and ADJUDGED that the order on appeal is affirmed.

                                          For the Court:




Dated: August 4, 2016.

Opinion by Senior Judge John Steadman.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
                                                                          8/4/16
             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CV-846

    DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT,

                                        V.

    DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE.

                                        AND

       FRATERNAL ORDER OF POLICE METROPOLITAN POLICE DEPARTMENT
                    LABOR COMMITTEE, INTERVENOR.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAP-9192-12)

                     (Hon. Judith N. Macaluso, Trial Judge)

(Argued January 15, 2016                              Decided August 4, 2016)

      Donna M. Murasky, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
appellant.
      Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P.
Carlton were on the brief, for appellee.
      Marc L. Wilhite for intervenor.

      Before FISHER and BECKWITH, Associate Judges, and STEADMAN, Senior
Judge.
                                            2

      STEADMAN, Senior Judge:       The Metropolitan Police Department (MPD)

proposed to terminate the employment of an officer because of off-duty

misconduct.     However, an adverse action panel (AAP), after a hearing,

recommended a penalty of only a thirty-day suspension. The issue before us is

whether the MPD was nonetheless free to reject that recommendation of the AAP

and instead to terminate the officer‟s employment. The District of Columbia

Public Employee Relations Board (PERB) ruled that the MPD could not do so.

We conclude that this was a reasonable interpretation of the controlling regulations

and therefore affirm the order on appeal.



                              I. Statement of Facts



      MPD Officer Crystal Dunkins was charged in Maryland with several crimes

for abusing her two children. She pleaded guilty to one count of confining an

unattended child in exchange for a sentence of five years of probation and the state

dropping the remaining charges. Reviewing these developments, MPD, through

then Assistant Chief of Police Shannon P. Cockett, issued a Notice of Proposed

Adverse Action, charging Officer Dunkins with conduct unbecoming an officer

and conduct constituting a crime. The proposed penalty was termination.
                                           3

      Officer Dunkins requested a Departmental Hearing before an AAP. The

AAP found her guilty of the MPD charges but recommended a thirty-day

suspension as the appropriate penalty instead of termination.       Assistant Chief

Cockett found AAP‟s recommendation “inconsistent with the misconduct,” and

imposed the original proposed adverse action of termination.



      Officer Dunkins unsuccessfully appealed her termination to the Chief of

Police, and then initiated arbitration proceedings, pursuant to a collective

bargaining agreement, to review, inter alia, whether “the [Assistant Chief of

Police] had the authority to impose the penalty proposed in the Notice rather than

the [AAP‟s] recommendation[.]” The arbitrator ruled that 6-A DCMR § 1001.5,

18 D.C. Reg. 417 (Feb. 7, 1972) (§ 1001.5) was the controlling regulation and

that, under the plain language of that regulation, MPD could only impose a penalty

of thirty days‟ suspension.1




      1
          Sec. 1001.5 provides, in relevant part:

              upon receipt of the trial board‟s findings and
              recommendations, and no appeal to the Mayor has been
              made, the Chief of Police may either confirm the findings
              and impose the penalty recommended, reduce the
              penalty, or may declare the board‟s proceedings void and
              refer the case to another regularly appointed trial board.
                                          4

      On appeal by MPD, the PERB affirmed the arbitrator‟s decision. It agreed

that § 1001.5 was the controlling regulation and rejected MPD‟s arguments to the

contrary. MPD then appealed to the Superior Court, which affirmed the PERB

decision, and in turn MPD appeals to us.2



                            II. Application of § 1001.5



      We begin with an iteration of our well-established standard of review when

addressing challenges to PERB rulings.3 To that end, “[t]his court will not easily

disturb a decision of the PERB.” Fraternal Order of Police/Dep’t of Corr. Labor

Comm. v. District of Columbia Pub. Emp. Relations Bd., 973 A.2d 174, 176 (D.C.

      2
         Where, as here, an appeal derives from the Superior Court‟s review of a
PERB decision, this court will review as though it was the court of original
appellate jurisdiction. Gibson v. District of Columbia Pub. Relations Bd., 785
A.2d 1238, 1241 (D.C. 2001).
      3
         The PERB in the case before us is technically reviewing a decision by an
arbitrator. Generally, though its authority to set aside an arbitral award is limited,
the PERB may do so where an award is “on its face contrary to law and public
policy[,]” D.C. Code § 1-605.02 (6) (2001). “Absent a clear violation of law[,]
one evident on the face of the arbitrator‟s award, the PERB lacks authority to
substitute its judgment for the arbitrator‟s.” Fraternal Order of Police/Dep’t of
Corr. Labor Comm. v. District of Columbia Pub. Emp. Relations Bd., 973 A.2d
174, 177 (D.C. 2009) (internal quotation marks omitted). However, in the instant
case, the PERB gave no indication that it considered its authority in interpreting
the relevant regulations to be other than plenary and appeared to make a de novo
independent analysis of the legal issue. We therefore review its decision as its
authoritative interpretation of the applicable law and proceed on that basis.
                                         5

2009). Rather, “we defer to the [PERB‟s] interpretation of the CMPA unless the

interpretation is „unreasonable in light of the prevailing law or inconsistent with

the statute‟ or is „plainly erroneous.‟” Id. (quoting Doctors Council of the Dist. of

Columbia Gen. Hosp. v. District of Columbia Pub. Emp. Relations Bd., 914 A.2d

682, 695 (D.C. 2007)). Put differently, we will only set aside a decision of the

PERB if it is “rationally indefensible.” Drivers, Chauffeurs, & Helpers Local

Union No. 639 v. District of Columbia, 631 A.2d 1205, 1216 (D.C. 1993); see also

id. at 1215-16 (“Even if, on our own, we would reach a different conclusion from

the PERB‟s, we must defer to the PERB‟s interpretation unless it is clearly

erroneous.”) (citing Public Emp. Relations Bd. v. Washington Teachers’ Union

Local No. 6, 556 A.2d 206, 210 (D.C. 1989)). This considerable deference derives

from our recognition that the PERB has “special competence” to address questions

arising under the CMPA. Hawkins v. Hall, 537 A.2d 571, 575 (D.C. 1988); see

also D.C. Code § 1-605.01 (1979) (establishing PERB).4 With this standard of

review in mind, we turn to the challenge to the PERB ruling that, under § 1001.5,

MPD did not have the authority to impose a sanction on Officer Dunkins greater

than that recommended by the AAP.

      4
         The District argues that no particular deference should be given to the
PERB interpretation because, as will be discussed infra, at least one other agency
has occasion to be involved in personnel disciplinary cases. However, the PERB
was clearly acting here within its general statutory role and we see no compelling
reason to disregard its interpretation if reasonable.
                                        6

      Prior to January 1, 1980, disciplinary actions involving police officers were

governed by a 1906 Act of Congress that established trial boards to adjudicate such

proceedings, now codified, as amended, as D.C. Code § 5-133.06 (2012 Repl.).

See An Act To amend section one of an Act entitled “An Act relating to the

Metropolitan police of the District of Columbia,” approved February twenty-

eighth, nineteen hundred and one, Pub. L. No. 59-205, ¶ 5, 34 Stat. 221, 222

(1906). Regulations were promulgated governing the trial boards and are now

found in title 6, subtitle A of the District of Columbia Municipal Regulations. The

provision that plays a key role in this appeal is 6-A DCMR § 1001.5, whose text is

set forth in footnote 1, supra.5



      In 1979, the Council of the District of Columbia enacted the Comprehensive

Merit Personnel Act, generally covering the entire field of employment by the

District of Columbia.     D.C. Code § 1-601.01-636.03 (2012 Repl.).       The Act

applied fully to all employees hired after January 1, 1980, a class into which

Officer Dunkins fell. As a temporary measure, all existing personnel rules and

regulations remained in effect until superseded, D.C. Code § 1-632.01 (a). The

Office of Personnel had authority delegated to it by the Mayor to issue new rules

      5
         Terminology becomes somewhat unclear as used by the parties here. It
appears, however, undisputed that the AAP performs the functions of the trial
boards established by the 1906 legislation.
                                         7

and regulations under the Act.       It exercised that authority by promulgating

regulations first set forth in 30 D.C. Reg. 5874 (Nov. 11, 1983) with subsequent

amendments.



      The key regulation relating to the issue before us is 6-B DCMR § 1601.5 (a),

53 D.C. Reg. 3974, 3974 (May 12, 2006), which provides as follows:



             Any procedures for handling corrective or adverse
             actions involving uniformed members of the
             Metropolitan Police Department, or of the Fire and
             Emergency Medical Services Department (FEMSD) at
             the rank of Captain or below provided for by law, or by
             regulations of the respective departments in effect on the
             effective date of these regulations, including but not
             limited to procedures involving trial boards, shall take
             precedence over the provisions of this chapter to the
             extent that there is a difference.



The PERB reasoned that this provision preserved the effectiveness of § 1001.56

and ruled that it applied to this case, thereby barring the imposition of any penalty

greater than that recommended by the AAP.


      6
          The statute that created trial boards, D.C. Code § 5-133.06 (2012 Repl.),
and formed the basis for the promulgation of § 1001.5 was made inapplicable to
later-hired police officers by the CMPA. D.C. Code § 1-632.03 (a)(1)(Z) (2012
Repl.). However, as indicated, PERB ruled that § 1001.5 continued to apply
because of § 1601.5 (a), which was duly promulgated under the authority of the
CMPA.
                                          8

      MPD‟s challenge to the PERB‟s reliance on § 1601.5 (a) as incorporating

the old § 1001.5 is based on the fact that § 1601.5 (a) only applies to “procedures.”

MPD argues that § 1001.5 is a substantive provision, not one relating to a

“procedure.” It analogizes § 1001.5 to a provision governing a sentence that may

be imposed in a criminal case, or a cap on damages in a civil case.7



      While the argument of MPD is not without some force, it does not carry the

day in light of our standard of review. The word “procedures” can have an

expansive meaning, and nothing in § 1601.5 (a) suggests that the intent was a

sharply limited one. MPD points out that the title of § 1001.1 is “Investigation and

Findings” as opposed to § 1000, which is titled “Rules of Procedure.” However,

Chapter A10 of Title 6 (of which both are subsections) is headed generally

      7
         We do not understand the MPD to take issue with the proposition that if in
fact § 1001.5 is applicable here, as the PERB ruled, its provisions bar the
imposition of a greater penalty than that recommended by the AAP. MPD‟s
present position, as argued to us, is that, since in its view § 1001.5 is inapplicable
by its very terms, the controlling provision is 6-B DCMR § 1613.2. MPD reads
this provision as authorizing the imposition of the originally proposed penalty; viz.,
termination. See the discussion in part III of this opinion. MPD‟s long-standing
position since the passage of the CMPA, now reflected in its General Order 1202.2
(V)(K)(8) (2006), dealing with “Disciplinary Procedures and Processes,” is that the
deciding officer can impose the penalty originally recommended and reject the
recommendation of the AAP. However, as the PERB noted, this provision is
overridden by a duly promulgated regulation, such as § 1613.2 and § 1001.5. See
District of Columbia v. Henderson, 710 A.2d 874, 877 (D.C. 1998) (noting that the
MPD General Order cannot override a regulation, in that case 18 DCMR § 2002.2
(b)).
                                          9

“Disciplinary Procedures,” and indeed, the MPD General Order which the MPD

claims is controlling is itself headed “Disciplinary Procedures and Processes.” See

supra note 7; cf. Morton v. Mancari, 417 U.S. 535, 549 (1974) (“[R]epeals by

implication are not favored.”) (quoted with approval in Owens v. District of

Columbia, 993 A.2d 1085, 1088 (D.C. 2010) (citing District of Columbia Metro.

Police Dep’t v. Perry, 638 A.2d 1138, 1144 (D.C. 1994))). It was not illogical to

make no distinction between pre- and post-CMPA hires by the MPD as to the

imposition of disciplinary sanctions, and the PERB interpretation merely continued

a long-standing pre-existent practice. In short, we see no basis to conclude that the

ruling by the PERB as to the application to this case of § 1001.5 is an unreasonable

one.8



                                 III. Section 1613.1



        At the end of its order, having ruled that § 1001.5 controls this appeal, the

PERB added a statement that even if § 1001.5 were not applicable, the comparable

provision in the applicable regulation, 6-B DCMR § 1613.1 & .2, 47 D.C. Reg.

7094, 7103 (Sept. 1, 2000), would lead to the same result. Those provisions read:

        8
         MPD complains about the relative brevity of the PERB analysis of the
§ 1001.5 issue. However, it was given extensive analysis in prior arbitration
decisions and it appears plain that the PERB considered it was making an
important interpretation of the applicable law. See supra note 3.
                                          10

             1613.1       The deciding official, after considering the
             employee‟s response and the report and recommendation
             of the hearing officer pursuant to § 1612, when
             applicable, shall issue a final decision.

             1613.2        The deciding official shall either sustain the
             penalty proposed, reduce it, remand the action with
             instruction for further consideration, or dismiss the action
             with or without prejudice, but in no event shall he or she
             increase the penalty.



The PERB simply said:        “Thus, § 1613.2 precludes a deciding official from

increasing the penalty recommended by a hearing officer by whatever name.” But

it then immediately added: “If § 1613.2 did not preclude increasing the penalty,

then § 1001.5 would supersede it and still preclude the assistant chief from

increasing the penalty.” Thus, it is clear that the eventual controlling ruling relates

to the continued application of § 1001.5.



      Nonetheless, MPD would have us rule on the validity of the PERB

interpretation of § 1613.2. MPD focuses on the language “penalty proposed.” It

asserts that this phrase refers to the penalty originally proposed—in this case,

termination—rather than the penalty recommended by the AAP. It asserts that this

meaning of “penalty proposed” was definitively established by our decision in

Hutchinson v. District of Columbia Office of Emp. Appeals, 710 A.2d 227 (D.C.

1998).
                                         11

      In Hutchinson, a deputy fire chief proposed that Hutchinson, an employee of

the District of Columbia Fire Department, be removed for inefficiency. Id. at 229.

Another deputy fire chief, serving as a “disinterested designee,” recommended a

ninety-day suspension. Nonetheless, the Fire Chief opted to remove Hutchinson.

Hutchinson exercised his right to appeal to the Office of Employee Appeals (OEA)

under D.C. Code § 1-606.03 (a). An administrative law judge of the OEA upheld

Hutchinson‟s removal, and the full OEA denied Hutchinson‟s subsequent petition

for review. Hutchinson petitioned for reversal by the Superior Court, which was

denied, and in turn to us.



      Among other things, Hutchinson challenged the imposition of termination

rather than the ninety-day suspension recommended by the disinterested designee.

We noted that his argument turned on the interpretation of D.C. Personnel Regs.

§ 1614.49 (1987), which was in all relevant respects identical to § 1613.2.10 We

deferred to the interpretation of the OEA that the “penalty proposed” referred to

the original proposed sanction rather than that recommended by the disinterested

designee, observing that “[t]he purpose of the OEA is to review certain personnel

decisions of other District of Columbia agencies” and that “the OEA has developed


      9
           34 D.C. Reg. 1845, 1858 (Mar. 20, 1987).
      10
           47 D.C. Reg. 7094, 7103 (Sept. 1, 2000).
                                        12

an expertise in administering and enforcing the District of Columbia Personnel

Regulations.” Hutchinson, 710 A.2d at 234.



      On its face, therefore, the PERB‟s summary interpretation of § 1613.2 runs

counter to that of the OEA upheld by us in Hutchinson. But in Hutchinson, as

presented to us, the interpretation of the relevant section was conclusive to the

appeal. That is not true here. Hutchinson involved a Fire Department employee,

not an employee of the MPD, and there is no suggestion in that opinion that the

Fire Department had a pre-existing provision comparable to § 1001.5, which was a

regulation pertaining purely to the MPD. Nor is there any compelling reason why

the interpretation by the OEA, acting within its statutory authority, should be

favored over that of the PERB, also acting within its statutory authority to review

arbitration decisions.



      In this posture, we see no reason to reach out to decide an issue not squarely

presented to us in this appeal. If we were to review the PERB interpretation, we

would want to do so in a context where the PERB addressed the issue as

determinative and engaged in an analysis of its interpretation of § 1613.2 and
                                        13

considered carefully our decision in Hutchinson and the interpretation of that

section by OEA. None of that is presented here.11



                                 IV. Conclusion



      In sum, we see no basis to hold that the PERB‟s affirmance of the arbitral

award, applying § 1001.5 as a procedural rule via § 1601.5 (a), was rationally

indefensible. Drivers, supra, 631 A.2d at 1216. The PERB order is, therefore,



                                             Affirmed.




      11
          Of course, with the potential conflicting interpretations identified, the
executive and legislative branches are fully empowered to resolve the conflict
prospectively through legislative or regulatory means. Indeed, it appears that
Chapter 16 of Title 6-B has very recently been extensively revised to “implement a
new disciplinary and grievance program,” effective February 3, 2016. See 63 D.C.
Reg. 1265. Since no party has cited these amendments or briefed the issue, we
take no position with respect to this development.
