Appeal from the Superior Court of the District of Columbia; Hon. Sylvia Bacon, Trial Judge
Rogers, Chief Judge, and Steadman and Farrell, Associate Judges. Opinion for the court by Associate Judge Steadman. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Steadman
Both the governing statute and implementing regulations require that a decision on proposed disciplinary action against career District of Columbia employees be rendered within forty-five days of notice of such proposed action. This appeal involves the question of the effect of a failure to comply with this time provision. We remand the case for the Public Employee Relations Board to further consider and amplify its reasoning with respect to this question.
On March 8, 1986, Jean Harrod, a correctional officer at the District of Columbia Department of Corrections (the "Department"), failed to report to a "shakedown," or search, of inmates as requested by her supervisor. On April 8, 1986, the Acting Administrator of the Department approved a charge of insubordination against Harrod and recommended that she be given a five-day disciplinary suspension. On April 24, the Administrator sent an Advance Notice of Proposed Suspension to Harrod, which she receive on May 1. The Notice informed Harrod of her right to file a reply, which Harrod did not exercise. On July 1, the Department issued its Final Decision ordering suspension, to be effective from July 22 to July 26.
On July 20, Harrod filed a grievance *fn1 stating, inter alia, that the Department had failed to issue its Final Decision within forty-five days of having issued its Advance Notice of Proposed Suspension, as provided in the District of Columbia Code and sections of the District of Columbia Personnel Manual, and that the disciplinary action should therefore be removed from Harrod's personnel folder. On July 23, the Department's Director responded to Harrod by letter and denied the grievance. Thereupon, Teamsters Local Union No. 1714 (the "Union"), the union representing employees of the District of Columbia Department of Corrections, including Harrod, requested arbitration of the grievance as provided for by the collective bargaining agreement.
Relying on a section of the District of Columbia Comprehensive Merit Personnel Act, D.C. Code §§ 1-601.1 to 1-637.2 (1987) (the "CMPA"), and regulations promulgated pursuant thereto in the District of Columbia Personnel Manual, the Union argued to the arbitrator that the Department was barred from ordering discipline since it failed to meet a forty-five-day deadline contained in those provisions. Section 1-617.3 of the Code provides:
(a) (1) An individual in the Career and Educational Services against whom an adverse action is recommended in accordance with this subchapter is entitled to reasons, in writing, and to the following:
(A) Notice of the action sought and of charges preferred against him or her;
(B) A copy of the charges;
(C) A reasonable time for filing a written answer to the charges, with affidavits; and
(D) A written decision on the answer within 45 calendar days of the date that charges are preferred.
D.C. Code § 1-617.3 (1987) (emphasis added). Section 1604.38 of the District of Columbia Personnel Manual provides:
The decision shall be rendered no more than forty-five (45) days from the date of delivery of the notice of proposed corrective or adverse action; provided that the period may be ...