Appeals from the Superior Court of the District of Columbia; Hon. Rufus G. King, III, Trial Judge
Before Terry, Wagner, and King, Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: The Office of the District of Columbia Controller ("the employer") appeals an order (No. 92-CV-192) of the Superior Court reversing the decision of the Office of Employee Appeals ("OEA") that affirmed the termination of employment of appellee, Alvin C. Frost ("the employee"). We conclude that the Superior Court did not err in so ruling and accordingly we affirm *fn1 that part of the trial court's order reversing the decision terminating employment. We reverse, however, the trial court's remand order directing OEA to consider the employer's claim that the sanction imposed amounted to double jeopardy and constituted retaliation for protected activity.
I. Facts and Procedural History
In 1983, Frost became the manager of the Cash Management Office, a department of the District of Columbia Controller. One of his duties as manager was to ensure the integrity of the office computer system ("the Fortune System") by changing the manager code and other related codes of the system when he discovered any breaks in security in the system.
On January 31, 1986, Frost delivered to the Office of the Mayor a letter criticizing the management of the Cash Management Office, and specifically criticizing his immediate supervisor, Fred Williams. On February 3, 1986, Frost discovered that someone had accessed the Fortune System, by using a confidential code, and had printed a copy of his January 31 letter to the mayor. *fn2 Upon this discovery of what he perceived to be a security breach, Frost created a new manager code as he had done on prior occasions when he discovered security breaches of the system. Frost did not inform Williams, or anyone else, of the change in the code.
On February 6, 1986, Williams discovered that the manager code had been changed, and he requested that Frost disclose the new code to him. Frost refused. The following day, Williams issued what was entitled a "Letter of Reprimand," in which, inter alia, he described Frost's refusal to reveal the code, and stated that Frost's actions "constitute willful disobedience" and that "under D.C. Law 2-139 this action carries a penalty ranging from reprimand to suspension to removal." Williams directed Frost to: (1) cease and desist from using the Fortune System; (2) relinquish the codes to the Fortune System; and (3) relinquish all materials related to the Fortune System that Frost had in his possession. The reprimand was not delivered to Frost on February 7, the date of issue, because he was on sick leave. When Frost returned to work, on February 10, Williams again requested that he disclose the code. Frost again refused to comply.
On February 13, 1986, Williams issued a "Letter of Direction" that contained the following passage: "the memorandum entitled 'Letter of Reprimand' dated February 7, 1986 is hereby amended to read 'Letter of Direction.' . . . The content of this letter will remain the same with one exception, the penalty clause has been removed." The following day, February 14, the employer issued a notice of proposed removal, to become effective March 4, which listed three "causes and details in support thereof." The first cause was entitled, "Misuse, mutilation or destruction of District property or funds, to wit, willful mutilation and alteration of official Government records." Two paragraphs followed in which the employer described the alleged improper conduct and the consequences of the conduct. Included was an allegation that Frost "willfully destroyed the existing super users code and managers code . . . and created a new code without informing anyone." Also included was an allegation that Frost's "destruction of these codes prevented appropriate personnel from taking necessary financial management actions for a period of days."
The second cause, entitled, "Dishonesty, to wit, misappropriation of Government-owned property of more than nominal value," described Frost's action of creating a new code without informing anyone of the change as "a wrongful exercise of dominion and control over property belonging to the District, for the purpose of making the code serve your own use, to the exclusion of and inconsistent with, the rights of the District Government." Referring to the misuse charge described earlier in the notice of termination, the second cause also alleged that government officials were unable to access the system.
The final cause for Frost's removal was "Insubordination, to wit, refusal to comply with written instructions and direct orders by your superior." Frost does not dispute that he refused to comply with the orders by Williams, but he argued before the agency and in the Superior Court that there were mitigating circumstances which justified his refusal. In this court, however, he does not challenge the finding of insubordination.
Pursuant to 30 D.C. Reg. § 1604.18, at 5886 (1983), a disinterested designee was appointed to receive Frost's response to the proposed removal notice and to issue a report and recommendation to the official who proposed the adverse action. The disinterested designee, in a report issued on March 3, 1986, concluded that each of the three charges was supported and that removal was an appropriate penalty. The employer issued its final decision removing appellee on March 4, 1986, and Frost appealed his termination to OEA on March 19. See D.C. Code § 1-606.3 (a) (1992) (District employee may appeal an adverse action taken against him).
Following an eight-day evidentiary hearing, a hearing examiner issued an Initial Recommendation. The hearing examiner concluded that changing the code upon discovery of a security breach was within Frost's scope of duties, and that the misuse charge had not been proven because the employer failed to prove the alleged harm, namely, that there was any interference with the actual operations of the Fortune System. *fn3 The hearing examiner determined that the only difference between the code change Frost made in this instance and those that he had made on prior occasions was that this time Frost did not disclose the new code to Williams. The hearing examiner concluded that Frost's failure to disclose the code was improper conduct, but that it was included within the insubordination cause, rather than the misuse cause.
The hearing examiner also concluded that the employer failed to prove, as alleged in the dishonesty cause, that Frost intended to change the code in order to make it serve his own use. Therefore, since it was Frost's duty to change the code when he discovered a security breach, the examiner found that the dishonesty cause had not been proven. Finally, the hearing examiner determined that the evidence supported the insubordination cause, but because the Fortune System was never in danger, a five-day suspension was an appropriate sanction instead of removal.
A divided three-member panel of OEA *fn4 adopted the examiner's recommendation that Frost was insubordinate, but rejected the remainder of the recommendation and affirmed the employer's action removing Frost. *fn5 Pursuant to D.C. Code § 1-606.1 (d) (1987), Frost appealed the decision of OEA's panel to the Superior Court. After a hearing, the Superior Court issued an order on January 16, 1992, reversing and remanding the decision of OEA. The trial court concluded that neither the misuse nor the dishonesty cause was supported by substantial evidence. The trial court affirmed OEA's decision regarding the insubordination charge.
Finally, the court remanded the case to OEA to determine whether the "5 day suspension recommended by the Hearing Examiner was nonetheless excessive or inappropriate in light of the following considerations: a) whether had already been disciplined for the act of insubordination; b) whether [employee's] discipline was in retaliation for [employee's] protected activity under the D.C. Employees Bill of Rights; c) whether had been the subject of disparate treatment."
In its appeal to this court, the employer contends that the Superior Court erred: 1) in reversing OEA's findings on the misuse and dishonesty causes and in concluding that a five-day suspension, rather than removal, was the appropriate sanction; 2) in remanding the case to OEA to determine whether Frost had been previously disciplined for his act of insubordination; and 3) in remanding the ...