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District of Columbia Metropolitan Police Dept. v. Perry

March 17, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)

Before Steadman, Farrell and King, Associate Judges. Opinion of the court by Associate Judge Steadman. Concurring opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: In this appeal, we are called upon to review a decision of the Office of Employee Appeals ("OEA") relating to the interrelation of two statutes both potentially applicable to disciplinary actions taken against police officers as a result of citizen complaints.

The Comprehensive Merit Personnel Act ("CMPA"), D.C. Code §§ 1-601 to -637.2 (1992 & 1993 Supp.), is a broad-ranging statute which sets forth a comprehensive system of personnel management for the government of the District of Columbia. With certain enumerated exceptions, it applies to all employees of the District, including police officers. D.C. Code § 1-602.1(a) (1992). The CMPA and its implementing regulations guarantee certain rights to an employee before the employee may be subject to job discipline. Included among these guarantees are the right to notification of the charge against the employee and the proposed disciplinary action, and the right to a certain period of time in which to respond to such charge and proposed action.

The Civilian Complaint Review Board Act ("CCRB Act"), D.C. Code §§ 4-901 to -911 (1988 & 1993 Supp.), enacted subsequent to the enactment of the CMPA, provides a unique system for the discipline of police officers for conduct brought to the attention of the police department through citizens' complaints. The Civilian Complaint Review Board ("CCRB") investigates the complaint and makes a recommendation to the Chief of Police. While the CCRB Act provides the officer with the opportunity to respond to the initial allegations, it does not include a mechanism whereby the officer can respond to the proposed disciplinary action.

Before us in a broad sense is the issue whether, and to what degree, the provisions of the CCRB Act supersede the provisions of the CMPA. More particularly in dispute is whether the provisions of the CMPA that provide for notice of and an opportunity to respond to the proposed disciplinary action are superseded by the CCRB Act. We affirm the decision of the Office of Employee Appeals, as herein interpreted, reconciling the provisions of those two acts.


Before discussing the legal issues involved in this appeal, we recount the statutory provisions involved as they existed at the time of these proceedings, as well as the litigation history that brought these issues before this court.


The District of Columbia Council enacted the CMPA in 1979 *fn1 to "assure that the District of Columbia government shall have a modern flexible system of public personnel administration." D.C. Code § 1-601.2(a) (1992). The CMPA provides that an employee within the scope of the CMPA shall have adverse action taken against him or her only for cause *fn2 and only after certain procedures are first completed. An adverse action is defined as a suspension of more than thirty days, a reduction in rank or pay, or a removal from employment. Id. § 1-617.1(b). The statute authorizes the Mayor to issue "rules and regulations establishing internal agency corrective, rather than punitive, measures. . . . [and to provide for] reprimands and for suspensions for 30 days or less." Id. § 1-617.1(a). Pursuant to this authorization, the Office of Personnel issued extensive regulations. See Personnel Reg. §§ 1600.1-1608.6, 30 D.C. Reg. 5874 (1983). *fn3

Corrective *fn4 or adverse actions must be initiated within forty-five days (excluding Saturdays, Sundays, and holidays) from "the date the agency knew or should have known" of the act or occurrence allegedly constituting cause. D.C. Code § 1-617.1(b-1)(1). When an agency proposes a corrective action, the employee must be given written notice stating "any and all causes for which the employee is charged, and the reasons, specifically and in detail, for the proposed action; and final action shall not become effective during that period." Personnel Reg. § 1604.7. The employee is entitled to at least ten days in which to answer the notice of proposed action, either orally or in writing or both, and to furnish affidavits or other documentary evidence in support of such answer. Id. §§ 1604.12, 1604.14.

The proposed action and the employee's answer, if there is one, must be reviewed by the disinterested designee of the agency head prior to final action. Id. § 1604.16. *fn5 "Examination of witnesses, a trial, or a hearing is not required, but may be provided at the discretion of the individual or individuals who are responsible for handling the adverse actions." D.C. Code § 1-617.3(a)(2) (1992). The deciding official may sustain the penalty proposed, reduce it, or dismiss the action with or without prejudice, but may not increase the proposed penalty. Personnel Reg. § 1604.35. The decision of the deciding official shall be rendered no more than forty-five days from the date of delivery of the notice of proposed action, *fn6 D.C. Code § 1-617.3(a)(1)(D); Personnel Reg. § 1604.38, and "shall be the final agency decision for the purpose of appeal." Personnel Reg. § 1604.33. An appeal from the final agency decision may be made to the OEA. D.C. Code § 1-617.3(b). *fn7


The District of Columbia Council adopted the CCRB Act in 1980, effective October 1, 1981, in response to legislative findings that the Metropolitan Police Department ("MPD") had not adequately responded to citizens' complaints against police officers. The CCRB Act provides a mechanism for public participation in the review of allegations of misconduct by police officers. The CCRB Act established a seven-member board *fn8 and gave the board exclusive jurisdiction over citizens' complaints against police officers in three areas: "(1) Police harassment; (2) Excessive use of force; (3) Use of language likely to demean the inherent dignity of any person to whom it was directed and to trigger disrespect for law-enforcement officers." D.C. Code § 4-901(c), -903(a) (1988). *fn9 The ...

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