March 17, 1994
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT
KEITH PERRY, ET AL, APPELLEES
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provisions of the CMPA that provide for notice of and an opportunity to respond to the proposed disciplinary action are superseded by the CCRB Act.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
B. CCRB Act
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 MPD and the Mayor are "prohibited from maintaining any system other than that set forth" in the CCRB Act for the processing of civilian complaints in these three areas. D.C. Code § 4-909(c) (1988).
Within thirty days of the submission of the complaint the CCRB is to set the time and place for a hearing, unless the complaint is frivolous on its face. D.C. Code § 4-905(a) (1988); 6A DCMR § 2108.1 (1988). *fn10 The accused officer must be given "sufficient opportunity to respond to allegations in complaint," D.C. Code § 4-905(a), and must be given notice of the hearing at least fifteen days prior to the commencement of the hearing. 6A DCMR § 2109.1. The Executive Director of the CCRB shall, at the direction of the CCRB, conduct an investigation of the complaint, including the interviewing of witnesses and police personnel, and a written report explaining the results of such investigation shall be filed with the CCRB and served on every party before the hearing. D.C. Code § 4-905(a). The decision of the CCRB must be based on the exclusive record developed in the investigation and at the hearing. Id. § 4-905(c). *fn11
The CCRB must determine in each case whether the complaint "should be sustained, dismissed, or found to evidence misconduct not directly related to the immediate complaint but within the authority of the ." Id. § 4-902(a) (1988). *fn12 "The shall be empowered to recommend [in writing] personnel actions against officers involved in misconduct. . . . shall recommend actions to be taken by the Chief" of the MPD. Id. § 4-902(a), (b).
The Chief of the MPD is required to act within thirty days of the CCRB recommendation, and a "failure to act within 30 days shall be deemed final action by the Chief of the ratifying the findings and recommendations of the ." Id. § 4-903(c). Within thirty days after receiving the CCRB's recommendation, the Chief may "(1) implement or otherwise issue a final order with respect to such recommendations; or (2) refer the matter to a police trial board." Id. § 4-903(c). If the Chief disagrees with the CCRB's recommendation, the Chief's written recommendation and reason therefor and the CCRB's findings and recommendation shall be submitted to the Mayor, who then has thirty days in which to either uphold the recommendation of the Chief, impose the recommendation of the CCRB, or order a compromise between the two. Id. § 4-902(c) (1988). If the Mayor fails to act within thirty days, the recommendation of the Chief becomes final. Id. If the Chief decides to implement the CCRB's decision or to refer the matter to a trial board, that decision is final, id. §§ 4-902(c), -903(c), "provided, that, all rights provided by [the CMPA] as amended by this chapter, including the right to appeal before the and the right to a trial board hearing prior to dismissal[,] are maintained." Id. § 4-902(c) (1993 Supp.). A final decision, other than referral to a police trial board, by the Chief or the Mayor may be appealed to the OEA. *fn13 Id. § 4-903(c).
C. Procedural Background
Pursuant to the CCRB Act, citizens' complaints were filed with the CCRB in the years 1982-1986 *fn14 against fourteen members of the MPD. *fn15 The CCRB conducted an investigation and held a full hearing in each case and then issued written decisions finding that each police officer had engaged in conduct prohibited by the CCRB Act and recommending that the MPD impose minor discipline in each of the cases, ranging from a reprimand to a suspension of ten days. In eight of the fourteen cases, the Chief of Police concurred with the CCRB's recommendations and disciplined each officer accordingly. In one case, the Chief recommended the same discipline but disagreed with the CCRB's charges and the Mayor sustained the Chief's recommendation. In three of the cases, the Chief recommended a decrease in the discipline recommended by the CCRB, and referred the cases to the Mayor. Out of those three cases, the Mayor sustained the Chief's recommendation in one and sustained the CCRB's recommendation in the other two. The Chief recommended an increase in the discipline proposed by the CCRB in one case, and the Mayor sustained the Chief's recommendation. In the final case, the Chief recommended a decrease in the discipline proposed by the CCRB, but did not submit his written recommendation to the Mayor within the thirty-day time period proscribed by the CCRB Act, so the CCRB's recommendation was imposed.
Each police officer appealed separately to the OEA, contending that the disciplinary action was invalid because the MPD had imposed it without complying with the procedures set forth in the CMPA which must be followed by the agency. In particular, the officers argued that they were denied the notice of and opportunity to respond to the proposed discipline guaranteed to them, like all nonexempt government employees, pursuant to the CMPA. In opposition to these appeals, the MPD argued in each case that the CCRB Act specifically amended the CMPA and that the procedures established by the CCRB Act provided that the MPD was to implement disciplinary action in cases within the scope of the CCRB Act without regard to the requirements governing personnel disciplinary actions imposed upon agencies by the CMPA.
The hearing examiners assigned to the officers' appeals recommended reversal in each case. *fn16 They ruled that the MPD had violated the CMPA by imposing discipline without providing each employee an opportunity to respond to the final decision-maker about the proposed action against him. The MPD filed petitions for review before the full OEA board, asserting that the initial decisions were based on an erroneous interpretation of the law. The OEA consolidated all of the cases for the purpose of review.
On August 8, 1989, the OEA issued an Opinion and Order in which it denied the petitions for review and affirmed the decisions of the hearing examiners. The OEA board ruled that the CCRB Act procedures were not irreconcilably in conflict with the notice and comment provisions of the CMPA, and that the latter, therefore, must also be followed. The time periods otherwise required under the CMPA were reduced by the OEA so that the adverse or corrective actions would be completed within the time required by the CCRB Act.
The OEA disagreed with the MPD's argument that even if police officers maintain a right to notice and an opportunity to comment under the CMPA, these requirements were satisfied under the requirements of the CCRB Act. The OEA noted that the MPD did not cite any provision of the CCRB Act which provided for the employee to receive notice and an opportunity to respond to the proposed discipline. Such an opportunity would be impossible under the structure of the CCRB Act, because during the investigatory and hearing process of the CCRB Act, a proposal regarding discipline has not yet been formulated. Further, under the CCRB Act, the employee does not receive an additional opportunity to respond once an action is actually proposed. Thus, the OEA concluded that the CCRB Act does not satisfy the procedures required by the CMPA.
The MPD also argued that the forty-five-day decision-making period provided for in the CMPA is superseded by the thirty-day period in the CCRB Act and claimed that satisfying the procedures of the CMPA within the CCRB Act's thirty-day period is administratively impossible. The OEA agreed that the MPD must reach a final decision within the thirty-day period specified in the CCRB Act *fn17 rather than forty-five days, and that the CMPA was amended to this extent. However, the OEA found that this reduction in the time period did not make compliance with the CMPA impossible, and that mere inconvenience or difficulty in compliance does not allow a statutory mandate to be ignored.
The MPD sought judicial review of the OEA board decision pursuant to Superior Court Agency Rule 1 (1993) and D.C. Code § 1-606.3(d) (1992). *fn18 By Memorandum and Order dated April 5, 1991, the trial court affirmed the OEA's decision on the ground that it was supported by substantial evidence on the record and was not clearly erroneous as a matter of law. The MPD has now appealed to this court for review.
Several legal principles guide our analysis. First, it is a well-settled principle of statutory construction that repeals by implication are not favored. Luck v. District of Columbia, 617 A.2d 509, 514 (D.C. 1992); Goodwin v. District of Columbia Bd. of Educ., 343 A.2d 63, 65 (D.C. 1975) (per curiam). When two statutes appear to apply to the same situation, and there is no affirmative showing of an intention to repeal the earlier statute, both statutes should be given effect unless they are irreconcilable. Morton v. Mancari, 417 U.S. 535, 551, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974).
Second, even if there is a positive repugnancy between the old and the new statutes such that they are irreconcilable, the older statute is repealed only to the extent of the irreconcilability. United States v. Borden Co., 308 U.S. 188, 198-99, 84 L. Ed. 181, 60 S. Ct. 182 (1939); United States v. Young, 376 A.2d 809, 813 (D.C. 1977). Moreover, the process of reconciliation involves retaining the whole of the newer and more specific statute and retaining as much of the older and more general statute as is reasonably possible. See 1A NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 23.16 (5th ed. 1993). Indeed, here the CCRB Act by its own terms specifically overrides prior-enacted laws which are "inconsistent or conflict with" the CCRB Act. D.C. Code § 4-910, see note 13 (supra) , and the implementing regulations of the CMPA contain a similar provision with respect to conflicting laws or regulations addressed to police officers. See note 7 (supra) . Therefore, we must determine the extent to which the CMPA's provisions governing adverse actions can fit within the statutory framework of the CCRB Act, and to the extent that they can, how they must be reconciled.
Third, while this court gives special deference to an agency in the agency's interpretation of a statute that the agency is empowered to administer and enforce, see, e.g., Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 758-59 (D.C. 1993) (en banc; per curiam), this deference is less suited to a decision interpreting the relationship between the CCRB Act and the CMPA. In this case, the OEA was required to do more than interpret its own statute; it was also required to interpret the CCRB Act, which it does not administer, and to reconcile the provisions of the two Acts. The concept of the special knowledge and expertise of an agency that underlies the deference rule has less applicability here. *fn19
The principal issue presented on this appeal is the correctness of the OEA's rejection of the MPD's argument that the CCRB Act superseded in all respects those provisions of the CMPA relating to disciplinary proceedings within an agency. We agree with the OEA.
There is no indication that the legislature intended such a complete repeal. On the contrary, the CCRB Act not only specifically refers to the CMPA, but contains a proviso that "all rights provided by [the CMPA] as amended by this chapter, including the right to appeal before the and the right to a trial board hearing prior to dismissal[,] are maintained." D.C. Code § 4-902(c) (1993 Supp.). We cannot read the word "including" as intended to exclude rights other than the two mentioned. On the contrary, the reference to "all rights" except as "amended" indicates to us an intent that the two acts be reconciled to the extent possible.
The MPD sets forth several examples of provisions of the two acts that it asserts are irreconcilable, but we do not think they compel the Conclusion that the CMPA does not apply at all. Rather, we think that, within the accepted principles of statutory construction described above, the OEA properly reconciled the statutes to the extent possible, finding an implicit repeal only of the specific provisions in which a conflict occurred.
As the OEA acknowledged, one clear area of conflict is in the designated time periods for action. The CMPA gives the head of the agency forty-five days from the time that the agency learns of the acts allegedly constituting cause to initiate the adverse or corrective action and forty-five days from the delivery of the notice to the employee to make a decision. The first forty-five-day period can have no application to the proceedings of the CCRB Act prior to the receipt by the Chief of the recommendations of the Board, for which the statute provides its own time periods, and we do not understand the OEA to suggest the contrary. The CCRB Act, on the other hand, gives the Chief only thirty days from the time that the MPD receives the CCRB's recommendation to implement that recommendation. The MPD argues that the CMPA's time period for adverse and corrective actions cannot be reconciled with the mandatory thirty-day requirement of the CCRB Act. While indubitably the notice requirement does somewhat complicate processing the CCRB's recommendations, we do not think that the OEA erred in concluding that the MPD had not shown that these requirements were irreconcilable. *fn20
Another area in which appellant argues that an irremediable conflict exists is the situation in which the Chief fails to take action within thirty days of receipt of the CCRB's recommendation. According to the CCRB Act, this failure is deemed to be "final action . . . ratifying the findings and recommendations of the , after which an aggrieved officer may exercise any right of review provided by law." D.C. Code § 4-903(c). Appellant argues that the Chief's inaction being deemed final action is inescapably in conflict with the adverse or corrective action proceeding requirements. We fail to see why this is so. The Chief's inaction is "final action" in that it is an act of ratification by the Chief of the action proposed by the CCRB, and, as herein discussed, the officer will have had the opportunity to respond to the proposed action as recommended by the CCRB. *fn21
Appellant also argues that the terminology in the CMPA describing the notice to the employee as bringing "charges" against the employee would make no sense in the context of the CCRB Act, in which the CCRB would already have received a complaint and made a recommendation regarding proposed disciplinary action. Appellant contends that at that stage, it makes no sense to "initiate adverse actions." Looking at the CCRB Act as a whole, however, leads to a different Conclusion. Prior to the CCRB's recommendation, the CCRB is merely investigating a complaint. That the employee is "charged" only after the CCRB makes its recommendation is not an unreasonable way to view the language of the CMPA. The CCRB Act does not empower the CCRB to bring charges against employees; it empowers them to make recommendations to the Chief. It appears true, to be sure, that the investigation of the complaint provided by the CCRB Act constitutes the functional equivalent of the officer's right to respond to the "charges" contained in the CMPA notice, but this is no reason to read the terminology in the two Acts as proving irreconcilability. *fn22
It may fairly be said, however, that the OEA, having adopted the basic principle that the CMPA is not superseded for all purposes in its applicability to disciplinary proceedings within the agency, does not in its decision treat in detail the precise manner in which various areas of conflict between the two Acts may be reconciled. Reviewing only the language of the OEA's decision, we would find difficulty in determining precisely how the OEA intended the CMPA and its corresponding regulations to be reconciled in a subordinated manner to the controlling provisions of the CCRB Act. In particular, we would find it difficult to discern how and when the OEA contemplates that notice of the "proposed action" will be given in accordance with the CMPA. As a corollary of this issue, it would be difficult to discern from its order how the OEA intends to handle situations where the Chief increases or decreases the sanction from that proposed by the CCRB. The broad statement by the OEA that the CCRB Act repeals the CMPA to the extent of reducing the time limitations does not squarely address these important issues and is not sufficient to enable the MPD to carry out its functions under the two acts.
Fortunately, the recommendations of the four hearing examiners that initially heard the appeals to the OEA provide a more thorough understanding of what the OEA's decision under review intended. Because the OEA affirmed the recommendations of the hearing examiners and indicated agreement therewith, we look to those recommendations for guidance in understanding the intent of the OEA in its final order. *fn23
The hearing examiners' recommendations, as we understand them, envision that the recommendation of the CCRB, notice of which is sent to the employee at the same time that it is sent to the Chief, D.C. Code § 4-903(b)(3), constitutes the notice to the employee of the charges and the proposed disciplinary action as contemplated by the CMPA. The CMPA requirement of an opportunity to respond to the charges themselves will have been satisfied by the CCRB Act procedures, particularly since the officers here had a full opportunity to participate in the hearing before the CCRB. *fn24 The employee will have at least ten days to respond to the Chief with respect to the disciplinary action recommended by the Board. *fn25 Within thirty days after receipt of the recommendation of the CCRB, the Chief must take action. The Chief's choices of action are to send the matter to a police trial board, to agree with the recommendation of the CCRB and implement such recommendation, or to send the Chief's own recommendation (either an increase or a decrease) to the Mayor for the Mayor to decide between the CCRB's recommendation and the Chief's recommendation, or to decide on compromise discipline. If the Chief follows the recommendation of the CCRB, then everything required by the CMPA has been satisfied. *fn26 If the Chief makes a recommendation for an increase in the proposed discipline, which he must forward to the Mayor, the officer should have an opportunity to comment on the proposed increase. *fn27 (In the CMPA, the final decision maker cannot increase the proposed sanction, so the need to respond to a proposed increase does not arise.) If the Chief does not act at all within the required thirty-day period, this, too, can be reconciled with the CMPA. In that case, the Chiefs inaction is a ratification of the CCRB's findings and recommendations, upon which the officer has had the chance to comment.
Accordingly, the OEA's decision, interpreted in accordance with this opinion and leaving open for future resolution those points not explicitly resolved therein, is
FARRELL, Associate Judge, Concurring: I join the court's opinion because of the express language of D.C. Code § 4-902 (c), "maintain" all rights provided by the CMPA "as amended by this chapter . . . ." Even so this is an exceedingly close case, because the CCRB Act bears all the earmarks of a comprehensive statutory scheme designed to supplant, not merely "amend," the CMPA as regards civilian-initiated charges of police misconduct. I am comfortable in the result because in the end the CMPA's notice and response requirements -- severely limited in their application here -- should not impair operation of the CCRB Act. See ante at 18 n.25.