Before Terry, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Linda Turner Hamilton, Trial Judge) (Hon. Russell F. Canan, Trial Judge)
On May 9, 1993, appellee Adelaide Okyiri was removed from her position as the head of the Budget and Fiscal Department of the District of Columbia Public Library (DCPL). Dr. Hardy Franklin, then the DCPL's Director, ordered Ms. Okyiri's removal after having found, following the institution of an adverse action, that Ms. Okyiri had engaged in insubordination and inexcusable neglect of duty.
Ms. Okyiri challenged her termination in an administrative proceeding before the Office of Employee Appeals (OEA). On June 19, 1995, following an evidentiary hearing that lasted four days, an Administrative Law Judge (ALJ) of the OEA issued a written decision in Ms. Okyiri's favor and ordered that Ms. Okyiri be restored to her position with back pay. The ALJ's decision was affirmed by the OEA, and the OEA's decision was in turn affirmed by Judge Russell F. Canan of the Superior Court.
Ms. Okyiri also brought a civil action against Dr. Franklin pursuant to the District of Columbia whistleblower statute then in effect, D.C. Code § 1-616.3 (1992). *fn1 On June 13, 1996, following a lengthy trial, Judge Linda Turner Hamilton issued a written order in which she sustained Ms. Okyiri's allegations and granted relief similar to that awarded in the administrative proceeding. The Judge also held that Ms. Okyiri was entitled to recover reasonable counsel fees.
The DCPL *fn2 has appealed from the orders of Judge Canan and Judge Hamilton, and the appeals have been consolidated by order of this court. The DCPL contends that the evidence in both cases sustained the allegations of insubordination and inexcusable neglect on Ms. Okyiri's part, that the DCPL acted in accordance with its managerial prerogatives in discharging Ms. Okyiri, and that both courts and the OEA committed legal error in holding to the contrary. The DCPL also claims that Judge Hamilton's factual findings in the whistleblower case are not supported by the evidence and that the Judge applied an erroneous legal standard in relation to the burden of proof.
With respect to each of the decisions on appeal, for the reasons stated below, we conclude that there was ample evidence to support the findings of the trier of fact. In each case, however, these findings may have been induced by a legally erroneous assessment of the evidence of inexcusable neglect of duty. Accordingly, we vacate each judgment and remand for further proceedings.
Ms. Okyiri became the head of the DCPL's Budget and Fiscal Department, a DS-14 position, in December 1991. She came to the job with excellent qualifications. A career civil servant, Ms. Okyiri held a master's degree in finance and investments. She was also a licensed CPA, and she had ten years of experience as a financial officer for various District of Columbia agencies. The ALJ found that "[t]he employee's record of work for the District was spotless until she came to the library."
Upon assuming her duties and examining the DCPL's books of account, Ms. Okyiri concluded that the agency did not have adequate financial controls to prevent theft, and she suspected that money had in fact been stolen. Ms. Okyiri also discovered that the DCPL had commingled funds in various accounts and that contractors had sometimes been paid under expired contracts or pursuant to informal agreements. Ms. Okyiri further observed that some contractors had been chosen on a non-competitive basis and appeared to be on personally friendly terms with Dr. Franklin or with other DCPL officials. The OEA found that "[i]n order to eliminate these problems, [Ms. Okyiri] was determined to implement sound financial practices."
Ms. Okyiri's efforts in this regard, apparently coupled with what some DCPL employees regarded as a somewhat unbending and perhaps prickly personality, brought her into conflict with a number of her supervisors and colleagues. Dr. Franklin testified that Ms. Okyiri had little regard for her co-workers, superiors or established procedures. It was in the resulting less than cordial atmosphere that the allegations against Ms. Okyiri of insubordination and dereliction of duty arose.
(2) The Greenlee voucher.
Marcia Greenlee, Ph.D., was an independent contractor for the DCPL who specialized in historic preservation and black history. Ms. Okyiri discovered that, over the past several years, Dr. Greenlee had received several sizable consulting contracts from the DCPL on a non-competitive basis. The last of these contracts, which had been agreed to in June 1991, provided that Dr. Greenlee would receive compensation at the rate of $300 per day, and total remuneration not to exceed $21,000, as a consultant on oral history.
Ms. Okyiri also noticed that, unlike other contractors, Dr. Greenlee had an office in the main library, worked regular government hours, used DCPL supplies, attended executive meetings, and frequently had lunch with Dr. Franklin and with Dr. Franklin's then executive assistant (and now successor), appellant Mary E. Raphael. Moreover, Dr. Franklin had requested Dr. Greenlee to coordinate the Martin Luther King gala, an event which was funded by the American Library Association (ALA), a private organization. Dr. Franklin was seeking (and later secured) the presidency of the ALA, and Ms. Okyiri was concerned that DCPL funds might have been used for the gala. All of these circumstances made Ms. Okyiri "increasingly suspicious" of the relationship between DCPL and Dr. Greenlee and about the possibility that the DCPL was being charged for work Dr. Greenlee was doing for the ALA on the gala.
On December 8, 1992, Dr. Greenlee submitted an invoice requesting that the DCPL pay her $3600 for services rendered on her consulting contract. Dr. Greenlee included with her invoice a statement detailing the services that she had performed during the billing period, but no supporting documentation. Ms. Raphael, the contract administrator, approved the invoice and forwarded a voucher to Ms. Okyiri to sign as certification officer. Ms. Okyiri had previously approved invoices submitted by Dr. Greenlee. On this occasion, however, she declined to sign the voucher because "I knew it was a duplicate bill. I felt it. I could tell. I could smell it." A member of Ms. Okyiri's staff, acting at Ms. Okyiri's direction, telephoned Dr. Greenlee and advised her that payment would be delayed until Ms. Okyiri could inspect the work product reflected in the billing.
Dr. Greenlee responded to this telephone call by notifying Ms. Raphael that "I have made no response to Ms. Okyiri, nor do I intend to." Instead, Dr. Greenlee asked Ms. Raphael to handle the matter. Ms. Okyiri and Ms. Raphael were not on speaking terms at the time, and the problem was brought to Dr. Franklin's attention. Dr. Franklin met with Ms. Okyiri and orally ordered her to approve Dr. Greenlee's voucher. Indeed, according to a memorandum written by Ms. Okyiri which was credited by the ALJ, Dr. Franklin instructed her that so long as Ms. Raphael, the contracting officer, *fn3 was satisfied with the invoice, "no supporting documentation is necessary and no questions should be asked."
Ms. Okyiri persisted in her refusal to sign the voucher. In a memorandum dated February 17, 1993, she directed Dr. Franklin's attention to Mayor's Memorandum 83-68, which provides that before approving a payment, certification officers shall, inter alia:
Confirm that the payment is permitted by law and is in accordance with the terms of the applicable agreement; . . .
Ascertain that the payment to be made is not a duplication; . . . and
Ascertain that the proper forms of documentation (invoices, bills, statements of account) were used to support the payment. . . .
The memorandum further states that certification officers will
(1) Be held responsible for the existence and correctness of the facts recorded in the certificate or otherwise stated in the voucher or its supporting papers, including the correctness of computations on such voucher, and for the legality of the proposed payment under the appropriation or fund involved[; and]
(2) Be held responsible for and required to make good to the United States or to the District of Columbia the amount of any illegal, improper, or incorrect payment resulting from any false, erroneous, or misleading certification made by him as well as for any payment prohibited by law or which did not represent a legal obligation under the appropriation or fund involved.[ *fn4 ]
Ms. Okyiri offered to approve Dr. Greenlee's voucher if Dr. Franklin advised her in writing that the Mayor's Memorandum should be ignored. Dr. Franklin responded five days later with a memorandum in which he did not address the Mayor's directive but reiterated his insistence that Ms. Okyiri sign the voucher if Ms. Raphael told her that it was acceptable. Ms. Okyiri was ordered to approve the voucher no later than February 26, 1993.
On March 16, 1993, the DCPL's legal counsel issued an opinion in which he concluded that the voucher had been sufficiently documented and that the agency was therefore obliged to pay for Dr. Greenlee's invoices. This opinion, however, was never brought to Ms. Okyiri's attention. Two weeks later, in a letter to Ms. Raphael, Dr. Greenlee stated that payment for her services was long overdue, and that if the matter was not resolved promptly, Dr. Greenlee would be compelled to "explore other means of redress at my disposal." Ms. Okyiri nevertheless persisted in refusing to certify the invoice for payment. This refusal was the basis for the subsequent charge of insubordination in the adverse action instituted against her.
(3) The dispute over Form PL 456.
On February 26, 1993, only four days after ordering Ms. Okyiri to approve Dr. Greenlee's voucher, Dr. Franklin issued a "letter of warning" to her in connection with a separate alleged act of insubordination. The ALJ, the OEA, and the trial Judge all ultimately sustained Ms. Okyiri's grievance against this letter of warning, and the DCPL does not contest these rulings in the present appeal. The dispute is nevertheless relevant in that it sheds some light on the credibility of the various actors and on Dr. Franklin's motivation.
The subject of this controversy might be considered almost trivial. The DCPL was about to revise its financial control form, styled PL 456, which was used by employees who needed to purchase goods or services for the DCPL. Dr. Franklin did not like the proposed revision. He claimed that he had directed Ms. Okyiri not to discuss the revised form and not to permit Discussion of it at a forthcoming librarians' meeting. Dr. Franklin alleged in his letter of warning, and he subsequently testified before the ALJ, that Ms. Okyiri had allowed one of her subordinates to discuss implementation of the unauthorized revision of the PL 456 form, despite his instructions not to do so. He viewed her conduct as a "disregard for my directive [and] as a clear act of insubordination."
Ms. Okyiri denied that Dr. Franklin had told her not to discuss the revised form, and she and other witnesses testified that, in any event, the matter had not been discussed at the librarians' meeting. As the OEA pithily put it, Ms. Okyiri "accused Franklin of concocting the whole incident as a means of retaliating against her for her refusal to certify the Greenlee invoice." The ALJ, as the trier of fact, did not credit Dr. Franklin's testimony, and he absolved Ms. Okyiri of any culpability in this matter.
(4) The Bert Smith & Company letter.
In September 1992, Ms. Okyiri received a copy of a draft audit by the independent accounting firm of Bert Smith & Company in which it was indicated that in 1990 the DCPL may have overspent its federal funds by $75,000. By letter dated October 22, 1992, the District of Columbia Controller's office directed the DCPL to provide an explanation. Lawrence E. Molumby, the Deputy Director of the DCPL and Ms. Okyiri's immediate supervisor, requested Ms. Okyiri to provide him with relevant documents relating to the alleged overspending. Ms. Okyiri, who had not been with the DCPL in 1990, was apparently unable to do so. Ms. Okyiri suggested that the DCPL request the Controller's officer to obtain additional information from Bert Smith & Company. Mr. Molumby agreed, and on November 5, 1992, a letter was sent to the Controller under Dr. Franklin's signature requesting that additional information be obtained from the accounting firm.
On December 22, 1992, Bert Smith & Company mailed the requested information directly to Ms. Okyiri. Unfortunately, however, Ms. Okyiri "didn't pay much attention to [the envelope from Bert Smith & Company] when it arrived and left it sitting in her in-box." *fn5 Notwithstanding the potential importance of the information which the DCPL had been seeking - if there had been overspending, as alleged, then the DCPL could have been required to reimburse the federal government -Ms. Okyiri completely ignored the accounting company's letter for more than two months. Ms. Okyiri was not alone in her passivity; neither Dr. Franklin nor Mr. Molumby made any inquiry about the subject during this period. *fn6
On March 3, 1993, the Controller notified Dr. Franklin that Bert Smith & Company had provided the requested information to the DCPL on December 22, and that the DCPL had failed to provide any explanation of the alleged overspending. The Controller's letter was severe in tone and, in Mr. Molumby's words, "threaten[ed] some kind of extreme measure if we didn't get this cleared up." Mr. Molumby immediately asked Ms. Okyiri whether she was aware of any communication from Bert Smith & Company. Ms. Okyiri looked in her in-box and observed a large envelope. Remarking that "this must be it," she then handed Mr. Molumby the unopened package. Ms. Okyiri testified that the first time she was aware of the envelope was when Mr. Molumby inquired about the matter, and that "if I had seen it before it didn't register." *fn7 As it turned out, the letter from the accountants further revealed that the initial report was in error and that there had been no overspending in 1990. The DCPL therefore was not penalized or harmed as a result of the inaction of Ms. Okyiri and of her superiors.
Ms. Okyiri's explanation for leaving the unopened communication in her in-box from December through March was that she had been busy preparing the budget and, as she told Mr. Molumby, that "people make mistakes." She also claimed that the original of the document would ordinarily have been sent to Dr. Franklin, who had made the request to the Controller, and that she believed that the envelope sent to her contained only a courtesy copy. *fn8
(5) The proceedings against Ms. Okyiri.
On February 26, 1993, four days before the discovery of the Bert Smith & Company letter in Ms. Okyiri's in-box, Dr. Franklin issued the formal "letter of warning" accusing Ms. Okyiri of insubordination in relation to the Form PL 456 controversy.
On April 8, 1993, Mr. Molumby sent Ms. Okyiri a thirty-day notice proposing that she be removed for insubordination in connection with Dr. Greenlee's voucher and for inexcusable neglect of duty in connection with the Bert Smith & Company letter. The portion of the ...