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District of Columbia Metropolitan Police Dept. v. Pinkard

June 20, 2002

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT
v.
ELTON L. PINKARD, APPELLEE



Appeal from the Superior Court of the District of Columbia (MPA-30-98) (Hon. Gregory E. Mize, Trial Judge)

Before Terry, Reid, and Washington, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Argued November 7, 2000

The Metropolitan Police Department (MPD) appeals from a Superior Court order affirming a ruling by the Office of Employee Appeals (OEA) that the MPD did not have cause to fire one of its officers, Elton Pinkard. An MPD trial board, after a hearing, terminated Pinkard on the ground that he had assaulted his former wife. When Pinkard appealed from his termination to the OEA, an OEA administrative judge reversed the trial board's decision and ordered that Pinkard be reinstated. That ruling was upheld by the OEA in an administrative appeal. The MPD then sought review in the Superior Court, but that court affirmed the decision of the OEA.

On this appeal from the Superior Court, the MPD contends (1) that an evidentiary hearing before the OEA administrative judge was precluded by a collective bargaining agreement between the MPD and the Fraternal Order of Police, a labor union to which Pinkard belongs, (2) that the OEA administrative judge abused her discretion in ordering a second evidentiary hearing, and (3) that there was not substantial evidence to support the OEA's findings. Because we agree that the collective bargaining agreement precluded any further fact-finding, we reverse the trial court's decision and remand the case to the OEA for further proceedings. *fn1

I.

This case originated in an altercation between Pinkard and his former wife, Victoria Richardson, at her home in Maryland. Ms. Richardson testified before the trial board that on January 19, 1987, Pinkard struck her in the mouth during an argument. After learning of this incident and the ensuing criminal prosecution, the MPD issued a notice of proposed adverse action, charging Pinkard with misconduct for (1) conduct unbecoming an officer and (2) conviction of a criminal offense. *fn2 Pinkard requested an evidentiary hearing before a trial board.

At that hearing Richardson testified that Pinkard was late in returning their children to her home, contrary to the visitation arrangement on which they had agreed. An argument ensued, during which Pinkard struck Richardson on the chin with his fist. Pinkard denied punching Richardson, stating that she pushed him first and that he pushed her back, inadvertently causing her injury.

Two other persons who were in the house at the time of the incident also testified. Frazier Ford, a carpenter who was doing some work in Ms. Richardson's basement, testified that he heard a bump, and then the front door slammed. When he ran up the stairs, he saw Ms. Richardson kneeling down, holding her mouth and crying. Fannie Bears, Ms. Richardson's sister, testified that she was upstairs when she heard a scream. She came down the stairs and saw Mr. Ford helping her sister to her feet. On cross-examination, Bears testified that Richardson had told her that she shoved Pinkard.

The trial board found that Richardson's injury was the result of a physical altercation between Pinkard and Richardson, that the injury did not appear to have been caused by a fall, and that although Richardson might have initiated some physical contact when trying to get Pinkard to leave her house, there was no evidence that her conduct was hostile or assaultive. It also found that Pinkard had been convicted of battery in the criminal proceeding that resulted from the incident. The trial board concluded that Pinkard was guilty of both charges of misconduct and recommended that his employment be terminated.

Pinkard appealed from the trial board decision to the OEA. At a status hearing before the administrative judge, the parties agreed that there would be no further fact-finding in the appeal. The MPD filed a motion requesting that the appeal be restricted to the existing record because the collective bargaining agreement (CBA) between the MPD and the Fraternal Order of Police required appeals to the OEA to be decided solely on the record established before the trial board. The administrative judge ruled that the parties to the CBA had no authority to preclude the OEA from conducting an evidentiary hearing, *fn3 but since neither party sought a new hearing, she agreed to render a decision based on the existing record.

After reviewing the record, the administrative judge reversed the trial board's decision. She held that Pinkard could not be found to have committed a crime because his plea of nolo contendere to the assault charge was not an admission of guilt under Maryland law. *fn4 She also found that she was unable to evaluate the credibility of the witnesses because the case was decided solely on the record, and, in light of the conflicting testimony, the MPD had failed to establish by a preponderance of the evidence that Officer Pinkard had struck Ms. Richardson in the face.

The MPD filed an administrative appeal within the OEA. In its petition the MPD noted the administrative judge's decision that the CBA could not limit her discretion to hold hearings, and argued, on the basis of that decision, that the administrative judge should have held a credibility hearing.

The OEA ruled, inter alia, that "[b]y regulation, the decision as to whether to hold a hearing is a matter within the discretion of the presiding official." It concluded that although the administrative judge was not required to hold a hearing, she erred by refusing to resolve issues of credibility simply because the case was decided on the existing record. *fn5 The OEA emphasized that if the demeanor of the witnesses was crucial to making a credibility determination, then the administrative judge should have conducted a hearing in order to develop the record fully. ...


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