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Zirkle v. District of Columbia

August 28, 2003


Appeal from the Superior Court of the District of Columbia (CA-6959-01) (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Terry, Reid, and Glickman, Associate Judges.

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

Argued March 4, 2003

Todd Zirkle appeals from the denial of his motion for a preliminary injunction. In that motion, appellant sought to prevent his employer, the District of Columbia Office of Tax and Revenue ("OTR"), from terminating his employment pending the outcome of his suit brought under the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. (2001) ("WPA"). *fn1 We affirm the trial court's denial of injunctive relief.


From February 2, 1998, to September 5, 2001, appellant was employed as the Supervisor of Major Property Tax Assessments in OTR, an agency within the Office of the Chief Financial Officer of the District of Columbia. Thomas Branham, after serving as the Chief Assessor for a period of time, became the Chief of Real Property Tax Assessments in OTR on August 1, 2001, and as such he became appellant's immediate supervisor. Above Mr. Branham was Henry Riley, the Director of the Real Property Tax and Assessments Division. Mr. Riley in turn reported to Herbert Huff, the Deputy Chief Financial Officer ("DCFO"). As DCFO, Mr. Huff was in charge of all personnel involved in the taxing function of OTR.

As Supervisor of the Major Properties Section, appellant was responsible for (1) directing the work of five assessors in connection with the annual appraisal process for "major properties" -- i.e., those valued in excess of $2 million --located principally in downtown Washington; (2) overseeing the informal first-level appeal process for major property taxpayers (described in detail hereafter); and (3) advocating OTR's position in taxpayer appeals before the District of Columbia Board of Real Property Assessments and Appeals ("BRPAA") and also before the Superior Court.

A. The Tax Assessment Process

Under D.C. Code § 47-820 (a)(3), *fn2 properties m ust be assessed on the basis of their "estimated market value" as of January 1 of the preceding tax year. "Estimated market value" is defined as "100% of the most probable price at which a particular piece of real property . . . would be expected to transfer under prevailing marking conditions . . . ." D.C. Code § 47-802 (4). Once assessments are made, there is a three-level appeal process consisting of (1) an inform al first-level appeal, *fn3 (2) an administrative h earing before the BRPAA, and (3) an appeal to the Superior Court of the District of Columbia. The hearing panel for a first-level appeal is usually com prised of three to five assessors. Appeals that proceed through the first level may result in an increase in the assessment, a decrease, or no change. By informal practice, a fourth option of "withdrawal" evolved among the assessors in the Major Properties Section. Under what came to be known as the "five o'clock rule," a property owner could withdraw a first-level appeal in writing before 5:00 p.m. on the day of the inform al hearing, thereby avoiding the risk of an increased assessment.

Following a first-lev el appeal hearing, a Decision Form was prepared which would set forth each contention by the taxpayer and OTR's response. Once this form was completed, appellant would review it for edits and judgment revisions. He would then circulate it among the assessors who took part in the hearing, and thereafter, unless there were additional edits proposed, the form would be signed by appellant and each assessor, entered into the Appeals Tracking System database, and then mailed to the appropriate parties or their representatives.

B. Appellant's Termination

In February 2001 the Committee on Finance and Revenue of the Council of the District of Columbia held oversight hearings, in which it heard testimony from representatives of the Apartment and Office Building Association of Metropolitan Washington ("AOBA"). AOBA's testimony was very critical of the first-level appeal process. It focused, in particular, on the perceived unfairness of OTR's practice of basing increases on information not considered when determining the initial assessment. This practice, according to AOBA, had a chilling effect on appeals. Soon after this hearing, DCFO Huff and Mr. Branham discussed ways to eliminate this perceived unfairness.

Months later, on August 15, 2001, at the direction of DCFO Huff, Mr. Branham approached appellant and expressed the view that increases on first-level appeals resulting from consideration of information which the assessors initially missed were "not a good idea," and that if the assessors missed the estimated market value in one tax year, they should leave it alone and increase it in the following tax year. Appellant disagreed with this philosophy, opining that a greater number of appeals would result because a taxpayer could now bring an appeal without risking an increase. Nevertheless, appellant and Mr. Branham agreed that the assessors should be permitted to continue with the first-level appeal process, make their decisions on estimated market value, and then sit down with Mr. Branham to review the evidence that supported the decisions.

Just over a week later, on August 23, appellant and Mr. Branham met again, this time to discuss three specific cases for which an increase appeared warranted after a first-level appeal hearing. One of the cases involved a significant assessment increase for a downtown office building. Mr. Branham acknowledged that the building had been underassessed, and that the first-level appeal decision would result in an increase in property taxes for that building. He then instructed appellant to contact the attorney who filed the first-level appeal to inform him of the increased assessment, and to offer the attorney an opportunity to withdraw the appeal. Appellant testified at the hearing below that he was "stunned" by this order and, without informing Mr. Branham, decided not to comply with it because he believed it to be illegal.

Some time later, appellant and Mr. Branham met again to discuss two other properties -- one at L'Enfant Plaza North and the other at Hamilton Square -- for which a first-level hearing had also resulted in increased assessments. Referring to the attorney for the Hamilton Square property, Mr. Branham said to appellant, "Why don't you call her? . . . Maybe I'll just call her." In response to Mr. Branham's call, the attorney sent a withdrawal letter for the Hamilton Square property. Appellant understood that ...

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