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District of Columbia v. District of Columbia Office of Employee Appeals

September 15, 2005; as amended September 21, 2005

DISTRICT OF COLUMBIA, APPELLANT,
v.
DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS AND ROBERT L. JORDAN, APPELLEES.



Appeal from the Superior Court of the District of Columbia (MPA11-01) (Hon. Michael L. Rankin, Trial Judge).

The opinion of the court was delivered by: Washington, Chief Judge

Argued November 23, 2004

Before WASHINGTON, Chief Judge,*fn2 FARRELL, Associate Judge, and KING, Senior Judge.

In this case, appellant District of Columbia ("District"), on behalf of the Metropolitan Police Department ("MPD"), appeals an order of the trial court which affirmed appellee District of Columbia Office of Employment Appeals' ("OEA")*fn3 order in this case. The OEA reversed the MPD's removal of civilian employee Robert L. Jordan ("Jordan") on the basis that the MPD failed to take adverse action against Jordan within the statutory forty-five day time period set forth in D.C. Code § 1.617.1 (b-1)(2) (1992).*fn4 The District argues that the trial court erred in its interpretation of the statute and, thus, erred in its determination of when the forty-five day time period began to toll. We agree and reverse.

I.

Jordan, who was serving as Director of Personnel at MPD, was put on a thirty day suspension from June 1 to June 30, 1994, for driving home an agency vehicle in violation of MPD policy. During this time, Jordan applied for unemployment compensation benefits with the D.C. Department of Employment Services ("DOES"). Because Jordan was suspended, and not discharged, for misconduct, he was not eligible for such benefits. After Jordan returned to his employment at MPD, the MPD Office of Internal Affairs ("OIA") learned of Jordan's unauthorized unemployment compensation. On December 9, 1994, the director of OIA wrote a letter to the D.C. Inspector General, informing him that Jordan had received $1,675 in benefits and that the matter was under review by the U.S. Attorney's Office. The letter requested the Inspector General to "conduct an audit of the Department of Employment Services, Office of Unemployment Compensation records to determine the extent of unemployment compensation benefits paid to employees of the District of Columbia Government," specifically including Jordan.

On May 22, 1996, the Inspector General issued its report addressing Jordan's alleged fraudulent conduct, sending copies to the D.C. Office of Personnel, the MPD OIA, the United States Attorney for the District of Columbia, and the Director of DOES. The report stated that Jordan had indeed applied for and improperly received unemployment compensation during his period of suspension, but that he also continued receiving benefits after he was reinstated with full pay at the MPD.

On July 18, 1996, Agent Perry Soares of the OIA signed an affidavit seeking an arrest warrant for Jordan based on his alleged theft from the District of Columbia government. Jordan was arrested on August 8, 1996. On September 3, 1996, the MPD issued Jordan an advance notice that he was to be removed from his employment there.

After Jordan filed a petition for review with the OEA, an Administrative Law Judge ("ALJ") reversed the MPD's removal of Jordan. The ALJ held that the MPD failed to notify Jordan of his removal within the statutory forty-five day time frame set forth in § 1.617.1(b-1) (2), which was triggered by the close of a criminal investigation into an employee's cause for removal. The ALJ was unconvinced by MPD's argument that the criminal investigation was closed on August 8, 1996, the day Jordan was arrested. The ALJ stated that the forty-five day period was triggered rather on May 22, 1996, when the Inspector General issued its report. Specifically, the ALJ noted that the Inspector General's investigation "gave the Agency sufficient awareness of the matters underlying the charges against Employee to decide whether or not to commence adverse action." Thus, because Jordan was given notice of an adverse action on September 3, approximately seventy business days after the Inspector General closed its investigation, the ALJ found that the MPD's removal was untimely. The full OEA affirmed the ALJ's decision, reiterating the ALJ's point that the Inspector General's report made the Agency fully aware of Jordan's misconduct by May 22, 1996.

The District appealed to the trial court, which affirmed the OEA's decision. The trial court held that the forty-five day period within which the MPD was allowed to commence adverse action against Jordan was triggered by the Inspector General's comprehensive report. The trial court held that this report gave the MPD enough information to pursue an adverse action against Jordan and that it also "provided the United States Attorney's Office with probable cause for an arrest warrant." Furthermore, the trial court stated:

That the Assistant United States Attorney did not apply for the warrant for employee's arrest until July 16, 1996 is irrelevant: petitioner failed to produce any evidence showing that the criminal investigation continued between May 22, 1996 and July 16, 1996. As such, the date of the Inspector General's report is the date signifying the close of the criminal investigation and, thus, the date lifting the toll.

Therefore, since July 16 was the end of the criminal investigation, the trial court held that the agency did not meet the forty-five day period within which it had to commence the adverse action.

II.

On appeal, the District argues that the trial court erred in interpreting the statute because a criminal investigation was still ongoing at least until July 18, 1996, when a warrant was issued for Jordan's arrest. The District challenges the trial court's contention that it had enough information on May 22, 1996, to pursue an adverse action against Jordan. The District states that after the Inspector General's report, the U.S. Attorney's Office had to review the evidence and determine the proper charges against Jordan. Because the investigation was still ongoing until the time when Officer Soares from the MPD filed an affidavit in support of ...


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