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District of Columbia Metropolitan Police Dep't v. District of Columbia Public Employee Relations Board

June 29, 2006

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT,
v.
DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAP8-04) (Hon. Neal E. Kravitz, Trial Judge.

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

Argued May 24, 2006

Before FARRELL and RUIZ, Associate Judges,and SCHWELB, Senior Judge.*fn1 Opinion for the court by Associate Judge FARRELL.

Opinion by Senior Judge SCHWELB, concurring in the judgment, at p. 11.

The Metropolitan Police Department (MPD) appeals from an order of the Superior Court in turn affirming a decision by the District of Columbia Public Employees Relations Board (PERB) which sustained an arbitrator's dismissal of misconduct charges that had resulted in MPD's discharge of Angela Fisher, an MPD police officer. For the reasons that follow, we affirm the order of the Superior Court.

I.

On April 6, 2001, following a hearing by an MPD Adverse Action Panel, Fisher was discharged for off-duty misconduct in June 1998 in Maryland and for false statements she made to MPD investigators about what had occurred on that date. In accordance with a collective bargaining agreement (the Agreement) between the Fraternal Order of Police (FOP) and MPD, the FOP -- on Fisher's behalf -- sought arbitration of the discharge decision. The FOP argued, in part, that the MPD panel's decision had come too late under Article 12, Section 6 of the Agreement. The arbitrator agreed. Without rehearing the evidence or disputing MPD's findings with respect to the misconduct, he found that "roughly 600 days" had elapsed between when the MPD panel convened to hear the charges against Fisher and when it issued its decision and recommended her discharge, and that this "extraordinary delay beyond the 55-days allowed for the [MPD] to provide [Fisher] a written decision . . . clearly violates the mandate of that provision."*fn2 He further rejected MPD's position that any violation of the 55-day rule was non-prejudicial or "harmless error," stating:

Section 6 is plainly intended to provide grievant with reasonably prompt notice of her status after charges are preferred against her, unless she waives entitlement to such notice. . . . [T]he right [Fisher] here asserts was a bargained-for procedural right which created in essence a substantive right[, . . . and] failure to issue the decision within the 55 days, as pr[e]scribed, must be viewed as harmful error. [Citation and internal quotation marks omitted.]

The effect of the arbitrator's ruling was to require reinstatement of Fisher with back pay.*fn3

MPD appealed the arbitrator's decision to PERB, see D.C. Code § 1-605.02 (6) (2001), which affirmed. PERB explained in part:

We have held that an arbitrator's authority is derived from the parties' agreement and any applicable statutory and regulatory provision. . . . In addition, we have held that by agreeing to submit the settlement of a grievance to arbitration, it is the [a]rbitrator's interpretation, not the Board's that the parties have bargained for. . . . MPD . . . claims that the [a]rbitrator's [a]ward is contrary to law and policy[, but w]e have held that a disagreement with the arbitrator's interpretation . . . does not make the award contrary to law and public policy. . . . In the present case, MPD's claims involve only a disagreement with the [a]rbitrator's interpretation of Article 12, Section 6 of the [Agreement;] . . . MPD has failed to point to any clear or legal public policy which the [a]ward contravenes. [Internal citations, quotation marks, and brackets omitted.]

On MPD's petition for review of PERB's decision in the Superior Court, that court affirmed, agreeing with PERB "that an arbitrator . . . act[s] within [his] authority by imposing a penalty upon MPD [for violation of Article 12, Section 6] without first making a finding of harmfulness."

This appeal ...


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