Appeal from the Superior Court of the District of Columbia (00-MPA-15) (Hon. Stephanie Duncan-Peters, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before RUIZ and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
Appellant, Nathaniel Sims, a former employee of the District of Columbia, appeals from a decision of the Superior Court denying his petition for review of an order from the Office of Employee Appeals (OEA), which in turn affirmed a hearing examiner's determination that his grievance should be denied. He had sought relief from the OEA after he was terminated from a position as the Executive Director of the Educational Institution Licensure Commission and was reassigned at a lower salary to the position of program manager for the Water and Sewer Utilities Administration of the Department of Public Works. He contends that he was demoted in violation of the District's civil service laws. We disagree and affirm.
The relevant facts are essentially undisputed. Sims began working for the District of Columbia government in February 1973 in an Excepted Service position as an expert in the Office of Personnel. He continued to occupy various Excepted Service appointments with the District until April 1979, when he was terminated from his position as Chief Hearing Examiner for the D.C. Rental Accommodations Office. In September 1979, Sims was reinstated to the Excepted Service as an educational and training analyst with the Office of Licenses and Permits at Grade DS-13, Step 3. Sims still occupied this position when, on January 1, 1980, provisions of the Comprehensive Merit Personnel Act of 1978*fn1 (CMPA) became effective that automatically reclassified all District employees, with certain exceptions not here relevant, into the Career Service.*fn2 Under the relevant criteria, Sims's classification with the Office of Licenses and Permits changed from being in the Excepted Service to being in the Career Service. This change to the Career Service provided him with additional job security and procedural rights which prevented his demotion or termination except for cause, because of a reduction in force, or upon his knowing and voluntary waiver of his civil service rights.*fn3
At that time, the CMPA also gave the Mayor the discretion to appoint a limited number of persons - a maximum of 100 - to Excepted Service positions among subordinate D.C. agencies. D.C. Code §1-610.3 (1981). It specifically provided that these Excepted Service positions are meant to apply to employees "who report directly to the head of an agency" and "whose primary duties are of a policy determining, confidential, or policy advocacy character." D.C. Code §1-610.2 (1981). Excepted Service employees, unlike Career Service employees, are not subject to civil service requirements or protections, and thus do not have job tenure or the right to appeal termination of their employment. D.C. Code § 1-610.5 (1981). In order to insure that a Career Service employee does not lose his or her protections unknowingly, an employee in the Career Service cannot be moved into the Excepted Service unless the employee first signs a waiver of his Career Service rights.*fn4
Effective December 14, 1980, the Mayor appointed Sims to a position at pay grade DS-14, Step 1, ostensibly in the Excepted Service, as the Executive Director of the Educational Institution Licensure Commission (EILC), the body responsible for regulating private educational institutions in the District of Columbia. The authority cited for the appointment was D.C. Law § 1-104, the Education Licensure Commission Act of 1976, which allowed the Commission to "appoint such personnel as it deems necessary," and provided that "such positions shall be excepted."*fn5 Sims did not, however, sign a waiver relinquishing his Career Service rights and benefits. Nevertheless, the personnel action for effectuating this change clearly states that it is an "Excepted Appointment," and subsequent personnel action forms related to Sims's service in the EILC also identify his employment there as being in the Excepted Service.
Effective December 14, 1983, the chairman of the EILC promoted Sims, in his capacity as Executive Director, from pay grade DS-14 to DS-15. In May 1985, however, Sims's advancement to the DS-15 pay grade was rescinded on the grounds that the "authority to approve such action rests with the City Administrator [as the Mayor's designee], rather than the Chairman, EILC." See Sims I, supra,531 A.2d at 649. Sims sued in the Superior Court to enjoin the recision of his DS-15 pay grade and to enjoin the District from seeking to recoup the additional salary he had been paid while holding that grade. The Superior Court granted summary judgment in favor of the defendants, and Sims appealed to this court. The Sims I court framed the issue as follows: "The controlling question in this case is whether [the statutory] authority of the EILC to appoint (and hence to promote) its personnel survived the passage of the Comprehensive Merit Personnel Act . . . enacted two years after the establishment of the EILC . . . ." Id. at 649. Finding that "by the terms of the CMPA standing alone, the 'personnel authority' for the EILC is the Mayor," this court affirmed the Superior Court's award of summary judgment. Id. at 650--51.
On January 27, 1987, while Sims I was pending, Sims, who was still employed by the District of Columbia as the Executive Director of the EILC at pay grade DS-14, received written notice that he was being terminated from that position, effective February 14, 1987, and reappointed, effective February 15, 1987, to a lower-paying DS-13 Career Service position within the Water and Sewer Utilities Administration of the Department of Public Works (DPW). The grade (DS-13) and step (7) he was given at the DPW were the same level he would have attained if his appointment to the position of Executive Director of the EILC had never happened, and he had simply stayed in his same Career Service position throughout the relevant time period. Sims filed a grievance based upon these changes, which was denied. He then petitioned the OEA for review, and the proceedings that are the subject of this appeal followed.
Sims's basic contention is that the District of Columbia took an adverse employment action against him without providing him the benefit of protections to which he claims to have been entitled, and further, that it did so under the pretext that the position he occupied at the time was in the Excepted Service and therefore not subject to such protections. Under Sims's theory, his promotion to grade DS-14 as Executive Director of the EILC was valid, but the District's attempt to classify that position as being within the Excepted Service was not. He therefore claims that he held the position and its DS-14 grade not as an Excepted Service employee, but rather as a Career Service employee. As a result, he claims, he is entitled to back pay to make up the difference between the DS-14 grade - of which, he claims, he was improperly deprived for the period from 1987 to 1997 - and the DS-13 grade, for which he received pay. In addition, he seeks to have his pension payments, both retroactively and prospectively, recalculated to reflect that he retired in 1997 at grade DS-14.
Sims advances two broad arguments in support of these claims. The first is that the Mayor lacked the authority to appoint him to the Excepted Service because he had already exhausted his statutory allotment of discretionary appointments. The second is that procedural flaws rendered respondents's ...