Appeal from the Superior Court of the District of Columbia (CAP-7006-07) (Hon. Ronna Lee Beck, Trial Judge)
The opinion of the court was delivered by: Terry, Senior Judge:
Submitted February 25, 2010
Before PRYOR, TERRY, and STEADMAN, Senior Judges.
Appellant, Anthony Brown, appeals from an order of the Superior Court which denied review of a decision by the Public Employee Relations Board ("PERB") terminating his employment with the Metropolitan Police Department. He argues that the PERB lost jurisdiction over his case when it took more than the 120 days allowed by statute to issue a decision. He also contends that, because the so-called Douglas factors*fn1 were not considered by the arbitrator in his final decision, the penalty determination should be reversed. We reject the first argument on the merits, decline to consider the second because it was not raised below, and affirm the trial court's order.
Appellant joined the Metropolitan Police Department ("MPD") on March 18, 1985, and served for fifteen years as a police officer. During that time he received several favorable commendations for his service. The actions leading to his termination began after he separated from his wife in June of 1998, after nearly four years of marriage.
Appellant admitted that after their separation he telephoned his wife daily, attempted to see her at her residence in July of 1998, and obtained her telephone and pager records in an effort to find out whether she was seeing another man. In November of 1998 appellant's wife brought criminal charges against him in Maryland for these acts and applied to the Maryland court for an order of protection.*fn2 An arrest warrant was issued on the criminal charges, leading Mr. Brown to turn himself in to the sheriff's department in Prince George's County, Maryland. Soon thereafter he was released on bond.
The couple had no further contact until January 1, 1999, when Mr. Brown went to his wife's residence to see her. This encounter ended with mutual allegations against each other: she claimed that he put her in a choke hold, and he claimed that she sprayed him with mace. On April 23, 1999, both of the Browns appeared in the District Court of Prince George's County for adjudication of all the criminal charges against Mr. Brown. He was found not guilty of assault, and the remaining charges were dismissed.
Along with the criminal charges against him, Mr. Brown was subjected to three adverse actions by the MPD. These actions were based on (1) the July 1998 allegations that he had left threatening phone messages for his wife, appeared at his wife's house and, when she would not allow him in, brandished his weapon; (2) the November 1998 arrest for telephone misuse in repeatedly calling his wife over her objection; and (3) the January 1999 charge of assaulting his wife. The MPD later amended its proposed adverse actions to include charges of making untruthful statements to superiors and committing acts that would constitute a crime under Maryland law.
An adverse action panel was convened on August 21, 1999, to consider Mr. Brown's case. After a hearing, it found that he had continually telephoned his wife, over her repeated requests for him to stop, and that this misuse of the telephone constituted a crime. The panel also found, however, that Mr. Brown did not brandish his pistol during his July attempt to see his wife. The panel concluded that Brown was guilty of (1) conduct unbecoming an officer and (2) commission of an act that would constitute a crime. Although several of Mr. Brown's supervisors and fellow officers testified on his behalf, urging that he be returned to duty, the panel recommended his termination. Brown's administrative appeal was rejected, and he was discharged from the police department.
After Brown's discharge, the Fraternal Order of Police/MPD ("FOP/MPD") Labor Committee submitted his case to arbitration. The arbitrator ruled that procedural rules had been violated when Mr. Brown's request to appeal from the initial decision had not been answered within fifteen days. Because of this error, the arbitrator in March 2001 issued an award reinstating Mr. Brown to the police department. This award was contested by the MPD, but the PERB found no statutory basis for setting aside the arbitrator's award and rejected the MPD's challenge.*fn3 The MPD then filed a petition for review with the Superior Court, which concluded that the arbitrator had exceeded his authority when he rescinded Brown's termination solely because of the violation of the fifteen-day rule. Subsequently, the PERB remanded the case to the arbitrator for a decision on the merits.*fn4
On remand, the arbitrator agreed with the panel's original finding that Brown had engaged in conduct unbecoming an officer when he made calls to his wife on a daily basis after they had separated. Possible penalties for this violation ranged from a three-day suspension to removal from the police force. After considering the appropriate remedy in light of the factors outlined in the Douglas decision, supra note 1, the arbitrator concluded that a suspension of 120 days was appropriate. The arbitrator also considered whether Brown's phone calls to his wife violated Maryland's criminal statutes, for which the only penalty available was termination. He found, however, that the record did not reflect the requisite intent "beyond a reasonable doubt" because "the evidence more strongly suggests . . . attempting to effect a reconciliation . . . and sort through his suspicions of her having an extramarital affair."
The MPD once again challenged the arbitrator's decision by filing a petition for review with the PERB on September 10, 2003. More than a year later, on November 24, 2004, the PERB granted the request for a review of the arbitration. The PERB subsequently ruled that the arbitrator had incorrectly required the facts to support the criminal charges "beyond a reasonable doubt," even though the MPD's regulations required proof only by a "preponderance of the evidence." The PERB also found no support for the arbitrator's assertion that specific intent must be proved to sustain a disciplinary charge based on a criminal act. The case was remanded once again to the arbitrator for application of the appropriate standard of proof on the second charge. On December 29, 2004, the arbitrator ruled that Brown's misuse of the telephone to harass his former wife was a criminal act, for which the sole applicable penalty was termination.
Because the arbitrator's decision on remand did not include a mitigation analysis, the FOP/MPD Labor Committee filed a petition for review with the PERB on January 24, 2005. More than two years later, on September 21, 2007, the PERB denied that request and affirmed the arbitrator's decision. The Labor Committee sought further review in the Superior Court, but the court denied the Committee's petition, rejecting the argument that the PERB's jurisdiction lapsed after it exceeded the 120-day deadline for decisions set by D.C. Code § 1-617.14 (2001). The court also found that Mr. Brown (i.e., the Labor Committee) had failed to object to the arbitrator's jurisdiction on remand, thus waiving any ...