Argued February 4, 2015
[Copyrighted Material Omitted]
Appeal from the Superior Court of the District of Columbia. (CAB-7096-11). (Hon. Anthony C. Epstein, Trial Judge).
Daniel J. McCartin, with whom Anthony M. Conti was on the brief, for appellants.
Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellees.
Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
Fisher, Associate Judge:
Metropolitan Police Department (" MPD" ) officers Jose Rodriguez, Andrew Zabavsky, and Benjamin Fetting sued the District of Columbia and other defendants for alleged violations of the Whistleblower Protection Act (the " WPA" ). The trial court rejected those claims, granting summary judgment to the defendants. The officers now appeal from that order and also assert that the court abused its discretion by denying their motion for leave to amend their complaint. Because no reasonable juror could have found that appellants made protected disclosures, or that prosecutors from the Office of the Attorney General (" OAG" ) either issued illegal orders to appellants or interfered with Zabavsky's right to furnish information to the Council of the District of Columbia (the " Council" ), and because, as we explain below, the proposed amendment to appellants' complaint would have been futile, we affirm.
The WPA was enacted to safeguard " the public interest [that] is served when employees of the District government are free to report waste, fraud, abuse of authority, violations of law, or threats to public health or safety without fear of retaliation or reprisal." D.C. Code § 1-615.51 (2001). It prohibits a supervisor from taking or threatening to take a " prohibited personnel action" against a government employee or otherwise retaliating because of the employee's " protected disclosure" or his refusal to comply with an " illegal order." D.C. Code § 1-615.53 (a) (2001). It further provides that no person shall " interfere with or deny the right of employees . . . to furnish information to the Council." D.C. Code § 1-615.53 (b) (2010 Supp.). To protect these rights, the WPA established a civil cause of action, allowing aggrieved employees to seek monetary and equitable relief. D.C. Code § 1-615.54 (a)(1) (2010 Supp.).
Appellants claim that they made protected disclosures which reported gross mismanagement, violations of law, and gross misuse of public resources by OAG and MPD in connection with the District's program to combat impaired driving. They also claim that they refused to comply with unlawful orders by OAG prosecutors directing them to limit or " alter" their trial testimony. According to appellants, supervisory employees at MPD and OAG retaliated by instigating misconduct investigations against them and denying them promotions. Officer Zabavsky also contends that OAG interfered with his right to furnish information to the Council about the District's response to problems with its
breathalyzer instruments. We discuss these facts at more length below.
II. Factual and Procedural Background
In the District, three charges penalize impaired driving: driving under the influence (" DUI" ), driving while intoxicated (" DWI" ), and operating while impaired (" OWI" ). See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I)-(II), (b)(2)(A) (2010 Supp.) (repealed 2013) (currently D.C. Code § § 50-2206.11, -2206.14 (2014 Repl.)). DWI is distinguished from the other two charges because it is a per se offense, meaning a defendant may be convicted by mere proof that he was operating a vehicle while the concentration of alcohol in his blood, breath, or urine met or exceeded a certain level. See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I) (currently D.C. Code § 50-2206.01(9)(A)(i) (2014 Repl.)). MPD officers often used Intoxilyzers--devices for measuring the concentration of alcohol in a subject's breath--to determine whether a motorist was violating the DWI statute.
On February 3, 2010, MPD discovered that some of its Intoxilyzers were reporting inaccurate results. MPD immediately suspended the use of all Intoxilyzers, instructing officers not to use them pending recertification. In cases where officers had used Intoxilyzers, OAG decided not to pursue DWI charges and instead proceeded with DUI and OWI charges, which do not require proof of breath-alcohol content. OAG continued to prosecute for DWI in cases where urine tests had been performed.
A. Zabavsky's Email to Fellow MPD Officers
About a week and a half after the problem with Intoxilyzers was discovered, an MPD sergeant emailed several officers, including Zabavsky and Rodriguez, notifying them that recertified Intoxilyzers were available. The next day, Zabavsky learned that OAG was still not bringing DWI charges, even in cases involving the recertified Intoxilyzers. On February 22, in a reply to the sergeant's email, Zabavsky shared this information with other officers. He expressed frustration about " why MPD [was] keeping [officers] in the dark" and suggested that the officers use the equipment at other law enforcement agencies (such as the Capitol Police or U.S. Park Police) for breath testing.
B. Request to Limit In-Court Testimony
Over the next few months, more information about the Intoxilyzers became available. On February 25, the Mayor issued a press release alerting members of the public to the problem and informing them that an investigation was underway. Representatives from MPD and OAG also notified the D.C. Courts, the D.C. Superior Court Trial Lawyers Association, and the Public Defender Service about the situation. News outlets reported that the Intoxilyzers had compromised nearly 400 convictions, some dating as far back as 2008.
Because " [t]here were all sorts of rumors" floating around about " whether the motors went bad, [or] whether somebody physically . . . tinkered with the instruments," MPD officers " were being pressed about" the Intoxilyzers in court. For impeachment purposes, defense attorneys tried to introduce testimony that officers had signed certifications generated by the Intoxilyzers which later turned out to be false. OAG attorneys argued that testimony about the devices was neither relevant nor material because they " weren't using the MPD Intoxilyzer scores in any of [their] cases."
To keep information that they believed was irrelevant and potentially inaccurate out of their trials, line prosecutors urged appellants to limit their testimony about the Intoxilyzer investigation to first-hand knowledge. For example, one OAG attorney told Rodriguez, " [y]ou can't testify to something that you don't know." The prosecutors explained that, because appellants were not personally involved in the Intoxilyzer investigation, their testimony would be hearsay. Appellants viewed things differently, however. They believed that they did know about the investigation because they had had " conversations with some people about [it]" ; " the word was already out and everything and [they] kind of knew about it." When prosecutors advised them to " just say [I] don't know," they refused to " lie."
C. Young Matter Referred to Internal Affairs
In July 2010, Deputy Attorney General Robert Hildum referred a matter involving Zabavsky and Rodriguez, and possible tampering with evidence, to MPD's Internal Affairs Division (" IAD" ). Four months earlier, the officers had arrested a female suspect, Terran Young, for impaired driving and obtained a urine sample from her. The officers' report stated that a female officer had witnessed the giving of the sample, in accordance with MPD protocol, but also noted that the container was wet and cold, an indicator that toilet water may have been splashed into it.
A toxicology report revealed that the amount of alcohol in Young's urine was less than .02 grams of ethanol per 100 milliliters of urine, well below the DWI threshold of .10 grams. See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I). OAG believed that the urine sample had been diluted; but if an officer had monitored the collection of the sample, as Zabavsky and Rodriguez reported, Young could not have diluted the sample. This discrepancy raised concerns about the veracity of the officers' report. Hildum decided to refer the matter to IAD for investigation because, " [i]f [OAG] didn't do anything," defense attorneys might make allegations that the officers had lied, and " [OAG] might be accused of covering up a problem."
D. Establishing a New DWI Program
Three months later, Assistant Chief Patrick Burke selected Zabavsky and Rodriguez to attend training on breath-testing and to assume leadership roles in MPD's new DWI program. However, Burke later learned from OAG that Zabavsky and Rodriguez were under investigation for evidence tampering. Assistant Chief Michael Anzallo (the leader of IAD) advised Burke to find other officers. Although Zabavsky and Rodriguez's " infraction [might] turn out to be [minor]," the investigation involved their " veracity" and " the program [needed] to be very clean." Burke decided to rescind his offers to Zabavsky and Rodriguez. He next selected ...