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District of Columbia Metropolitan Police Department v. District of Columbia Public Employee Relations Board

Court of Appeals of Columbia District

August 4, 2016

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellant,
v.
DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, Appellee, and FRATERNAL ORDER OF POLICE METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE, Intervenor.

          Argued January 15, 2016

         On Appeal from the Superior Court of the District of Columbia Civil Division (CAP-9192-12)(Hon. Judith N. Macaluso, Trial Judge)

          Donna M. Murasky, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellant.

          Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P. Carlton were on the brief, for appellee.

          Marc L. Wilhite for intervenor.

          BEFORE: Fisher and Beckwith, Associate Judges; and Steadman, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the order on appeal is affirmed.

          OPINION

          JOHN STEADMAN SENIOR JUDGE.

         The Metropolitan Police Department (MPD) proposed to terminate the employment of an officer because of off-duty misconduct. However, an adverse action panel (AAP), after a hearing, recommended a penalty of only a thirty-day suspension. The issue before us is whether the MPD was nonetheless free to reject that recommendation of the AAP and instead to terminate the officer's employment. The District of Columbia Public Employee Relations Board (PERB) ruled that the MPD could not do so. We conclude that this was a reasonable interpretation of the controlling regulations and therefore affirm the order on appeal.

         I. Statement of Facts

         MPD Officer Crystal Dunkins was charged in Maryland with several crimes for abusing her two children. She pleaded guilty to one count of confining an unattended child in exchange for a sentence of five years of probation and the state dropping the remaining charges. Reviewing these developments, MPD, through then Assistant Chief of Police Shannon P. Cockett, issued a Notice of Proposed Adverse Action, charging Officer Dunkins with conduct unbecoming an officer and conduct constituting a crime. The proposed penalty was termination.

         Officer Dunkins requested a Departmental Hearing before an AAP. The AAP found her guilty of the MPD charges but recommended a thirty-day suspension as the appropriate penalty instead of termination. Assistant Chief Cockett found AAP's recommendation "inconsistent with the misconduct, " and imposed the original proposed adverse action of termination.

         Officer Dunkins unsuccessfully appealed her termination to the Chief of Police, and then initiated arbitration proceedings, pursuant to a collective bargaining agreement, to review, inter alia, whether "the [Assistant Chief of Police] had the authority to impose the penalty proposed in the Notice rather than the [AAP's] recommendation[.]" The arbitrator ruled that 6-A DCMR § 1001.5, 18 D.C. Reg. 417 (Feb. 7, 1972) (§ 1001.5) was the controlling regulation ...


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