E-Alert Case Updates

D.C. Chief of Police Permitted to Demote Commanders Even Without Cause

Burton v. Office of Employee Appeals; Hoey v. Office of Employee Appeals
Case Nos. 10-CV-1493; 10-CV-963 (D.C. Court of Appeals, November 3, 2011)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion, the Court of Appeals for the District of Columbia affirmed the Superior Court for the District of Columbia decision upholding Office of Employee Appeals (“OEA”) action. Specifically the OEA issued decisions that Commanders in the Metropolitan Police Department (“MPD”) could be demoted to the rank of Captain without cause under D.C. law.

This opinion addressed two separate cases filed by former Commanders in the MPD, Hilton Burton and Robin Hoey. The Court authored one opinion as the issues raised by the claimants were essentially identical. In 2007, Chief of Police Cathy Lanier informed Commander Hoey that he was being returned to the position of Captain. In 2008, Chief Lanier returned Commander Burton to the position of Inspector.

Each claimant argued that his demotion was in violation of D.C.’s Comprehensive Merit Personnel Act, D.C. CODE § 1-601.02 (b)(2001), a statute that provides a merit-based system for selecting, evaluating, and retaining MPD employees. The statute provides for two classes of employees: (1) Career Service employees who generally cannot be fired, demoted, or suspended without cause; and (2) Excepted Service officers who are at-will employees. Both Claimants were Career Service employees and therefore contended that they could not be demoted from the position of Commander without cause.

The OEA, however, determined that the Chief of Police (acting with the authority of the Mayor) was permitted to demote even Career Service officers as long as their demotion was not to a rank below that of Captain. The applicable statute states:

For members of the Metropolitan Police Department and notwithstanding § 1-632.03(1)(B) [4] or any other law or regulation, the Assistant and Deputy Chiefs of Police and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Mayor so determines.

D.C. CODE § 1-608.01.

The Claimants argued that this provision could not apply to Career Service employees because it flies in the face of the policy stating that such employees cannot be fired, demoted, or suspended without cause. The Claimants argued that the language must only be applicable to Excepted Service officers, and as such they were entitled to reinstatement and back pay.

However, the Court of Appeals affirmed the OEA decision stating that the express statutory language of § 1-608.01 (d-1) provided no support for Claimant’s argument. Particularly, there was no language making an exception for Career Service employees, and the Legislature’s use of the phrase “notwithstanding” any other law or regulation, made clear that the Mayor’s power to demote high ranking officials in the department superseded the general proposition.

The Court further noted that the provision allowing for the Mayor to return Commanders to the rank of Captain and/or Inspector still protects Career Service employees as they cannot be terminated without cause or demoted to any rank below that of Captain. Thereafter, the Court determined that an elevated ranking was not a protected property right of the individuals since it rested in the discretion of MPD as their employer.