Allen v. District of Columbia Police & Firefighters' Retirement & Relief Board

560 A.2d 492, 1989 D.C. App. LEXIS 63, 1989 WL 38931
CourtDistrict of Columbia Court of Appeals
DecidedApril 19, 1989
DocketNo. 86-1623
StatusPublished
Cited by1 cases

This text of 560 A.2d 492 (Allen v. District of Columbia Police & Firefighters' Retirement & Relief Board) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. District of Columbia Police & Firefighters' Retirement & Relief Board, 560 A.2d 492, 1989 D.C. App. LEXIS 63, 1989 WL 38931 (D.C. 1989).

Opinion

REILLY, Senior Judge:

A police officer seeks review of a decision by the District of Columbia Police and Firefighters’ Retirement and Relief Board (“the Board”) holding him “psychiatrically incapacitated for further duty” and thereby disabled from performing useful and efficient service in the Metropolitan Police Department because of a “serious character disorder.” The Board also found that petitioner’s “condition” was not incurred in the performance of duty. Pursuant to this order petitioner was involuntarily separated from the department and denied entitlement to retirement benefits as he had served less than five years on the force.1

On review, petitioner asserts three grounds for vacating the decision and order: (1) the Board’s finding that petitioner was disabled “for useful and efficient service” is “inadequate as a matter of law”; (2) the Board committed harmful error in relying upon hearsay evidence; and (3) the [493]*493Board’s finding is not supported by substantial evidence. After examining the record, we have concluded that the challenged decision is lacking in evidentiary support, and therefore must be set aside.

I.

The events which brought about these involuntary retirement proceedings may be summarized as follows.

Petitioner Allen joined the police force on December 14,1981, shortly after being honorably discharged from the Navy, having served four years as an enlisted man subsequent to his high school graduation. At the time of the retirement hearing, he was twenty-seven years old and had completed all but ten days of “his first five years of service”2 in the department.

During this period, he had received several commendations from his superiors and at the end of his fourth year of service— 1985 — he was given the highest departmental rating available to an officer — “outstanding.” The transcript of the hearing, however, also discloses that a few months after his marriage in 1983, he became friendly with a Miss Susan Barton, manager of the stadium ticket office of the Redskins’ football club — a position which enabled her to sell tickets for seats not reserved by season subscribers to police officers and other personal acquaintances. In January of 1984, she sold Allen a ticket to a post-season game in Florida which she also attended. This trip culminated in a sexual liaison which lasted for about two years, in the course of which she bore an infant girl by him, only a month after his wife had delivered an infant son. No aspect of this dual life apparently interfered with his official duties, or was drawn to the attention of the police department until the night of January 26, 1986, when his wife telephoned the precinct where Allen was assigned.

Just what Mrs. Allen said in this phone conversation became a matter of controversy at the hearing.3 According to the report of the duty officer, Lieutenant Sarris, she told him that her husband stated (in a telephone call) that he was going to kill himself. At that time the couple were not living together — Allen having a separate apartment. The lieutenant reached him there and was informed by Allen that everything was all right, that he had just spoken to a chaplain about his problems and would answer roll call at 6:30 the next morning. Allen was instructed to turn in his revolver during the interim. He did not do so. When he reported that morning, he was sent to the police clinic, interviewed by a staff psychiatrist, Dr. D’Agostino, and placed upon sick leave for stress for about five weeks.

The Board found (correctly) that these calls had been precipitated by what Mrs. Allen had learned when, at Miss Barton’s request, the two women had met earlier that day at a shopping mall. The wife then discovered that contrary to what she had been told, her husband’s amorous relationship with the other woman was still continuing — they were to meet that evening— and each had received conflicting statements from Allen of his intentions with regard to their future.4

While on sick leave, Allen declined to take antidepressant drugs prescribed by Dr. D’Agostino who then referred him to a consulting psychologist, Dr. Silber, for a [494]*494full evaluation. After subjecting Mm to a battery of tests and a personal interview, Dr. Silber in a report dated February 27, 1986, a month after Allen’s being placed on administrative leave, found that despite some personality shortcomings,5 “[n]o psychiatric diagnosis on Axis I seems warranted; the possibility of a mild personality disorder exists, but the evidence to sustain one is not conclusive.” The department accepted this report as establishing an absence of any mental deficiency and restored him to active duty the following month (March 1986).

About a month after his reinstatement, April 2, 1986, Allen visited Miss Barton at the Stadium ticket office; an altercation ensued between them and one of her coworkers. The latter called two police sergeants to the scene who ordered Allen to leave. Later that day, Allen went to Miss Barton’s home in Landover, Maryland. Her co-worker was also on the premises. Again there was a noisy quarrel which was terminated when two policemen on the Prince George’s County force were summoned.

Miss Barton complained to Allen’s supervisors, who revoked his police powers, placed him on leave with pay, ordered him to report again to the psychiatric clinic, and instructed him to stay away from the Barton home and place of employment until the investigation of the incident was completed. The record indicates that he was examined at the clinic the next day. As his mental status was found to be normal, the psychiatrist who interviewed him restored him to duty immediately, although noting a need for further therapy.6 This apparently ended the investigation.

There is nothing in the record of any further contact between Allen and Barton until July 14, when by prearrangement he was permitted to pick up his daughter and was prepared to spend the day with her. According to his testimony, Miss Barton suddenly informed him, in breach of their understanding, that the child would have to be returned by early afternoon. This produced another quarrel and a complaint by the mother to Allen’s superior, Captain Wi-dawski, who requested the clinic to make a further psychiatric evaluation of Allen, in a memorandum, reporting “a strong degree of animosity towards his ex-girl friend....” Allen reported the next day to Dr. D’Agostino. His notes seem to confirm Allen’s version of the altercation. The officer was not suspended but remained on active duty.

Allen testified without contradiction that after this visitation squabble, he made no further attempts to visit Miss Barton as his lawyers had advised him to “stay away from her” because of a pending paternity action. The record contains no description of that lawsuit except for Allen’s testimony that after he told her he would sue for custody unless she recognized his visitation rights, she “beat him to the punch by filing first.” Counsel’s brief states that Allen then filed a counterclaim for custody.

The event that prompted the initiation of involuntary retirement proceedings occurred a month later, on August 14, 1986. Miss Barton, having been notified that her car, while parked at Landover Shopping Mall, had been damaged by removal of the valve stems from two tires, filed a complaint with Prince George’s County police to the effect that Allen was to blame.

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Related

O'Rourke v. District of Columbia Police & Firefighters' Retirement & Relief Board
46 A.3d 378 (District of Columbia Court of Appeals, 2012)

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Bluebook (online)
560 A.2d 492, 1989 D.C. App. LEXIS 63, 1989 WL 38931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-district-of-columbia-police-firefighters-retirement-relief-dc-1989.