District of Columbia Metropolitan Police Dep't v. District of Columbia Public Employee Relations Board

• Court: District of Columbia Court of Appeals
• Decided: May 21, 2026
• Docket: 24-CV-0573
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-CV-0573

DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLANT,

V.

DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, et al., APPELLEES.

Appeal from the Superior Court of the District of Columbia (2023-CAB-002461)

(Shana Frost Matini, Judge) (Argued October 8, 2025 Decided May 21, 2026)

Stacy L. Anderson, Senior Assistant Attorney General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellant.

Geoffrey H. Simpson for appellee Public Employee Relations Board.

Daniel J. McCartin, with whom Benjamin J. Campbell was on the brief, for intervenor Fraternal Order of Police/Metropolitan Police Department Labor Committee.

Before BECKWITH and MCLEESE, Associate Judges, and THOMPSON, Senior Judge. Opinion for the court by Senior Judge THOMPSON. Dissenting opinion by Associate Judge BECKWITH at page 31. 2

THOMPSON, Senior Judge: This matter returns after a remand in which we

directed that the Public Employee Relations Board (PERB) explain its decision not

to set aside an arbitral award as “on its face contrary to law and public policy.” See

D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd., 282 A.3d 598, 605, 606 (D.C.

2022) (“Thomas I”). On remand, PERB explained its decision and again upheld the

arbitral award, and the Superior Court (again) affirmed. For the reasons set forth

below, we affirm the judgment upholding PERB’s decision.

I. Facts and Procedural History

A general factual background and the earlier procedural background are set

out in Thomas I. See id. at 601-02. We repeat some of that background here, focusing

on the facts most pertinent to the issues on remand. In 2009, District of Columbia

Metropolitan Police Department (MPD) Officer Michael Thomas, while off duty,

twice shot Mr. Julio Lemus outside a residence in Hyattsville, Maryland, seriously

injuring and nearly killing Mr. Lemus. Thomas I, 282 A.3d at 601. Officer Thomas

had stepped outside the residence and off its porch after seeing someone (Mr.

Lemus) near his car and suspecting that the person was trying to break into the

vehicle. 1 Officer Thomas was outside of his jurisdiction and had been trained to call

1 The arbitrator found that the following was not disputed: After hearing the vehicle alarm go off on his automobile key fob, Officer Thomas asked his fellow officer, Hope Mathis, who was in the residence with him, to turn off the house alarm. 3

911 in that situation “before taking any police action in response to a nonviolent

property crime.” Id. at 601. He did not call 911, however, and he contended that he

shot Mr. Lemus after first identifying himself as a police officer, instructing Mr.

Lemus to leave, and directing him to show his hands when he did not leave, and after

Mr. Lemus instead placed his hand inside the pocket of his hoodie as he approached

Officer Thomas. 2 Lemus testified that he had his hands up at the time of the shooting,

but reportedly told Hyattsville Police Department investigators that he was

intoxicated at the time of the incident and told Hyattsville police that he had no

recollection of the shooting. 3 Police found on Mr. Lemus no weapon and no

“paraphernalia or instruments indicating that [he] was trying to break into” a vehicle.

The State’s Attorney Office for Prince George’s County, Maryland, declined to

After she did so, and after both looked through a glass panel of the front door and saw a person next to Officer Thomas’s vehicle, Officer Thomas “got dressed and retrieved his holstered weapon,” went out the front door and down one flight of stairs, and then walked on a short pavement and down a second set of stairs to ground level and toward the vehicle and the person near it. 2 Officer Mathis also testified that Mr. Lemus, who was wearing a “sweater hoodie,” was advancing toward Officer Thomas and “started to reach into his sweater,” but that she “wasn’t sure if he was armed.” 3 Mr. Lemus testified before the MPD Adverse Action Panel, however, that he had been drinking that night, placed a bottle of beer on top of the vehicle as he stopped alongside it to urinate, noticed someone (Officer Thomas) who never identified himself as a police officer “charging at him” from behind, and was shot as he tried to run away. 4

bring any charges against Officer Thomas or Mr. Lemus based on the incident,

finding “[n]o evidence of criminal activity.”

After internal MPD reviews of the incident, and after the MPD Chief of Police

proposed that Officer Thomas be terminated from his position, his union, the

Fraternal Order of Police (FOP), demanded arbitration pursuant to its collective

bargaining agreement (CBA) with MPD. The arbitrator was charged with answering

two questions: (1) whether the MPD presented sufficient evidence to support the

“alleged charges” against Officer Thomas (in short, involvement “in the commission

of any act which would constitute a crime” and violation of MPD General Orders

pertaining to when deadly or lethal force may be used), and (2) whether termination

was an appropriate remedy. In answering the first question, the arbitrator found “the

evidence presented by MPD to be sufficient to support the alleged charges.” The

arbitrator reasoned as follows:

[I]t is clear that had . . . Officer Thomas called 911 to report to the Hyattsville police that someone was standing near his car and had set off an alarm and had not gone out of the house with a gun and confronted that person, none of the following events culminating in shooting that individual twice would have occurred. Mr. Lemus [was not armed and] was not breaking into the car, damaging the car or committing any crime. Officer Thomas did not have legal authority in another jurisdiction to give police orders to an individual who was not committing a crime. Officer Thomas put himself and Mr. Lemus in harm[’]s way by walking off the porch with his gun and approaching Mr. Lemus. This was compounded by his 5

shooting Mr. Lemus, not once but twice nearly resulting in his death. . . . Officer Thomas’[s] actions that fateful day were reckless and . . . [he] exercised incredibly poor judg[]ment. I find that Officer Thomas . . . violate[d] the Maryland statute which defines reckless endangerment and did recklessly engage in conduct that created a substantial risk of death or serious injury[.] I find [that] Officer Thomas . . . fail[ed] to obey orders or directives by the Chief of Police [specifically, the rules that] “Members of the Metropolitan Police Department may use deadly force in the performance of police duties . . . [w]hen it is necessary and objectively reasonable” and “No member shall draw and point a firearm at or in the direction of a person unless there is a reasonable perception of a substantial risk that [the situation may escalate to] the point where lethal force would be permitted.”] . . . The actions of Officer Thomas, using deadly force were not “objectively reasonable” provided the facts and circumstance[s] present[.]

The arbitrator also determined, however, that the MPD’s proposed termination was

not an appropriate penalty. The arbitrator reduced the proposed termination to a 45-

day suspension, the same discipline that an FOP exhibit showed had been imposed

in the case of one Officer Edward Ford (whose case we discuss in somewhat more

detail below).

In its initial (May 17, 2018) decision, PERB sustained the suspension, and the

Superior Court upheld the initial PERB decision. In Thomas I, we vacated the

Superior Court’s ruling and directed that the initial PERB decision be remanded.

Thomas I, 282 A.3d at 606. In the portion of the initial PERB decision that we held 6

necessitated a remand, PERB had dismissed the MPD’s contention that enforcement

of the arbitration award would be “on its face contrary to law” without specifically

addressing some of MPD’s arguments, 282 A.3d at 605, and had not “adequately

explained its decision not to set aside the arbitral award as against public policy.” Id.

at 606.

In its March 16, 2023, Decision and Order on Remand, PERB again upheld

the arbitrator’s decision, and the Superior Court again affirmed. This appeal

followed.

MPD once again contends that the arbitrator’s decision was on its face

contrary to law and that enforcement of the arbitral award would be contrary to

public policy. MPD asks us to reverse and to require that the arbitrator’s decision be

vacated or, alternatively, to remand again for clarification from the arbitrator.

II. Standard of Review

Although this appeal is from a decision of the Superior Court, our task is to

review PERB’s decision “as if the matter had been heard initially in this court.”

Thomas I, 282 A.3d at 602 (quoting Gibson v. D.C. Pub. Emp. Rels. Bd., 785 A.2d

1238, 1241 (D.C. 2001)). MPD contends that our review should be “de novo without

deference to PERB,” while PERB asserts that “controlling law . . . gives PERB’s

decision deference.” We do not resolve that dispute; rather, because we agree with 7

PERB’s decision to uphold the arbitral award, we shall assume without deciding that

our review is de novo.

III. Discussion

D.C. Code § 1-605.02(6) provides that PERB (which is authorized under that

section to “[c]onsider appeals from arbitration awards pursuant to a grievance

procedure”) may overturn arbitral awards only under a set of limited circumstances,

including where an arbitral award “on its face is contrary to law and public policy.”

In the discussion below, we consider whether the facts of this case present one of

those limited circumstances. 4

A. Whether the Arbitral Award Is on Its Face Contrary to Law

As we noted in Thomas I, one circumstance in which an arbitral award will be

deemed to be “on its face contrary to law” is where the arbitrator “looks to an

external law for guidance and purports to apply that law, but overlooks or ignores

the law’s express provisions.” 282 A.3d at 604 (citing FOP/Dep’t of Corr. Lab.

Comm. v. D.C. Pub. Emp. Rels. Bd., 973 A.2d 174, 178 (D.C. 2009). The MPD has

advanced three arguments as to why the arbitral award here presents that

4 As in Thomas I, we proceed on the assumption that the arbitral award should properly be set side if the award on its face is contrary to either law or public policy. 282 A.3d at 604. 8

circumstance. For the reasons discussed below, we are unpersuaded by MPD’s

arguments and conclude that the arbitral award is not on its face contrary to law.

MPD’s first argument relates to the arbitrator’s discussion of so-called

Douglas Factor 7, “[c]onsistency of the penalty [proposed by MPD] with those

imposed upon other employees for the same or similar offenses.” See Douglas v.

Veterans Admin., 5 M.S.P.R. 280 (1981). Noting that the MPD Adverse Action

Panel “cited no disciplinary decisions” in which an employee had been terminated

for misconduct similar to Officer Thomas’s, the arbitrator criticized MPD’s

consideration of Factor 7 as “without proof, when proof is required.” By contrast,

the arbitrator noted, “[t]hree disciplinary cases were part of the record provided” to

him by FOP, and, as noted above, the arbitrator went on to rely on and adopt the

penalty MPD imposed in one of those cases (the matter of Officer Ford). MPD

argues that the arbitrator’s reasoning was contrary to law in that the arbitrator

required “proof” about penalties imposed in similar cases even though, MPD argues,

under Douglas “no such proof” is required unless and until the disciplined employee

“shows disparate treatment” (a showing MPD asserts Officer Thomas did not make).

MPD relies on this court’s statements in MPD v. D.C. Off. of Emp. Appeals, 88 A.3d

724 (D.C. 2014), as amended (May 22, 2014), that “[t]here is no requirement that

an agency articulate its Douglas analysis before terminating an employee,” id. at 730

n.3, and that an “agency’s burden [under Douglas] . . . is triggered by the appellant’s 9

initial showing that . . . the agency treated similarly-situated employees differently,”

id. (quoting Boucher v. U.S. Postal Serv., 118 M.S.P.R. 640, 649 (2012)).

MPD is correct about its burden under Douglas. MPD also correctly asserts

that FOP, in its submissions to the arbitrator, did not show that the officers involved

in the three cases it cited (including Officer Ford)—all of whom were disciplined

through a penalty less severe than termination—were similarly situated to Officer

Thomas in all relevant respects. Indeed, as MPD emphasizes, the record before us

contains very little information about any of those three cases. However, we reject

MPD’s argument that the arbitrator’s having premised his decision on MPD’s failure

of “proof” rendered his decision contrary to the requirements of Douglas and thus

on its face contrary to law. We reject MPD’s argument because, as we noted in

Thomas I, we are unable to say that the arbitrator purported to apply Douglas. See

282 A.3d at 605 (reasoning that “it is not at all clear” that the arbitrator “understood

himself to be conducting the . . . review authorized under Douglas” rather than to be

exercising his general authority to modify the sanction selected by MPD). We

therefore cannot say that the arbitrator’s decision was on its face contrary to law in

the sense of purporting to apply Douglas but overlooking or ignoring its

requirements. For that reason, we agree with PERB that “[t]he record does not reflect

that the [a]rbitrator imposed an additional burden of proof on MPD outside of 10

exercising his equitable powers to review the Panel’s application of the Douglas

factors.”

MPD’s second argument as to why the arbitrator’s decision was on its face

contrary to law is that the arbitrator considered each Douglas factor individually,

rather than evaluating whether MPD “conscientiously consider[ed] the relevant

[Douglas] factors and . . . str[uck] a responsible balance within tolerable limits of

reasonableness” (quoting 5 M.S.P.R. at 306). Again, because it is not clear from the

face of the arbitral decision that the arbitrator purported to adhere to Douglas, we

cannot say that the arbitrator used an erroneous approach in evaluating MPD’s

balancing of the Douglas factors. We agree with PERB that there was no need to

“address[] [this issue] further on remand.” 5

MPD’s third argument as to why the arbitrator’s decision was on its face

contrary to law is that the 45-day suspension the arbitrator imposed was “so

arbitrary” and “so disproportionate to the severity of [Officer] Thomas’s misconduct

as to be contrary to law.” Citing this court’s recognition in Thomas I that “[i]n

sufficiently extreme circumstances, an arbitrator’s selection of penalty could be so

5 As MPD argues, Thomas I may have “precluded PERB from ruling [, without first seeking clarification from the arbitrator,] that the arbitrator was relying on his equitable powers rather than applying Douglas.” But Thomas I does compel us to recognize that the arbitrator’s decision does not clearly show on its face that the arbitrator purported to apply Douglas while overlooking its requirements. 11

arbitrary and capricious as to be on its face contrary to law,” 282 A.3d at 605, MPD

asserts first that Officer Thomas’s misconduct is so dissimilar to the misconduct

involved in the Ford matter as to make the comparison inapposite and irrational. But

the record as it pertains to the Ford matter—which contains only the MPD charging

document and a description of the penalty that was ultimately imposed on Officer

Ford (i.e., no details about why MPD reduced a proposed termination of Officer Ford

to a 45-day suspension)—makes that claimed dissimilarity far from clear. Officer

Thomas fired two shots at an unarmed civilian whom he suspected of tampering with

his vehicle, seriously injuring him. Officer Ford’s conduct was seemingly less

culpable than Officer Thomas’s in some respects (according to the MPD charging

document, Officer Ford assertedly fired only one shot at a civilian, doing so after the

civilian, whom he suspected of stealing his property, “started swinging and kicking

towards” him and “lunged forward” toward him), but it seemingly was more

egregious than Officer Thomas’s conduct in other respects (in that Officer Ford

disobeyed his superiors’ specific, direct orders not to pursue the civilian, and in that

the civilian died after Officer Ford shot him). 6 On the limited record that is before

us and that was before the arbitrator, we cannot say that the arbitrator acted in a way

MPD asserts that (unlike Thomas), Officer Ford “did not engage in criminal 6

misconduct,” but the record does not so establish (though MPD is correct that the MPD charging document did not charge Officer Ford with criminal misconduct). 12

that was on its face contrary to law by reducing the discipline for Officer Thomas

from termination to the same penalty imposed in the Ford matter. 7

In asserting that the reduced penalty of a 45-day suspension is contrary to law,

MPD also argues that termination “surely . . . must be mandatory where a law

enforcement officer engaged in a violent, reckless, life-threatening criminal act

against a member of the public with no mitigating circumstances.” Although Officer

Thomas’s misconduct undoubtedly was serious, we are unpersuaded by this

additional argument because we cannot say that a 45-day suspension—a suspension

without pay for more than six weeks—is, on its face, a non-severe sanction. 8 Indeed,

courts have recognized that a suspension is a “very severe sanction.” In re

Cichowicz, 213 N.E.3d 1022, 1024 (Ind. 2023) (reasoning, in a case involving

judicial misconduct that “permeated [a judge’s] entire 4-year career as [a] probate

7 That is especially so given that the Thomas record contained information (specifically, Officer Thomas’s lack of any prior disciplinary history during his three years as an officer and his superiors’ assessment that he was a dependable officer) that could have informed the arbitrator’s finding that it was “questionable” that no sanction other than termination could deter similar conduct in the future. 8 We also note that the Maryland Court of Appeals held several years ago that imperfect self-defense (i.e., the “subjective honest belief” that action was necessary for one’s safety) can mitigate the offense of assault with a firearm. See Christian v. State, 951 A.2d 832, 833, 842, 848 (Md. 2008); but see State v. Wilkerson, No. 1915, 2025 Md. App. LEXIS 287, *28 (Apr. 7, 2025) (“It is an unsettled question of law [after an intervening decision] whether imperfect self-defense continues to mitigate first-degree assault.”). 13

judge,” that “[s]uspensions longer than 30 days ‘reflect extremely serious judicial

misconduct, just shy of what might warrant removal from office.’”). We also note

the FOP’s representation at oral argument that a thirty-day suspension is the

maximum nontermination sanction recommended under the CBA, and case law

indicates that thirty days is the maximum nontermination sanction for police officers

in some other jurisdictions as well. 9 Further, case law from other jurisdictions shows

that courts have treated nontermination penalties as severe sanctions for conduct

contrary to police officers’ sworn duties to protect the public. See, e.g., FOP, Lodge

8 v. City of Cleveland, No. 102565, 2015 Ohio App. LEXIS 4157, *8 (Ohio Ct. App.

Oct. 8, 2015) (holding that year-long demotion of police sergeant, with attendant

substantial loss in pay, as sanction for his sitting idle for five minutes instead of

responding to an emergency call was not contrary to public policy). We therefore

are not persuaded that the sanction chosen by the arbitrator is self-evidently

disproportionate to the seriousness of Officer Thomas’s misconduct so as to be on

its face contrary to law.

9 See, e.g., City of Seattle v. Seattle Police Officers’ Guild, 484 P.3d 485, 494 n.6 (Wash. Ct. App. 2021); City of Little Rock v. Starks, No. CV-20-336, 2021 Ark. App. 362, *2 (Ark. Ct. App. Sep. 29, 2021); Marigliano v. Bd. of Fire & Police Comm’rs, No. 1-14-1954, 2015 Ill. App. Unpub. LEXIS 1748, *2 (Aug. 6, 2015); Louisville by Kuster v. Milligan, 798 S.W.2d 454, 456 (Ky. 1990). 14

B. Whether the Arbitral Award Is on Its Face Contrary to Public Policy

To warrant disturbance of an arbitral award, “a public policy alleged to be

contravened ‘must be well defined and dominant, and is to be ascertained by

reference to the laws and legal precedents and not from general considerations of

supposed public interest.’” D.C. Pub. Emp. Rels. Bd. v. FOP/Metro. Police Dep’t

Lab. Comm., 987 A.2d 1205, 1208 (D.C. 2010) (quoting W.R. Grace & Co. v. Loc.

Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am.,

461 U.S. 757, 766 (1983)). As we noted in Thomas I, see 282 A.3d at 606, it is

undisputed that there is a dominant public policy against the criminal use of deadly

force by police. See, e.g., D.C. Code § 5-123.02 (providing that an officer “who uses

unnecessary and wanton severity [against] any person shall be deemed guilty of

assault and battery”), and 6A D.C.M.R. § 207 (providing that an MPD officer shall

not discharge his or her firearm except “[t]o defend him or herself or another from

an attack which the officer has reasonable cause to believe could result in death or

serious bodily injury”). However, as PERB acknowledged in its Decision on

Remand, “[t]he issue is not whether [Officer Thomas’s] misconduct violated public

policy, but rather whether enforcing the arbitral award would do so” (quoting

Thomas I, 282 A.3d at 606 (citing E. Associated Coal Corp. v. United Mine Workers

of Am., 531 U.S. 57, 62-63 (2000))). 15

Citing the absence of explicit law precluding Officer Thomas’s reinstatement,

PERB undertook a “fact-specific inquiry” to determine whether the arbitrator’s

penalty decision was on its face contrary to public policy. PERB looked to several

factors, including

whether there is a longstanding practice of requiring the termination of similarly situated employees, the severity of the employee misconduct, the potential for employee rehabilitation, the employee’s prior history of misconduct, the likelihood of repeat offense, the employee’s amenability to discipline, whether an arbitral award reinstating an employee is conditioned on other forms of discipline, and other fact-specific mitigating factors.

PERB then concluded:

MPD does not assert that it has removed other police officers for similar offenses. As FOP notes, MPD reinstated the terminated officer in Ford, a case in which the Arbitrator found the officer’s misconduct similar to that of the Grievant. The Arbitrator further noted that there was a good chance of the Grievant’s rehabilitation in this case. Finally, the Arbitrator’s reversal of the Grievant’s termination was conditioned upon the imposition of a 45- day suspension. Based on the facts of the case, the Board finds that MPD has not demonstrated that the reinstatement Award is contrary to public policy.

MPD argues that this court should reject PERB’s conclusion given the public

policies reflected in D.C. Code § 5-107.01(f) and 6B D.C.M.R. § 873.11, which it

contends “indicate that the only acceptable penalty for [Officer] Thomas’s

misconduct is termination.” D.C. Code § 5-107.01(f) was enacted by the Council of 16

the District of Columbia (Council) as part of the Comprehensive Policing and Justice

Reform Amendment Act of 2022 after the murder of George Floyd. See D.C. Law

24-345, 70 D.C. Reg. 7904 (June 2, 2023). Section 5-107.01(f) provides in pertinent

part that “[a]n applicant shall be ineligible for appointment as a sworn member of

the Metropolitan Police Department if the applicant: (1) [w]as previously

determined by a law enforcement agency to have committed serious misconduct, as

determined by the Chief by General Order[.]” MPD argues that section 5-107.01(f)

“reflects a strong policy against employing officers who have engaged in . . . the

unlawful use of deadly force like the arbitrator found [Officer] Thomas to have

committed here.” 6B D.C.M.R. § 873.11 provides in pertinent part that “[a]

candidate is ineligible to become a police officer if the candidate has . . . (a)

[e]ngaged in any conduct which would constitute a felony in the District of

Columbia, whether or not the conduct resulted in the arrest of the candidate or the

filing of criminal charges[.]” MPD argues that, “by implication,” Section 873.11

precludes such persons from remaining police officers after engaging in a felonious

criminal act. 10

MPD’s brief does not express a view about whether, by implication, Section 10

873.11 would preclude a person from remaining a police officer after engaging in one of the other offenses the Section lists as rendering a candidate ineligible to become a police officer, such as a conviction of misdemeanor simple assault, see Section 873.11(b)(1), or a recent conviction of driving while intoxicated, see Section 873.11(c). 17

There is some force to MPD’s argument that public policy regarding whether

to retain officers who have engaged in the unlawful use of deadly force (or some

other felonious criminal act) should be the same as public policy regarding the hiring

of police officers. However, for the reason discussed below, we reject MPD’s

argument that the foregoing statutory or regulatory provisions preclude enforcement

of the 2017 arbitral award in this case, which retained Officer Thomas on the force

after he engaged in such a criminal act in 2009.

In enacting the Comprehensive Policing and Justice Reform Amendment Act

of 2022, the Council included a number of provisions in response to demands for

greater police accountability. Report on Bill No. 24-0320 before the Committee on

the Judiciary and Public Safety, Council of the District of Columbia, at 2 (Nov. 30,

2022) (Committee Report). In addition to enacting Section 5-107.01(f) to amend the

minimum standards for police officers, the Council enacted D.C. Code § 1-617.08(c)

in response to “evidence that the current collective bargaining agreement governing

the disciplinary process for MPD officers has not resulted in a meaningful system of

accountability.” Committee Report at 32; see also id. at 31 (citing a Police Reform

Commission report finding that “arbitrators in DC ruled that MPD had to reinstate

39 of 86 officers it fired”). Specifically, the Council acted to “make[] the discipline

of sworn law enforcement personnel a sole management right” “that cannot [be] 18

negotiated during collective bargaining.” Committee Report at 32, 119. 11 The

Council delayed the effective date of this amendment, however, “to avoid any

interference with collective bargaining agreements already in effect,” “allowing

employees to challenge disciplinary actions under the negotiated grievance process

of any existing collective bargaining agreement . . . if, on or before the effective date

of this subsection [April 21, 2023], MPD has issued a final agency decision.” Id. at

10, 32; see 70 D.C. Reg. 7904; D.C. Code § 1-617.08(c)(1), (2). 12

11 It appears that proponents of this legislation acted on an observation this court made in rejecting MPD’s argument that an arbitral reinstatement award was contrary to public policy: “If MPD nonetheless believes the risk of repeated arbitrator decisions such as this one endangers public safety, it has other recourse— to the legislature or even to PERB in its rule-making capacity—assuming it cannot ‘negotiate a modification of the contract.’” D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd., 901 A.2d 784, 790 (D.C. 2006) (quoting Am. Postal Workers v. U.S. Postal Service, 789 F.2d 1, 7 (D.C. Cir. 1986)). 12 Section 1-617.08(c) provides that: (1) All matters pertaining to the discipline of sworn law enforcement personnel shall be retained by management and not be negotiable through bargaining, including substantive or impacts-and-effects bargaining. (2) This subsection shall apply to any collective bargaining agreements entered into with the Fraternal Order of Police/Metropolitan Police Department Labor Committee after September 30, 2020, and to any collective bargaining agreements automatically renewed on or after September 30, 2020. 19

We think the Council’s decision to grandfather the negotiated grievance

process for the time window specified in the legislation, at the same time the Council

enacted D.C. Code § 5-107.01(f) to preclude the hiring of police officers who had

been determined to have committed serious misconduct (and at the same time the

Council made some other provisions of the legislation retroactive 13), indicates that

the legislature was willing, as a matter of public policy, to tolerate some additional

arbitral awards reducing MPD-imposed penalties (presumably including

terminations for misconduct which MPD believes warrants termination), in order to

honor existing collective bargaining agreements. To state the point differently, the

Council’s decision to delay the effective date of Section 1-617.08(c)—one of a

battery of greater-police-accountability provisions, including Section 5-107.01, that

the Council included in the Comprehensive Policing and Justice Reform

Amendment Act of 2022—leads us to conclude that the policy embodied in Section

5-107.01 (i.e., the policy that an individual who has engaged in the criminal use of

deadly force is to be excluded from the police force in the District of Columbia) is

not a “dominant” public policy 14 that must, at least with respect to arbitral awards

13 See D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd., 301 A.3d 714, 718 (D.C. 2023) (“[W]e reject FOP’s challenges to the constitutionality of applying [the Comprehensive Policing and Justice Reform Amendment Act of 2022] retroactively.”). 14 Cf. E. Associated Coal Corp., 531 U.S. at 63-67 (reasoning that where “[n]either Congress nor the Secretary ha[d] not seen fit to mandate the discharge of 20

such as the 2017 award at issue here, override other public-policy considerations

(such as “this Nation’s longstanding labor policy” to give “employers and employees

the freedom through collective bargaining to establish conditions of

employment” 15). Accordingly, we cannot agree with MPD’s assertion that either

Section 5-107.01(f) or Section 873.11 or both “indicate that the only acceptable

penalty for [Officer] Thomas’s misconduct is termination.” 16 Neither provision

“specifically militates against the relief ordered by the arbitrator.” Stead Motors of

Walnut Creek v. Auto. Machinists Lodge No. 1173, 886 F.2d 1200, 1212-13 (9th Cir.

1989). If the arbitral award must be vacated as on its face contrary to public policy,

that conclusion must rest on some other ground.

MPD does not take issue with PERB’s fact-specific-inquiry approach to

determining whether an arbitral award violates public policy. We likewise agree with

PERB’s fact-specific-inquiry approach, and we note in particular that its

consideration of “whether there is a longstanding practice of requiring the

termination of similarly situated employees” is consistent with the Supreme Court’s

a worker who twice tests positive for drugs,” the Court “hesitate[s] to infer a public policy in this area” and could not find a “‘dominant’ public policy to which the arbitrator’s decision ‘runs contrary.’”). 15 Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 608 (1980). 16 MPD also argues that termination was called for by the “relevant table of penalties.” The record contains only (what appears to be) an excerpt from that table. 21

admonition against “assum[ing] to declare” a contract contrary to public policy “[i]n

the absence of a plain indication of that policy through long governmental practice

or statutory enactments.” Muschany v. United States, 324 U.S. 49, 66, 67 (1945).

MPD argues, however, that PERB “failed to identify all the relevant

considerations.” 17 Citing factors considered by courts in some other jurisdictions and

especially the Connecticut Supreme Court decision in Burr Road Operating Co. II

v. New England Health Care Employees Union, District 1199, 114 A.3d 144 (Conn.

2015), MPD faults PERB for failure to consider whether the misconduct “would

expose the employer to substantial liability if it were to reoccur”; “whether the nature

17 MPD also argues that PERB “misapprehended the content of the arbitrator’s decision.” As MPD notes, the arbitrator did not actually find that Officer Ford’s conduct was “similar to that of [Officer] Thomas”; rather, the arbitrator found that Officer Thomas’s conduct was “as close to similar misconduct as is in evidence.” We do not regard that as a material misapprehension. MPD also highlights that, contrary to PERB’s paraphrase, the arbitrator did not say “that there was a good chance of [Officer Thomas’s] rehabilitation.” We take the point, however, that PERB’s counsel made at oral argument: that we should ask whether there is any reasonable reading of the arbitrator’s decision to support PERB’s paraphrase. We are satisfied that “a good chance of rehabilitation” was a reasonable reading of the arbitrator’s statement that “a long suspension without pay and mandatory training of Thomas and, if necessary, counseling and educational meetings with officers with specific disciplinary warnings of severe discipline might well have deterred similar conduct of Thomas and others” (emphasis added) and “might also have resulted in Officer Thomas[’s] rehabilitation[.]” See May Well, Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/english/may-well; https://perma.cc/9G5F-YUTH (“If you say that something may well happen, you mean that it is likely to happen”) (emphasis added). 22

of the employment at issue implicates public safety” or implicates the public trust,

such that, for example, reinstatement in face of the misconduct would undermine the

public’s faith in the criminal justice system; whether the misconduct caused severe

harm and “strikes at the core . . . of the relevant public policy”; the egregiousness of

the offense, encompassing considerations such as “the intent of the grievant with

respect to the offending conduct”; and whether there is a substantial risk that the

employee will reengage in the offending conduct. 114 A.3d at 156-59. MPD asserts

that all of these factors, which PERB either did not list or did not actually consider,

weigh in favor of finding that the arbitrator’s award reinstating Officer Thomas was

on its face contrary to public policy. 18

We do not discount the importance of all the foregoing factors. We agree that

they all are highly relevant in MPD’s determination of what discipline it should

impose and might reasonably guide arbitrators as well. PERB included many of them

18 We note that the factors PERB did consider appear to be drawn from 6B D.C.M.R. § 1606.2, a regulation adopted pursuant to the CMPA that governs adverse actions against District of Columbia employees generally but that is inapplicable to “[s]worn members of the [MPD],” 6B D.C.M.R. § 1600.2(g); or from the Douglas factors. But PERB did not list as factors to be considered the employee’s “contacts with the public, and prominence of the position” or “[t]he notoriety of the offense or its impact upon the reputation of the agency or the District government,” see §§ 1606.2(b) and (h) and Douglas factors 2 and 8, factors that seem particularly relevant to the discipline of law enforcement officers and that at least arguably would have weighed in favor of a determination that the arbitral award was contrary to public policy. So we agree that PERB’s list of factors was incomplete. 23

in its analysis, even if not in so many words, and although it did not expressly address

some of the factors it identified, we do not see that as particularly relevant given our

de novo review. In conducting that review, we are obligated to recognize that “[t]he

public-policy exception to the enforcement of arbitral awards is ‘extremely

narrow,’” Thomas I, 282 A.3d at 606, such that we should “invalidate contract terms

[a term that we have construed to include arbitral awards] that are contrary to public

policy only in the clearest of cases, and with great caution.” Roberts v. Advanced

Bldg. Design, Inc., 339 A.3d 758, 763 (D.C. 2025) (quoting Moore v. Jones, 542

A.2d 1253, 1255 (D.C. 1988)). And, to ascertain whether there is a well-defined

public policy that is not spelled out in laws but that is contravened by an arbitral

award, we are obliged to look to “legal precedents.” D.C. Metro. Police Dep’t v.

D.C. Pub. Emp. Rels. Bd., 901 A.2d at 789.

That said, as we observed in Thomas I, “[c]ourts around the country have

divided when confronting” issues similar to the one presented here, 282 A.3d at 606,

making the precedents difficult to categorize and apply. Nonetheless, our assessment

is that, generally, where appellate courts have vacated or affirmed the vacatur of

arbitrators’ decisions reinstating police officers or other law enforcement (including

correctional) officers on the ground that any discipline short of termination would

offend public policy, the misconduct pertained to one or more of the following:

abuse or exploitation of vulnerable individuals (including arrestees or inmates) or 24

some other abuse of power; multiple instances of dishonesty; a failure to

acknowledge the misconduct; or reinstatement with lenient or no sanctions. See, e.g.,

City of Boston v. Boston Police Patrolmen’s Ass’n, 824 N.E.2d 855, 857, 861 (Mass.

2005) (holding that reinstatement of police officer in favor of a one-year suspension

would offend public policy “[g]iven the arbitrator’s findings that [the officer] had

falsely arrested two individuals on misdemeanor and felony charges, lied in sworn

testimony and over a period of two years about his official conduct, and knowingly

and intentionally squandered the resources of the criminal justice system on false

pretexts,” facts showing “egregious dishonesty” and lack of integrity); City of Seattle

v. Seattle Police Officers’ Guild, 484 P.3d 485, 489, 503 (Wash. Ct. App. 2021)

(holding that reinstatement of officer with a 15-day suspension was “so lenient” as

to be contrary to public policy where the officer in question punched a handcuffed,

inebriated woman in the face hard enough to cause an orbital fracture); 19 Matter of

19 The City of Seattle court relied on an additional fact that we deem pertinent but that is not applicable here: that the Seattle Police Department (SPD) was subject to a consent decree, entered pursuant to 34 U.S.C. § 12601, that imposed on it an affirmative duty to “sufficiently discipline officers who engage in conduct that could contribute to an unlawful pattern or practice” of use of excessive force. Id. at 497. The U.S. Department of Justice had specifically found that the SPD engaged in an unconstitutional pattern of “the use of excessive force on subjects who were already restrained.” Id. at 497. The consent decree specifically provided (in language pertinent to the City of Seattle facts) that “[o]fficers normally should not use reportable force against handcuffed or otherwise restrained subjects unless necessary or reasonable under the circumstances to stop an assault, escape, or as necessary to fulfill other legitimate law enforcement objectives.” Id. The federal court overseeing the consent decree concluded “that any provision that implicates officer discipline 25

Bukowski (State of N.Y. Dept. of Corr. & Cmty. Supervision), 50 N.Y.S.3d 588, 590,

593 (App. Div. 2017) (vacating arbitrator’s decision reinstating correctional officer

who deliberately kicked an inmate in the groin, thereby rupturing his testicle, as

discipline for talking during inmate “count” and falsely denied having done so, a

factor that “differentiate[s] this case from prior determinations in which courts have

declined to disturb penalties imposed by arbitrators”); City of Brooklyn Ctr. v. L.

Enf’t Lab. Servs., 635 N.W.2d 236, 238-39, 244 (Minn. Ct. App. 2001) (vacating

arbitrator’s reinstatement award under the public policy exception in an “extreme

and unique” case involving “protracted outrageous behavior” by a police officer who

“repeatedly demonstrated a willingness to engage in sexual harassment”—including,

for example, by “conducting traffic stops of young women, which resulted in neither

the issuance of a citation nor a warning, apparently for the sole purpose of gathering

personal information about the young women or for making personal comments to

related to use-of-force inherently implicates . . . the [c]onsent [d]ecree’s purposes, and thus, must be consistent with them.” Id. at 498. Citing that language, the City of Seattle court observed that under the consent decree, the SPD was required to “sufficiently discipline officers who violate the . . . policies designed to ensure constitutional policing,” id., and that the reinstatement decision “runs directly counter to the policy requiring the City to impose sufficient discipline to deter future instances of misconduct,” id. at 504. In explaining why the lenient nontermination discipline that the arbitrator ordered was contrary to public policy, the City of Seattle court further reasoned that the requirements of the consent decree were implicated by “[e]ach [individual] arbitration award arising out of a disciplinary decision” and that “the public policy against the use of excessive force in policing bars reinstatement under the facts of this case.” Id. at 500, 507. 26

facilitate potential social relationships”—and who was the subject of complaints by

more than 30 women); Dep’t of Cent. Mgmt. Servs. v. AFSCME, 554 N.E.2d 759 (Ill

App. Ct. 1990) (vacating arbitral award reinstating correctional officer who

committed battery on an inmate who was in leg irons after the inmate threw food at

officers); cf. County of De Witt v. AFSCME, 699 N.E.2d 163, 167 (Ill. App. Ct. 1998)

(vacating arbitral award that reinstated nursing home employee who struck a senior-

citizen resident in the head, where the arbitrator “never determined that [the

employee] did not strike” the resident but “awarded complete reinstatement . . .

without the slightest reprimand”).

Cases that have upheld arbitral awards declining to terminate law-

enforcement officers who impermissibly used force appear, at least implicitly, to

have embraced the rationale that for public policy to require termination, there must

be a “plain indication of that policy through long governmental practice or statutory

enactments.” Muschany, 324 U.S. at 66, 67. See, e.g., City of Owasso v. FOP, 336

P.3d 1023, 1024 (Okla. Civ. App. 2014) (upholding arbitral award setting aside the

termination of an officer who stepped on an arrestee’s head and elbowed him three

times because he “believed the arrestee was going to spit on him,” where arbitrator

found that injury had not been established and cited the police department’s past

tolerance in meting out discipline, and where court discerned no evidence that the

officer was likely to again employ unreasonable force), and City of Minneapolis v. 27

Police Officers’ Fed’n, 566 N.W.2d 83 (Minn. Ct. App. 1997), a case cited by PERB,

involving a police officer who beat an arrestee with his fists and feet. Id. at 85. In

declining to disturb the arbitral award that reduced the officer’s termination to a

twenty-day suspension, the City of Minneapolis court observed that the record

showed “several instances where officers found to have used excessive force were

disciplined, but not discharged” and reasoned that “even within the Minneapolis

police department there is no well-defined policy or practice that officers found to

have used excessive force must be automatically discharged.” Id. at 90.

Compare the foregoing cases with a case in which the court remanded the

matter for further findings by the arbitrator, who had failed to consider the likelihood

that the law-enforcement officer’s misconduct would be repeated. See City of Des

Plaines v. Metro. All. of Police, Chapter No. 240, 30 N.E.3d 598, 606 (Ill. App. Ct.

2015) (arbitrator found that police officer, in three incidents, had punched or pushed

arrestees unnecessarily, failed to report the misconduct, and subsequently lied about

his actions; noting that the arbitrator failed to address whether there was a likelihood

that the officer would engage in similar misconduct involving the use of force in the

future, the court remanded the case, stating that “[w]ithout such a finding, we do not

have the necessary information to conclude that the arbitration award contravenes

public policy” and observing that “[i]f the arbitrator had entered his award based on 28

a ‘rational finding’ that [the officer] is unlikely to engage in the offending conduct

upon reinstatement, the court ‘would be obliged to affirm the award.’”).

Given the “extremely narrow” public-policy exception, we are persuaded that

the approaches taken in these cases must guide our analysis in this case for purposes

of adherence to the Supreme Court admonition that public policy “is to be

ascertained by reference to . . . legal precedents and not from general considerations

of supposed public interests.” W.R. Grace, 461 U.S. at 766 (citation modified).

Unlike in the foregoing cases in which an arbitral police-officer-reinstatement

award was overturned as contrary to public policy, there was no finding that the

officer, understanding the victim (here, Mr. Lemus) to be vulnerable, abused his

authority or assaulted him with vindictive or other ill intent. Further, the arbitrator

found that Officer Thomas exercised poor judgment and that his use of force was

not objectively reasonable, but not that he was dishonest. In addition, the arbitrator

prescribed a lengthy suspension and suggested “mandatory retraining” and, as

necessary, counseling and education (all of which, FOP acknowledged at oral

argument, the arbitrator’s decision left MPD free to require), which the arbitrator

thought “might well have deterred” any similar conduct by Officer Thomas in the

future. 29

To be sure, Mr. Lemus was grievously injured as a result of Officer Thomas’s

conduct; the arbitrator found, with ample justification, that Officer Thomas was

guilty of reckless endangerment under Maryland law; and MPD asserts that his

conduct amounted to felonious assault under District of Columbia law. But despite

the clear and well-defined public policy against police use of criminal violence, the

instant case is prevented from being among “the clearest of cases,” Roberts, 339

A.3d at 763, in which the “contrary to public policy” exception applies, because of

several factors: Officer Thomas’s claim, described and not specifically discredited

by either the arbitrator 20 or the Adverse Action Panel, that he shot Mr. Lemus

because he was “in fear for his life,” i.e., that he subjectively believed that he was in

imminent danger of death or severe bodily injury when Mr. Lemus reached into his

pocket; the divergence of views within MPD about whether Officer Thomas’s use

of force was justified; 21 Officer Thomas’s lack of disciplinary history; and the

20 Courts agree that “the factual findings of the arbitrator . . . are not subject to judicial review.” Burr Road, 114 A.3d at 158; Ngo v. Oppenheimer & Co., 834 F. App’x 675, 677 (2d Cir. 2021) (“[W]e accept the arbitrator’s factual findings.”); AFSCME v. State, 529 N.E.2d 534, 538 (Ill. 1988) (“[I]t is the arbitrator’s view of the facts [that the parties] have agreed to accept.”). 21 The arbitrator summarized the initial decisional steps within MPD as follows: MPD’s firearms training Branch concluded that the shooting was in conformance with their policies. Detective King of MPD IAD investigated and concluded that the shooting was justified. Detective King’s supervisor, Lt 30

arbitrator’s focus on Officer Thomas’s recklessness and on his putting both himself

and Mr. Lemus in harm’s way by exiting the residence (the primary misconduct, that

was “compounded” by the shooting). We note that the record contains no video

evidence of the shooting, and thus this is not a case in which video evidence

undermines the claim that the officer could have subjectively believed that his life

was in imminent danger when he fired the shots. And there is the example of Officer

Ford, about whom we know little except that he was disciplined but not discharged

even though his victim died from his wounds.

On this record, while we can agree that MPD had a sufficient basis to

terminate Officer Thomas as a management prerogative, and even though “general

considerations of supposed public interests” 22 might cause us to prefer a different

Middleton . . . disagreed with Detective King’s conclusion. . . . The Use of Force Review Board in a split decision agreed with Lt Middleton’s recommendation that Officer Thomas’ use of his service pistol was not justified. The Adverse Action Panel found that Officer Thomas’s use of deadly force was not objectively reasonable and that Officer Thomas exercised incredibly poor judgment, but made no finding as to whether Officer Thomas subjectively believed he was in imminent danger. 22 W.R. Grace, 461 U.S. at 766; Muschany, 324 U.S. at 66. 31

outcome, we decline to hold that the arbitral award is on its face contrary to a well-

defined public policy. 23

Wherefore, the judgment of the Superior Court upholding the PERB decision is affirmed. So Ordered.

BECKWITH, Associate Judge, dissenting: Under District of Columbia law,

someone who wants to become a police officer in the Metropolitan Police

Department is “ineligible” to do so if he was “previously determined by a law

enforcement agency to have committed serious misconduct, as determined by the

Chief by General Order.” D.C. Code § 5-107.01(f)(1) (2025). This statute—though

relatively recent—echoes a longstanding regulation stating that an individual who

“engage[s] in any conduct which would constitute a felony in the District of

Columbia” is “ineligible to become a police officer.” 6B D.C.M.R. § 873.11(a)

(2009). In this case, it is beyond serious question that Michael Thomas’s act of

23 Notably, in D.C. Dep’t of Corr. v. Teamsters Union Loc. No. 246 (Teamsters), 554 A.2d 319 (D.C. 1989), this court affirmed a PERB decision that sustained an arbitrator’s decision reducing the adverse action against a correctional officer from termination to a thirty-day suspension even though the correctional officer had hit a former inmate with a hammer in a drug deal gone bad, conduct that led to a charge of assault with a dangerous weapon, a felony (though the officer was convicted of the lesser offense of misdemeanor simple assault, pursuant to a plea bargain). See id. at 320, 321. Thus, the instant case is not the first in which we have declined to overturn on public policy grounds an arbitral award reinstating a law enforcement officer who (allegedly) committed a felonious assault. 32

shooting an unarmed man twice and nearly killing him—when, according to the

arbitrator, that man, Julio Lemus, “was not breaking into the car, damaging the car

or committing any crime”—constituted a felony in the District of Columbia. And

although Officer Thomas had been on the force for three years when he shot Mr.

Lemus, the court acknowledges that “[t]here is some force to MPD’s argument that

public policy regarding whether to retain officers who have engaged in the unlawful

use of deadly force (or some other felonious criminal act) should be the same as

public policy regarding the hiring of police officers.” Ante at 17.

In my view, MPD’s argument has enough force to be dispositive in

demonstrating that the arbitral award—which rejected MPD’s termination of Officer

Thomas and instead suspended him for 45 days—on its face violated a “well defined

and dominant public policy,” not simply a “general consideration[] of [a] supposed

public interest[].” D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd., 282 A.3d

598, 606 (D.C. 2022) (quoting D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels.

Bd., 901 A.2d 784, 789 (D.C. 2006)). If—as the District has determined—

individuals who have engaged in felonious misconduct are not fit to be MPD officers

in the first instance, then individuals who have already received MPD training and

still go on to shoot and gravely injure unarmed people without justification are

equally “ineligible” for the job. See City of Boston v. Bos. Police Patrolmen’s Ass’n,

824 N.E.2d 855, 861-62 (Mass. 2005) (“[B]y implication,” laws that “forbid[] 33

persons found to have engaged in [felonious] conduct from being police officers”

likewise preclude them “from remaining police officers.”).

The court’s reason for ultimately rejecting the force of MPD’s public policy

argument does not convince me otherwise. The court concludes that D.C. Code

§ 5-107.01(f) and 6B D.C.M.R. § 873.11 do not establish a dominant public policy

against hiring and reinstating MPD officers who have engaged in felonious

misconduct because of the significance my colleagues accord to the D.C. Council’s

decision to delay the effective date of a police reform measure it enacted to replace

the negotiated grievance process in prior MPD collective bargaining agreements

with a system that put MPD management in sole control of sworn officers’

discipline. Specifically, the Comprehensive Policing and Justice Reform Emergency

Amendment Act of 2020 1 included a provision requiring that “[a]ll matters

pertaining to the discipline of sworn law enforcement personal shall be retained by

management and”—contrary to previous practice—shall no longer “be negotiable”

as part of a collective bargaining agreement. See Comprehensive Policing and

Justice Reform Emergency Amendment Act of 2020, D.C. Act 23-774, § 116, 67

1 Two years later, the Council passed the Comprehensive Policing and Justice Reform Amendment Act of 2022, which—among other things—made permanent the Emergency Amendment Act of 2020’s transfer of disciplinary power from a matter subject to collective bargaining to an issue under the sole discretion of MPD management. D.C. Law 24-345, § 116(b), 70 D.C. Reg. 953 (2022) (codified at D.C. Code § 1-617.08(c)(1)). 34

D.C. Reg. 12993 (2020) (codified at D.C. Code § 1-617.08(c)(1)). Unlike other parts

of the Act, this subsection was not immediately effective—instead, it delayed

transfer of complete disciplinary power to MPD management until September 30,

2020, the date a new collective bargaining agreement between the Fraternal Order

of Police and the MPD Labor Committee was set to be renegotiated or renewed.

D.C. Act 23-774, § 116; D.C. Code § 1-617.08(c)(2); see Fraternal Ord. of Police,

Metro. Police Dep’t Lab. Comm., D.C. Police Union v. District of Columbia, 502

F. Supp. 3d 45, 51 (D.D.C. 2020) (stating that the relevant collective bargaining

agreement was “effective through September 30, 2020, and automatically renewed

for one-year periods thereafter”), aff’d, 45 F.4th 954 (D.C. Cir. 2022); Collective

Bargaining Agreement Between District of Columbia Government Department of

General Services and Fraternal Order of Police/Protective Services Division Labor

Committee, at 30 (approved Sept. 28, 2017); https://perma.cc/4CML-D4PZ. This

amounted to a ten-week delay between the time the Mayor signed the Act into law

and the date the subsection went into effect.

In the view of my colleagues, this decision by the Council to delay

implementation of D.C. Code § 1-617.08(c)(1) shows that the public policy

embodied in 6B D.C.M.R. § 873.11 and D.C. Code § 5-107.01—favoring excluding

individuals who have engaged in the criminal use of deadly force from the D.C.

police force—was not as consequential as MPD suggests. The court’s reasoning is 35

based on what it sees as the competing public-policy consideration evidenced by

D.C. Code § 1-617.08(c)(2)—namely, as the court characterizes it, “this Nation’s

longstanding labor policy” to give “employers and employees the freedom through

collective bargaining to establish conditions of employment.” 2 Ante at 20 (quoting

Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 608 (1980)).

At the outset, that neither PERB nor the union has made this argument makes

me question whether it should be the basis of our conclusion that suspending Officer

Thomas for 45 days was not on its face contrary to public policy. See, e.g., Cox v.

United States, 325 A.3d 360, 372 (D.C. 2024) (“This court does not normally

consider arguments that the parties have not raised.”). It is not obvious, moreover,

why a separate statute, in a separate part of the D.C. Code, addressing a separate

issue has any meaningful effect on the clarity or dominance of the public policy

established by 6B D.C.M.R. § 873.11 and reinforced by D.C. Code § 5-107.01.

2 Regardless of the standard of review we generally apply to PERB’s interpretation of its own statutes and implementing regulations, including 6B D.C.M.R. § 873.11, no deference is appropriate here where the Board “did not conduct ‘any analysis of the language, structure, or purpose of’” the regulation. Proctor v. D.C. Dep’t of Emp. Servs., 737 A.2d 534, 538 (D.C. 1999) (quoting Mushroom Transp. v. D.C. Dep’t of Emp. Servs., 698 A.2d 430, 433 (D.C. 1997)). And as to D.C. Code § 5-107.01(f), more specifically, we have declined to “defer to PERB in interpreting statutes other than the” Comprehensive Merit Personnel Act. D.C. Fire & Emergency Med. Servs. Dep’t v. D.C. Pub. Emp. Rels. Bd., 105 A.3d 992, 996 (D.C. 2014). 36

But more fundamentally, the Council’s decision to delay the end of the

negotiated grievance process was not so much evidence of a competing policy

favoring the freedom to bargain collectively over conditions of employment as it

was a temporary measure that avoided violating the Contract Clause’s prohibition

against laws that retrospectively “impair[] the obligation of contracts.” U.S. Const.

art. 1, § 10, cl. 1; see D.C. Code § 1-203.02 (extending the Contract Clause to the

District of Columbia); see also Fraternal Ord. of Police, 45 F.4th at 961 (rejecting

FOP’s Contract Clause challenge to D.C. Code § 1-617.08(c)(1) because the clause

“applies only to laws with retrospective, not prospective, effect,” and because

subsection 1-617.08(c)(1) “applied only to collective bargaining agreements entered

into after the parties’ 2017 Agreement expired on September 30, 2020” (quoting

Loc. Div. 598, Amalgamated Transit Union v. Massachusetts, 666 F.2d 618, 637 (1st

Cir. 1981))). And the fact that the new statute “grandfather[s] the negotiated

grievance process for the time window specified in the legislation,” ante at 19, does

not mean that the new statute “grandfathers” other collectively-bargained-for rights.

In sum, the D.C. Council and the D.C. Department of Human Services have

reflected the District’s concern that residents be safe from violent and irresponsible

police officers by establishing a well—defined and dominant public policy

prohibiting individuals who have committed felonies from serving in the MPD. 37

Because enforcement of the arbitrator’s award was clearly contrary to that public

policy, I respectfully dissent.