Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CV-0220
CRAIG ROYAL, APPELLANT,
v.
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT
and
DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, APPELLEES.
Appeal from the Superior Court of the District of Columbia (2019-CA-004173-P(MPA)) (Hon. Fern Flanagan Saddler, Trial Judge)
(Argued January 4, 2024 Decided May 2, 2024)
Daniel S. Crowley, with whom Katelyn A. Clarke was on the brief, for appellant.
Alex Fumelli, 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 Thais-Lyn Trayer, Deputy Solicitor General, were on the brief, for appellee District of Columbia Metropolitan Police Department.
Lasheka Brown, General Counsel of the District of Columbia Office of Employee Appeals, filed a Statement in Lieu of Brief on behalf of appellee Office of Employee Appeals. 2
Before BECKWITH and SHANKER, Associate Judges, and GLICKMAN, Senior Judge.
GLICKMAN, Senior Judge: Appellant Craig Royal is a lieutenant with the
Metropolitan Police Department (MPD). Before the Office of Employee Appeals
(OEA), he challenged two decisions of the MPD to suspend him without pay. The
first suspension, for a period of fifteen days, was for Lt. Royal’s allegedly deficient
response to an incident of possible domestic violence on February 7, 2015. The
second suspension, for twenty days, was for using unnecessary force in an off-duty
altercation on April 16, 2015, and for “inefficiency” in the performance of his duties
apart from that matter. The inefficiency charge was based on three sustained adverse
actions within a 16-month period, namely, his suspension for the February 2015
incident and two earlier suspensions.
After an evidentiary hearing, an OEA Administrative Judge (AJ) concluded
that the MPD failed to prove either the February 2015 misconduct charges or the
April 2015 unnecessary force charge on which it had relied. But while the AJ
therefore reversed Lt. Royal’s 15-day suspension, he did not overturn the 20-day
suspension. The AJ upheld that suspension based on other charges concerning
Lt. Royal’s conduct in the April 2015 incident that the MPD itself had considered
and rejected, and on the inefficiency charge. The AJ did not explain why he upheld
the inefficiency charge even though he had rejected the February 2015 complaints 3
on which that charge was partly grounded. The Superior Court affirmed the AJ’s
decision on Lt. Royal’s petition for review.
In this court, Lt. Royal contends he is entitled to reversal of his 20-day
suspension as well as his 15-day suspension because the OEA exceeded its authority
by basing its decision on charges that the MPD itself had not sustained and for which
the MPD had not sanctioned him, and because the OEA’s determination regarding
the inefficiency charge was not supported by substantial evidence. For the reasons
that follow, we agree with Lt. Royal’s contentions. Accordingly, we reverse the
OEA’s determination upholding the 20-day suspension. We leave in effect that
portion of the OEA’s order relating to the 15-day suspension.
I.
A. The February 2015 Incident
On February 7, 2015, Lt. Royal was off duty and at his residence—an
apartment building he owned in Northwest D.C.—when he heard a woman’s
screams coming from inside one of the other apartments. Lt. Royal went to that
apartment, concluded there had been a quarrel but the woman had not been harmed
or assaulted, and escorted her out of the building. In its notice of proposed adverse
action, the MPD faulted Lt. Royal’s response as a “[f]ailure to obey orders or 4
directives issued by the Chief of Police” and proposed imposition of a 15-day
suspension as the penalty. The notice alleged three specific violations by Lt. Royal:
Specification No. 1: In that, on February 7, 2015, while off-duty, you responded to . . . Apartment #23, because you heard what you believed was an assault in progress. Once inside the apartment you made only a minimal attempt to determine what had transpired and thus failed to properly handle the domestic violence assault that had taken place [in violation of his duty as the first officer on the scene to “[d]etermine whether a crime has been committed and, if so, the exact nature of the event.”]
Specification No. 2: . . . Once inside the apartment you failed to obtain translation services to ensure you could properly understand the subjects inside the apartment [in violation of his duty to provide language access services “[i]n every circumstance where limited or no-English proficient (LEP/NEP) persons and MPD members need to communicate.”]
Specification No. 3: . . . Once on the scene you took police action without notifying on-duty members of the department either prior to or after your actions.
Lt. Royal appealed the proposed adverse action, and the Director of the
MPD’s Human Resource Management Division issued a final notice on August 27,
2015, affirming the 15-day suspension. Lt. Royal appealed that decision to the Chief
of Police, who denied the appeal on October 2, 2015. Lt. Royal then appealed the
matter to the Office of Employee Appeals. 5
B. The April 2015 Incident
On April 16, 2015, Lt. Royal was off duty and out of uniform when he
observed a construction van pull into his apartment building’s private parking lot
and park there in violation of no-parking signs. Lt. Royal approached the driver of
the van and told him he could not park there, but the driver did not immediately
move the vehicle; according to the driver’s later testimony, he did not have the keys
and called a fellow construction worker to bring them. Seeking to have the van
ticketed, Lt. Royal retrieved his “less than lethal” police weapons, moved his
parents’ minivan to block the vehicle from leaving the parking lot, and then called
the police. While he waited, the van’s driver returned with a second person. They
proceeded to maneuver a car that was parked in the lot around the minivan.
Believing he saw the car strike the minivan and then drive off, Lt. Royal called 911
to report the “accident” and followed the construction van on foot.
During the 911 call, the two construction workers got out of the van and
confronted Lt. Royal. Lt. Royal was not in uniform and he did not identify himself
to the men as a police officer. A heated confrontation ensued. According to
Lt. Royal, the men threatened him, moved aggressively toward him, and ignored his
repeated orders to back off even after he pulled out his police baton and a canister
of Oleoresin Capsicum (“OC”) spray (a deterrent similar to pepper spray). As the 6
men continued to close in on him and threatened to beat him up, Lt. Royal attempted
to discharge his OC spray at them. The spray malfunctioned, however, and did not
affect anyone. Lt. Royal then retreated to his apartment and awaited the arrival of
the police he had summoned, to whom he reported what had occurred.
In November 2015, the MPD’s Disciplinary Review Branch proposed that
Lt. Royal be terminated from the police force. The notice of proposed adverse action
listed seven charges of misconduct. Six of the charges related to the April 16
encounter at the parking lot. They included charges of making a false report of
damage to his parents’ minivan, unnecessary or unreasonable employment of force
in resorting to the use of the OC spray, failure to notify on-duty officers before taking
police action, and failing to care for a suspect in his custody after employing the OC
spray.
The seventh charge was for “inefficiency as evidenced by repeated and
well-founded complaints from superior officers, or others, concerning the
performance of police duty, or the neglect of duty.” This charge was not based
on complaints pertaining to the April 16 encounter at all, but rather rested on the
previously sustained charges of misconduct in the February 7, 2015, incident
and two earlier disciplinary actions against Lt. Royal—a three-day suspension
imposed in July 2014 for failure to complete and submit an investigation on time, 7
and a two-day suspension imposed in January 2015 for improper conduct with a
subject while in an off-duty status.
Lt. Royal requested a hearing before an adverse action panel to contest the
proposed termination. The panel heard witness testimony and reviewed evidence on
April 19 and May 2, 2016. The panel sustained only two of the seven proposed
charges—Charge 4 and Charge 7—and found Lt. Royal “not guilty” of the other five
charges. The panel made findings with respect to each charge. It found Lt. Royal
guilty of Charge 4 because he “intentionally created and then escalated the situation
to the point that he had no choice but to use force” (i.e., his deployment of the OC
spray). With respect to Charge 7, “[t]he Panel after reviewing the findings and
merits of each case concluded that, although the conduct occurred over a sixteen-
month period, there was a sustained pattern of misconduct that rose to the level of
inefficiency.” 1 In lieu of the initially proposed sanction of termination, the panel
1 As we explain below, the General Order defining the charge of inefficiency provides, inter alia, that “[t]hree sustained Adverse Actions within a 12-month period upon charges involving misconduct . . . shall be prima facie evidence of inefficiency” (emphasis added). MPD General Order 120.21. In Lt. Royal’s case, the amended specification of Charge 7 explained that the three sustained adverse actions against him within a sixteen-month period, “while not prima facie evidence of inefficiency, point to a pattern of sustained misconduct which in and of itself is evidence of inefficiency.” 8
recommended a 10-day suspension on Charge 4 and a consecutive 15-day
suspension on Charge 7.
Lt. Royal appealed the panel’s decision to the director of the MPD’s Human
Resource Management Division, who reduced the suspension on Charge 7 to ten
days, and then to the Chief of Police, who affirmed the aggregate 20-day suspension
on April 12, 2017. Lt. Royal then appealed to the OEA.
C. OEA Proceedings
Lt. Royal’s two appeals were assigned to Administrative Judge Lim and were
consolidated at the parties’ request. The parties’ submissions included stipulations
of fact. After receiving them, and in light of the parties’ remaining disagreements,
AJ Lim held an evidentiary hearing to resolve disputed factual issues. Afterwards,
both Lt. Royal and the MPD submitted post-hearing briefs. Their arguments focused
on whether the evidence supported the three charges underlying the 15-day
suspension and the two charges—Charges 4 and 7—on which the 20-day suspension
was based. Neither party even addressed the charges on which the adverse action
panel had found Lt. Royal not guilty; the MPD never argued for upholding his
suspension on the basis of those charges. 9
AJ Lim issued the OEA’s Initial Decision on April 29, 2019.2 With respect
to the February 2015 incident, AJ Lim found that Lt. Royal disproved each of the
three charges and established by a preponderance of the evidence that he did not
violate the MPD’s regulations. More specifically, the AJ found that no domestic
violence assault had occurred, that Lt. Royal had reasonably determined that
translation services were not needed, and that “as there was no assault, [Lt. Royal]
had no duty to notify the police.” Accordingly, the AJ reversed the 15-day
suspension.
With respect to the April 2015 incident, AJ Lim also found in Lt. Royal’s
favor on Charge 4. He explained this determination as follows:
The sole specification for Charge 4 alleges that, on April 16, 2015, while off-duty and at the scene . . . [Lt. Royal] unjustifiabl[y] used OC Spray in a manner that escalated conflict. Based on the facts in this matter, I find that while [Lt. Royal] should have first used verbal persuasion and a declaration that he is a police officer before using an OC Spray, he then found himself in reasonable fear of imminent attack when [the men he confronted] approached him in a threatening manner. I therefore find that [MPD] did not prove by a preponderance of the
2 An Initial Decision becomes a final decision of the OEA thirty-five calendar days after issuance unless a party to the proceeding files a timely petition for review with the OEA or in Superior Court. See 6B D.C.M.R. § 635. 10
evidence that [Lt. Royal’s] use of the OC Spray at that point was unjustified.
The AJ upheld Charge 7, however. He explained this decision as follows:
The sole specification for this charge alleges that, during the past twelve (12) [sic 3] months, [Lt. Royal] had three complaints lodged against him for which he was suspended from duty. [MPD] listed [one of the complaints arising from the February 2015 incident and the two complaints relating to the two earlier incidents.] [Lt. Royal] does not deny having these priors in his work record. Thus, I find that [MPD] proved by a preponderance of the evidence that [Lt. Royal] is guilty of Inefficiency.
The AJ did not explain why he relied on Lt. Royal’s suspension based on the
February 2015 incident to support his inefficiency finding after having determined
that Lt. Royal had disproved the charges connected with that incident.
By themselves, the AJ’s findings as to Charges 4 and 7 would have supported
a reduction of Lt. Royal’s suspension from twenty days to ten days (given that the
MPD had assessed a ten-day penalty for each sustained charge). However, despite
neither party having requested it, AJ Lim on his own initiative also considered
whether Lt. Royal’s conduct in the April 2015 altercation supported any of the five
other proposed charges arising out of the April 2015 altercation. The AJ did not
3 AJ Lim noted elsewhere that the MPD had amended the specification for Charge 7 to provide that it covered a period of sixteen months rather than twelve months. 11
explain why he addressed charges that were not the basis for the suspension at issue.
It appears he did so without fully appreciating that the MPD’s adverse action panel
had acquitted Lt. Royal of those five charges and had not based its proposed sanction
on them or sought to establish them on appeal.4 The AJ concluded that two of those
charges—Charges 2 and 3—were supported by a preponderance of the evidence
(while Charges 1, 5, and 6, in addition to Charge 4, were not).
Charges 2 and 3, like Charge 4, related to Lt. Royal’s use of OC Spray and
asserted violations of MPD prohibitions on the use of unnecessary force. The AJ
found that Lt. Royal violated Charge 2 because he failed to give verbal warnings
before he used his OC Spray, and Charge 3 because he lacked “legal cause to detain”
the complainants or to “block their exit just to ascertain that they [would] receive
parking tickets.”
Based on his findings that a preponderance of the evidence supported Charges
2 and 3 in addition to Charge 7, the AJ upheld the 20-day suspension as reasonable
and appropriate.
4 We say this because the AJ’s opinion lists all the charges and discusses whether the MPD met its burden of proving each one of them by a preponderance of the evidence, without acknowledging that the MPD itself found Lt. Royal not guilty of five of the charges and did not rely on those charges or purport to have proven them. 12
D. The Appeals to Superior Court and This Court
Lt. Royal filed a petition for review of the OEA’s decision in Superior Court,
contending inter alia that the OEA did not have jurisdiction to uphold his suspension
based on Charges 2 and 3, and that the AJ’s decision to sustain Charge 7 was not
supported by substantial evidence. The court disagreed with those contentions and
denied the petition on March 7, 2022, thereby affirming the OEA decision. Lt. Royal
then took the instant appeal to this court, where he renews those two challenges.
The MPD did not seek relief in Superior Court, and it has not cross-appealed.
It thus has not challenged the AJ’s decision overturning Lt. Royal’s suspension for
his conduct in the February 2015 incident, nor the AJ’s determination that the MPD
did not prove Charge 4 in connection with the April 2015 incident.
II.
Although this case is before us on appeal from the Superior Court, “we review
the OEA’s decision as though ‘the appeal had been taken directly to this court.’”5
To survive that review, the decision “must state findings of fact on each material
contested factual issue; those findings must be supported by substantial evidence in
5 Brown v. Watts, 993 A.2d 529, 532 (D.C. 2010) (quoting District of Columbia Dep’t of Pub. Works v. Colbert, 874 A.2d 353, 358 (D.C. 2005)). 13
the [OEA] record; and the [OEA’s] conclusions of law must follow rationally from
its findings.”6 We will not affirm a decision if it is arbitrary, capricious, or an abuse
of discretion, 7 or if it exceeds the OEA’s statutory authority. 8
A. The OEA’s “Jurisdiction” to Consider Charges 2 and 3
The first issue we address is whether the OEA had what has been termed
“jurisdiction” to consider Charge 2 and Charge 3 after the MPD Adverse action panel
found Lt. Royal not guilty of those two charges. Lt. Royal argues that the OEA
exceeded its jurisdiction because Charges 2 and 3 were not part of the final agency
decision. With a caveat regarding the appropriate terminology, we agree with
Lt. Royal that the OEA’s adjudicative authority does not extend to charges on which
the agency did not rely.
The OEA is authorized by law to “review the record and uphold, reverse, or
modify” an agency decision removing a District employee from service or
6 D.C. Fire and Med. Servs. Dep’t v. D.C. Off. of Emp. App., 986 A.2d 419, 424 (D.C. 2010) (internal quotation marks omitted). 7 Brown, 993 A.2d at 532. 8 District of Columbia v. 17M Associates, LLC, 98 A.3d 954, 959 (D.C. 2014) (“An administrative agency is a creature of statute and may not act in excess of its statutory authority.” (internal quotation marks omitted)). 14
suspending the employee for ten days or more. 9 A reviewable “final agency
decision” is defined as “a written document from a District agency which contains
the cause of action taken by the District agency against an employee.” 10
The scope of this adjudicative authority has been characterized, somewhat
imprecisely, as a question of agency “jurisdiction”; thus, the Rules and Regulations
of the Office of Employee Appeals in the Code of Municipal Regulations state that
the OEA’s “jurisdiction” to conduct such review is confined to “final agency
decision[s] affecting” the removal or suspension.11 As we have explained, this
terminology can be misleading. Although we may sometimes speak of the OEA’s
jurisdiction, “jurisdictional doctrines applicable to courts cannot be directly
transposed onto administrative agencies.”12 Therefore, we “ask not whether an
agency has jurisdiction over a party or a dispute in the traditional sense of the term,
9 D.C. Code § 1-606.03(b). 10 6B D.C.M.R. § 699.1. 11 Id. § 604.1 (“Jurisdiction”). 12 AFGE Nat’l Off. v. D.C. Pub. Emp. Rels. Bd., 237 A.3d 81, 86 (D.C. 2020). 15
but ‘whether the statutory text [or implementing rule] forecloses the agency’s
assertion of authority, or not.’” 13
The OEA’s oversight function in appeals of agency disciplinary actions is a
limited one. “[T]he OEA is not to substitute its judgment for that of the agency[;]
its role . . . is simply to ensure that ‘managerial discretion has been legitimately
invoked and properly exercised.’” 14 We understand this to mean that the OEA must
focus on the soundness of the charges that the agency actually sustained and relied
upon in imposing it. It exceeds the OEA’s role to consider other possible reasons
for disciplining the employee that the agency did not pursue or rejected. The OEA’s
role is not to second-guess an agency’s deliberate decision to acquit an employee of
charges.
Thus, in the present case, the OEA had the authority to review the soundness
of the MPD’s “final agency decision” to impose a 20-day suspension on Lt. Royal.
But that decision was based on and “contained” only the charges of which the MPD
had found Lt. Royal guilty, Charges 4 and 7. Those two charges constituted the
13 Id. (quoting City of Arlington v. FCC, 569 U.S. 290, 301 (2013)). 14 Raphael v. Okyiri, 740 A.2d 935, 945 (D.C. 1999) (quoting Douglas v. Veterans Admin., 5 M.S.P.B. 313, 328, 5 M.S.P.R. 280, 301 (1981)); accord Office of D.C. Controller v. Frost, 638 A.2d 657, 660 (D.C. 1994) (quoting Stokes v. District of Columbia, 502 A.2d 1006, 1009-10 (D.C. 1985) (quoting Douglas, supra)). 16
entire “cause” contained in the final MPD decision of the “action taken” against
Lt. Royal that he appealed to the OEA. Charges 2 and 3 were not part of the “cause”
contained in that final agency decision because the MPD had concluded that
Lt. Royal was not guilty of those charges. Nor were Charges 2 and 3 the cause, in
whole or part, of any other “final agency decision affecting” Lt. Royal’s removal,
suspension, or any other appealable adverse action taken against him. And no one
purported to appeal Lt. Royal’s acquittals to the OEA. In fact, in its brief before the
OEA, the MPD took the position that the adverse action panel’s conclusions
regarding a charge on which it found Lt. Royal not guilty were “irrelevant to this
appeal.”
It follows that the OEA’s authorized power to review the MPD’s final decision
to suspend Lt. Royal was limited to determining whether Charges 4 and 7 constituted
good cause for that decision. Because Charges 2 and 3 were not the cause of the
MPD’s reviewable action, the OEA lacked authority to consider whether those
charges could sustain the suspension. The MPD’s discretionary decision to acquit
Lt. Royal of Charges 2 and 3 was not reviewable.15
15 On appeal, the MPD argues that the words “cause of action” in the definition of a “final agency decision” refer to “the relevant nucleus of facts supporting a legal claim or charge, rather than the claim or charge itself,” and that the OEA therefore had independent jurisdiction to reconsider charges on which the MPD had acquitted 17
This conclusion is compelled, as well, by considerations of fairness to the
employee, who is entitled to notice of the charges against which he must defend. In
Frost, this court held that the OEA erred in upholding discipline based on its finding
of a violation with which the employee had not been charged by the agency; in such
circumstances, we explained, the employee had no notice and “could not have been
expected to prepare to defend against” the charge before the OEA. 16
The situation in this case is analogous to that in Frost. The MPD did not rely
on Charges 2 and 3 before the OEA, Lt. Royal did not have notice that the OEA
Lt. Royal. We consider this an unduly expansive reading of the definition of a “final agency decision.” That definition focuses on what the agency decision identifies as the “cause” of the disciplinary “action taken by the District agency against an employee.” 6B D.C.M.R. § 699.1. Only charges that the agency sustained against the employee can be said to constitute that “cause”; not charges the agency rejected or never considered. The MPD also asserts that there was “significant overlap between Charges 2, 3, and 4” and that “[i]t can hardly be reversible error for OEA, on de novo review, to choose to evaluate these identical or near-identical charges slightly differently from the Adverse Action Panel.” However, we need not consider this argument because we conclude that the OEA did not have authority to consider the unsustained charges at all. See Goto v. D.C. Bd. of Zoning Adjustment, 423 A.2d 917, 928 (D.C. 1980) (Kelly, J., concurring) (“[A]n agency’s faulty interpretation of its governing jurisdictional regulations can never be harmless error.”). 16 Frost, 638 A.2d at 663. 18
would consider those two charges, and he therefore had no reason to address them
on appeal and did not do so.17
We appreciate that Frost held that the OEA could not uphold discipline based
on a charge against the employee that the agency had not levied in the first place,
rather than (as here) a charge on which the agency actually had acquitted the
employee. 18 However, we consider that difference immaterial. In either situation,
the employee was not on notice that the OEA might uphold the agency’s disciplinary
action based on charges other than those the agency relied upon.
17 The MPD argues that the OEA itself put Lt. Royal on notice that it would reconsider his guilt of all the charges he had faced, including those on which the MPD had acquitted him, because AJ Lim’s order consolidating Lt. Royal’s two appeals described the relevant “issue” for briefing as “[w]hether [the MPD] has cause for adverse action against [Lt. Royal].” We disagree for two reasons. First, the general language used by AJ Lim does not at all make clear that he would consider whether charges that the MPD itself had dismissed might constitute cause for the MPD’s adverse action. The MPD itself did not understand that. Second, the MPD’s argument that AJ Lim gave Lt. Royal the necessary notice that acquitted charges would be considered rests on the assumption that the OEA actually has the authority to determine the charges and discipline an employee in the first instance, or to second-guess an agency’s decision to acquit an employee of charges. But as explained above, that assumption is incorrect; the OEA’s review authority does not extend that far. An AJ cannot expand the scope of the issues on appeal by mere fiat. If one proceeds with a proper understanding of the OEA’s limited appellate authority, framing the issue before the OEA as whether the employer agency has cause for adverse action against the employee cannot serve to put the employee on notice that the OEA can consider charges that the agency did not rely on and acquitted the employee of. 18 See id. 19
For the foregoing reasons, we hold that AJ Lim erred in considering Charges
2 and 3 sua sponte, and in relying on their validity in his decision to uphold
Lt. Royal’s 20-day suspension.
B. The Evidence Supporting Charge 7
The second issue is whether there is substantial evidence to support the OEA’s
affirmance of Charge 7, for inefficiency, against Lt. Royal. An MPD General Order,
relied upon in this case, defines inefficiency as follows:
Inefficiency as evidenced by repeated and well-founded complaints from superior officers, or others, concerning the performance of police duty, or the neglect of duty. Three sustained Adverse Actions within a 12-month period upon charges involving misconduct, as provided in this section, shall be prima facie evidence of inefficiency. The Adverse Action charges need not be related.19
Lt. Royal argues that there are two independently sufficient reasons Charge 7
was not supported by substantial evidence: (1) The MPD needed to prove a “prima
facie” case of inefficiency as described in the General Order, and it failed to do so
because the three sustained adverse actions on which the MPD relied were not within
19 MPD General Order 120.21; see also 6A D.C.M.R. § 1001.7 (“Three convictions before trial boards or any summary hearings as authorized by the Mayor, or both, within a period of twelve (12) months upon charges involving violations of the rules and regulations of the department shall be prima facie evidence of inefficiency.”). 20
a twelve-month period; and (2) the charge of inefficiency rested in part on the
February 2015 charges, and AJ Lim found that the evidence did not support those
charges. We address each of these arguments in turn.
1. The “Prima Facie Evidence” Criterion
The definition of inefficiency in General Order 120.21 provides two
descriptions of “inefficiency” for which an officer may be disciplined. The first
description refers to inefficiency “as evidenced by repeated and well-founded
complaints from superior officers, or others, concerning the performance of police
duty, or the neglect of duty.” 20 The phrasing “as evidenced by” implies that
“repeated and well-founded complaints” regarding performance or neglect of duty
are necessary for a finding of inefficiency (other kinds of complaints appear to be
excluded), if not always sufficient for such a finding. (They might be found
insufficient if, for example, the complaints are rebutted or mitigated, or there exist
other requirements for a finding of inefficiency that are not satisfied).
The second description states that “[t]hree sustained Adverse Actions within
a 12-month period upon charges involving misconduct” shall be “prima facie
20 MPD General Order 120.21. 21
evidence” of inefficiency. 21 The term “prima facie evidence” is commonly
understood to mean “[e]vidence that will establish a fact or sustain a judgment unless
contradictory evidence is produced.”22 When unrefuted, prima facie evidence is
sufficient to support a particular finding. But while certain evidence may be deemed
sufficient, that particular evidence may not be necessary. Other evidence may also
constitute sufficient proof of the fact to be established. 23 The second description of
inefficiency therefore can be viewed as a subset of the first, i.e., three sustained
adverse actions in a twelve-month period will suffice to constitute the requisite
“repeated and well-founded complaints” for a finding of inefficiency, but other
evidence of a pattern of well-founded complaints may be judged sufficient as well.
Lt. Royal posits a stronger connection between the two descriptions of
inefficiency; he argues that the second description must be understood as providing
21 Id. 22 Prima facie evidence, BLACK’S LAW DICTIONARY (11th ed. 2019); see, e.g., Am. Studies Ass’n v. Bronner, 259 A.3d 728, 744 n.57 (D.C. 2021). 23 See, e.g., D.C. Code § 23-1327 (b)-(c) (providing that “[a]ny failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful,” but that factfinders may consider other evidence in finding that a failure to appear is willful). To give another example, we have said that “a rebuttable presumption that any person driving a car does so with the consent of the registered owner” is “prima facie evidence” of the owner’s vicarious liability for a traffic accident or infraction involving that car. Agomo v. Fenty, 916 A.2d 181, 192 (D.C. 2007). Obviously, however, the owner’s consent may be proved or disproved by evidence apart from the presumption (and such proof may be necessary to establish the owner’s vicarious liability when there is rebuttal evidence). 22
a limiting definition of “repeated and well-founded complaints,” and that it sets forth
the one and only way that a charge of inefficiency can be proved. Otherwise, he
argues, the second description serves no purpose and is meaningless. However, this
is clearly not the MPD’s own interpretation of its definition of inefficiency, as
demonstrated by the Amended Notice of Proposed Adverse Action, the Adverse
action panel’s finding that three sustained adverse actions against Lt. Royal sufficed
to prove the charge of inefficiency even though they occurred during a sixteen-
month period rather than within a period of only twelve months, and the MPD’s
testimony before the OEA. Additionally, specifying that three sustained adverse
actions in twelve months will establish a prima facie case is certainly helpful and
meaningful even if other evidence of a series of well-founded complaints may also
prove inefficiency. It removes uncertainty in many circumstances and furnishes a
useful benchmark in evaluating whether alternative comparable evidence is serious
enough to justify a finding of inefficiency. On the other hand, viewing the specified
prima facie case as the only way to prove inefficiency is implausible because, if that
were so, the General Order’s first description of inefficiency would be superfluous.
We conclude that there is nothing implausible about the MPD’s understanding
that, while three sustained adverse actions within a twelve-month period will suffice
to prove a charge of inefficiency if not rebutted, such a charge may be proved by
other evidence of repeated and well-founded complaints of misconduct. And where, 23
as here, the Adverse action panel has sustained three adverse actions against an
officer, and those actions did not establish a prima facie case of inefficiency only
because they fell within a period a little longer than twelve months, we cannot say it
is unreasonable to construe the MPD’s definition of inefficiency as applicable. If
anything, strictly limiting that definition, as Lt. Royal proposes, would appear to
narrow it unreasonably.
2. The OEA’s Basis for Upholding the Charge of Inefficiency
That said, we agree with Lt. Royal that the AJ’s findings in this case are
insufficient to uphold the conclusion that the MPD proved the inefficiency charge
against Lt. Royal by a preponderance of the evidence. Indeed, the AJ’s factual
findings mandate rejection of that charge.
The specification of the charge of inefficiency predicated it on three
complaints “for which [Lt. Royal] was suspended from duty.” The three complaints
identified in the specification arose from the February 2015 incident and two prior
incidents. AJ Lim upheld the inefficiency charge based solely on the fact that
Lt. Royal “does not deny having these priors in his work record.” By itself, this
finding was inadequate to justify the inefficiency charge, because that charge
depended on whether the complaints had been sustained or (even if not sustained)
were well-founded. And that precondition was not met here. While the two earlier 24
complaints were sustained—they resulted in Lt. Royal’s suspensions for three days
in July 2014 and two days in January 2015—the complaints arising from the
February 2015 incident were not sustained. As discussed above, AJ Lim himself
found not only that the evidence did not support the February 2015 complaints, but
also that Lt. Royal had “proven by a preponderance of the evidence” that he did not
commit any of the violations with which he was charged as a result of the February
2015 matter. Nor did the AJ find that any of the February 2015 complaints were
well-founded, and we do not see how he could have reached such a conclusion given
his express findings that the evidence did not support those complaints and that
Lt. Royal disproved them. 24 Furthermore, we also do not see how the inefficiency
charge against Lt. Royal could be upheld based solely on the two prior complaints
that led to suspensions of three days in July 2014 and two days in January 2015.
These two suspensions did not amount to prima facie evidence of inefficiency as
defined in the General Order, and before the OEA, the MPD reiterated that the
Adverse action panel found Lt. Royal guilty on Charge 7 “because [he] had three
sustained adverse actions,” and that “[t]he preponderance of the evidence”
24 The MPD argues that the fact that the adverse action panel sustained the charges related to the February 2015 incident provides some indication that they were well-founded. But the issue is whether the OEA made the necessary finding, not whether another adjudicator did. 25
demonstrated his guilt of Charge 7 “because he had three prior sustained adverse
actions.” (Emphasis added.) Nor has the MPD argued on appeal that the two
underlying complaints were enough by themselves to prove inefficiency. 25
Accordingly, we must hold that the OEA’s conclusion upholding the
inefficiency charge against Lt. Royal does not “follow rationally from its
findings,” 26 and is not supported by the credited evidence. And given the AJ’s
explicit findings that the February 2015 bases of the inefficiency charge were
disproven, we do not perceive it necessary to remand for further findings on any
material, contested issues of fact.27 No material factual issues remain to be resolved.
III.
For the foregoing reasons, we reverse that portion of the OEA’s order on
appeal that upholds the MPD’s 20-day suspension of Lt. Royal based on charges
25 Instead, on the premise that the AJ sustained two of the April 2015 charges (Charges 2 and 3) and hypothetically could have relied on them to support the charge of inefficiency, the MPD argues that the AJ’s erroneous reliance on the February 2015 allegations to find inefficiency was harmless. But as we have explained, the MPD did not rely on Charges 2 and 3 and they were not properly before the AJ for consideration. 26 D.C. Fire and Medical Servs. Dep’t, 986 A.2d at 424. 27 See King v. D.C. Dep’t of Emp. Servs., 742 A.2d 460, 465 (D.C. 1999) (“If the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue.” (internal quotation marks omitted)). 26
arising from the events of April 16, 2015, and a charge of inefficiency. In lieu
thereof, we direct entry of an order reversing the suspension and, if necessary,
directing the MPD to issue Lt. Royal any back pay to which he is entitled and to
restore any benefits he lost as a result of the suspension. We leave unaltered that
portion of the OEA’s order reversing the MPD’s 15-day suspension of Lt. Royal
based on charges arising from the events of February 7, 2015.
So ordered.