Updated at 2:43 p.m.
The Metropolitan Police Department didn't run afoul of local laws or the Constitution when it demoted two career officers from commander to lower-ranking positions without cause, the District of Columbia Court of Appeals ruled in an opinion (PDF) released this morning.
In a case of first impression, the three-judge panel found that while career service officers generally can't be demoted without cause, other language in the D.C. Code pre-empts that rule for officers above the rank of captain.
Washington solo practitioner E. Scott Frison Jr., who represented one of the officers, Hilton Burton, said he plans to ask for a rehearing before the full court and is prepared to take the case to the Supreme Court. Frison said the court’s position is a consequence of the city’s general lack of political independence, despite the fact that the law in question was passed in 2000 by the D.C. Council.
“It is also nonsensical to me that you would take an officer with 20 years of service, and, at the whim of an appointed chief of police … say, ‘We’re going to ignore the fact that you have 20 years of service,’” Frison said. Referring to the fact that Congress approves local laws, he added, “I find it hard to believe that absent this being the District of Columbia, Congress would allow a law like this.”
The police department and the Office of the Attorney General, in a joint statement, said they "welcomed the Court's decision." Lanier said the ruling "ensures that officials at the highest level of the Department demonstrate the highest level of integrity and judgment to maintain not only my trust, but the trust and safety of the public they serve and the officers they lead.”
J. Michael Hannon of Washington’s Hannon Law Group, who represented the other appellant, Robin Hoey, was unavailable for comment.
In 2000, the D.C. Council added language allowing for the demotion of high-ranking officers without cause. According to the opinion, there was little discussion surrounding the law, but a financial impact statement noted that it could help the city avoid the costs of litigating. In 2004, when the council amended the law, it said its overall goal was to make promotion and appointment policies “fair, efficient and transparent.”
The appeals court found that the D.C. Code allows for reduction of rank of officers above the rank of captain at the discretion of the police chief, “notwithstanding” other rules barring the demotion of career service employees without cause. “Thus, at a minimum, [the provision] supersedes any conflicting regulations that were in place at the time the statute was enacted in 2000,” the judges wrote, affirming the trial court's ruling.
Hoey, a member of the department since 1985, had been commander of the city’s Sixth District since 2004. In April 2007, Chief Cathy Lanier returned him to the rank of captain, even though his work was “highly regarded,” according to the opinion. Burton joined the department in 1990 and was promoted to commander in 2003. In January 2008, Lanier returned him to the rank of inspector without cause.
Hoey appealed to the Office of Employee Appeals, where an administrative law judge took his side and ordered the department to reinstate Hoey. The department appealed to the Board of the Office of Employee Appeals, which reversed the decision. Hoey appealed to the District of Columbia Superior Court, which upheld the board’s decision. When Burton appealed, the board looked to the Superior Court’s decision in Hoey’s case and upheld the reduction of rank.
Chief Judge Eric Washington and Associate Judges Stephen Glickman and John Fisher heard the case.