6066397 Fire and Emergency Medical Services Department - Notice of Final Rulemaking - Retirement/Resignation of Fire and Emergency Medical Services Department Member While Under Disciplinary Investigation

FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT

 

NOTICE OF FINAL RULEMAKING

 

The Chief of the Fire and Emergency Medical Services Department (“Department”), pursuant to the authority under Section 517 of the Firefighter Retirement While Under Disciplinary Investigation Amendment Act of 2014 (Act), effective March 11, 2015 (D.C. Law 20–236; D.C. Official Code §§ 5–1031 to 5–1057 (2012 Repl. & 2015 Supp.)), hereby gives notice of amendments to Chapter 8 (Career Service) of Title 6 (Personnel), Subtitle B (Government Personnel),  of the District of Columbia Municipal Regulations (DCMR).

 

These rules implement the Act by providing procedures applicable to Department members who resign or retire while under disciplinary investigation. The rules place any Department member in a conditional retirement status until the disciplinary investigation is completed. The investigation must occur within twenty-five (25) days from the date of retirement or resignation. While in conditional retirement status, the Department member will not receive pay or retirement benefits. If the Department member is absolved of wrongdoing, the Department member’s retirement benefits will be paid retroactive to the date of his or her retirement or resignation.  If the wrongdoing is upheld, the Department member will be penalized as prescribed in the Act, which includes a fine between one hundred dollars ($100) and five thousand dollars ($5,000) for an offense that would result in a suspension, and a fine between one thousand dollars ($1,000) and five thousand dollars ($5,000) for an offense that would result in demotion or termination.

 

A Notice of Emergency and Proposed Rulemaking was published in the D.C. Register on February 5, 2016, at 63 DCR 001357.  The comment period officially closed on March 5, 2016, during which time the Chief received no comments. Therefore, no changes to the Emergency and Proposed Rules have been made. 

 

These rules were adopted as final on May 11, 2016, and will become effective upon publication in the D.C. Register. 

 

Chapter 8, CAREER SERVICE, of Title 6-B DCMR, GOVERNMENT PERSONNEL, is amended by adding new Sections 878 and 879 to read as follows:

 

878                  NOTIFICATION OF RETIREMENT OR RESIGNATION OF A MEMBER OF THE FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT

 

878.1               Pursuant to Section 5 of An Act To classify the officers and members of the fire department of the District of Columbia, and for other purposes, approved January 20, 1906 (34 Stat 315; D.C. Official Code § 5-407), a member who decides to resign from FEMS shall submit a written notification through his or her chain of command to the Fire and EMS Chief at least thirty (30) days before the date the member wishes to resign.  The written notification shall include:

 

(a)        The member’s name;

 

(b)        Appointment date;

 

(c)        Forwarding address;

 

(d)       Social security number;

 

(e)        Date of separation;

 

(f)        Reason for resignation;

 

(g)        If accepting another position with the District of Columbia or federal government, the name and address of the government agency; and

 

(h)        If desired, a request for waiver of the thirty (30) day notification period.

 

878.2               Pursuant to Section 12(h) of the Policemen and Firemen’s Retirement and Disability Act, approved September 1, 1916 (39 Stat. 718; D.C. Official Code § 5-712), and FEMS Special Order No. 77, Series 2013 (effective August 14, 2013), a member who decides to voluntarily retire from FEMS shall submit a request for optional retirement through his or her chain of command to the Fire and EMS Chief at least sixty (60) days before the date the member wishes to retire.

 

878.3               The definitions set forth in Section 879 shall apply to this section.

 

879                  RETIREMENT OR RESIGNATION OF A MEMBER OF THE FIRE AND EMERGENCY MEDICAL SERVICES DEPARTMENT WHILE UNDER DISCIPLINARY INVESTIGATION

 

879.1               Upon receipt of a notification of resignation or request for optional retirement, the Assistant Fire Chief of Operations and/or the Assistant Fire Chief of Services shall:

 

(a)        Determine whether the member is under disciplinary investigation; and

 

(b)        Forward the notification of resignation or request for optional retirement to the Fire and EMS Chief with a notation as to whether the member is under disciplinary investigation.

 

879.2               Upon receipt of a notification of resignation or request for optional retirement that includes a notation that the member is under disciplinary investigation, the Fire and EMS Chief shall:

 

(a)        Deny the request for waiver of the thirty (30) day notification requirement for members seeking to resign, if such a waiver was requested;

 

(b)        Deny the request for waiver of the sixty (60) day notification requirement for members seeking to retire, if such a waiver was requested;

 

(c)        Order the expedited completion of the investigation;

 

(d)       Inform the member that he or she is under conditional resignation or conditional retirement due to the pending disciplinary investigation for allegations of serious misconduct and that the final accounting of the member’s salary and annual leave balance is conditioned upon final resolution of the investigation; and

 

(e)        Inform the Director of the Department of Human Resources and the Chief Financial Officer that the member’s resignation or retirement is conditional and that the final accounting with respect to the member’s salary and annual leave balances are to be held in abeyance pending resolution of the disciplinary investigation.

 

879.3               A member who is in conditional resignation or conditional retirement shall not be paid a pension or receive other accrued benefits of any kind, including salary, compensatory time, or accrued leave, during the pendency of the disciplinary investigation. 

 

879.4               The investigation of a member for alleged serious misconduct shall be completed within twenty-five (25) days after the effective date of the member’s resignation or retirement.  If FEMS does not complete the investigation within twenty-five (25) days after the date of retirement or resignation, the matter shall be deemed to be closed and the allegations of misconduct not sustained.  The member’s pension rights and accrued benefits shall be paid retroactive to the date on which the member initially retired or resigned. 

 

879.5               If at any time during a member’s conditional retirement or conditional resignation FEMS finds that the serious misconduct allegation is not sustained or is unfounded, the matter shall be deemed closed and the member’s pension rights and accrued benefits shall be paid retroactive to the date on which the member initially retired or resigned. 

 

879.6               If FEMS sustains the serious misconduct allegation, the disciplinary process shall proceed as if the member in conditional retirement or conditional resignation continued to be a member of FEMS. 

 

(a)        The member shall be accorded all rights to which he or she is entitled under federal and District of Columbia law and regulations, Department regulations, and any applicable labor agreement.

 

(b)        If FEMS, through the disciplinary process, ultimately determines that a member in conditional retirement or conditional resignation should be subject to discipline as provided by law and regulation, the member shall be subject to penalties in lieu of discipline. 

 

(c)        A member in conditional retirement or conditional resignation who would have received a suspension as discipline had he or she remained a member of FEMS, shall be assessed a penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000), as determined in the discretion of the Fire and EMS Chief based on the length of suspension, and FEMS Order Book Article VII, Maintenance of Discipline.

 

(d)       A member in conditional retirement or conditional resignation who would have been demoted or terminated as discipline had he or she remained a member of FEMS, shall be assessed a penalty of not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000) as determined in the discretion of the Fire and EMS Chief based on  FEMS Order Book Article VII, Maintenance of Discipline. 

 

(e)        Penalties assessed against a member in conditional retirement or conditional resignation as provided shall be treated as a debt owed to the District of Columbia government, pursuant to Section 2903 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (CMPA), effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-629.03), and may be collected by the District of Columbia government, pursuant to Section 2904 of the CMPA (D.C. Official Code § 1-629.04), or by any other means authorized by law.

 

(f)        A member in conditional retirement or conditional resignation may challenge the imposition of penalties in an administrative proceeding before the District of Columbia Office of Employee Appeals, pursuant to the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code §§ 2-501 et seq.). 

 

879.7               A member who retires or resigns without knowing that he or she was under disciplinary investigation for serious misconduct shall not be deemed to be in conditional retirement or conditional resignation, but shall instead be provided the opportunity to continue employment with FEMS during the pendency of the disciplinary investigation.  Should the member decide to retire or resign after being informed of the disciplinary investigation, he or she shall be deemed to be in conditional retirement or conditional resignation as provided in these regulations.

 

879.8               The following terms, when used in this section or Section 878, shall have the meanings ascribed:

 

(a)        “Conditional Resignation” – the resignation of an FEMS member while under disciplinary investigation for serious misconduct.

 

(b)        “Conditional Retirement” – the retirement of an FEMS member while under disciplinary investigation for serious misconduct.

 

(c)        “Disciplinary Investigation” – an official investigation by FEMS, including the Office of Internal Affairs, of an allegation of serious misconduct by any FEMS member.

 

(d)       “Member” – a uniform employee of FEMS, including but not limited to the following positions:

 

(1)        Assistant Fire Chief;

 

(2)        Basic Paramedic;

 

(3)        Battalion Fire Chief;

 

(4)        Captain;

 

(5)        Captain Paramedic;

 

(6)        Deputy Fire Chief;

 

(7)        EMS Preceptor;

 

(8)        Emergency Medical Technician;

 

(9)        Fire Arson Investigator;

 

(10)      Fire Assistant Marine Engineer;

 

(11)      Fire / EMS Chief;

 

(12)      Fire Marine Engineer;

 

(13)      Firefighter;

 

(14)      Firefighter EMT;

 

(15)      Firefighter Inspector;

 

(16)      Firefighter Inspector Technician;

 

(17)      Firefighter Investigator;

 

(18)      Firefighter Paramedic;

 

(19)      Firefighter Paramedic Technician;

 

(20)      Fire Pilot;

 

(21)      Firefighter Technician;

 

(22)      Lieutenant;

 

(23)      Lieutenant Paramedic;

 

(24)      Paramedic;

 

(25)      Paramedic Firefighter;

 

(26)      Paramedic Instructor;

 

(27)      Sergeant;

 

(28)      Sergeant Paramedic; or

 

(29)      Supervisory Paramedic.

 

(e)        “FEMS” – the Fire and Emergency Medical Services Department.

 

(f)        “Resign” – the voluntary separation of a member from FEMS before the member’s pension rights have accrued or vested.

 

(g)        “Retire” – the voluntary separation of a member from FEMS after the member’s pension rights, retirement pay, or other benefits have accrued and vested as provided by federal or District of Columbia law or regulation.

 

(h)        “Serious Misconduct” – any felony violation of federal, local, or District of Columbia law, making of a false statement under oath, falsification of official records or reports, using unnecessary force, gross dereliction of duty, perpetrating a felony or assisting a person to escape investigation or prosecution, use of illegal or controlled substances, or other violations as determined by the Fire and EMS Chief (See FEMS Order Book Article VII, Maintenance of Discipline).