[00:00:00] Speaker 00: Phase number 21-1759, Fraternal Order of Police, Metropolitan Police Department, Labor Committee, DC Police Union, a balance versus District of Columbia and Muriel Bowser in our official capacity as mayor of the District of Columbia. [00:00:16] Speaker 00: Mr. Conte for the balance, Ms. [00:00:17] Speaker 00: Johnson for the police. [00:00:20] Speaker 04: Morning council. [00:00:21] Speaker 04: Morning. [00:00:30] Speaker 04: You may proceed. [00:00:32] Speaker 01: Thank you and may it please the court. [00:00:35] Speaker 01: Anthony Conti on behalf of the DC Police Union. [00:00:39] Speaker 01: The DC Police Union represents the rank and file members of the Metropolitan Police Department. [00:00:46] Speaker 01: And they became a politically disfavored and in fact demonized group in the Springens number of 2020. [00:00:53] Speaker 01: And it wasn't because of anything that occurred in the District of Columbia. [00:00:57] Speaker 01: It wasn't because of anything that any DC police union member did. [00:01:02] Speaker 01: The DC Council recites as its impetus for the act that's being challenged and the portion of the act, something that occurred a thousand miles away in Minnesota. [00:01:15] Speaker 01: The DC Council recites that there were peaceful protests, and that was another impetus, but there were also in the context of when this statute was passed, many not so peaceful protests. [00:01:27] Speaker 01: This was a time when there were daily occurrences of riots in the streets. [00:01:32] Speaker 01: Shopkeepers were boarding up buildings in the district, fires were being set, officers were being attacked, police stations were being attacked, and citizens as well. [00:01:42] Speaker 01: And not just in the District of Columbia, but many of the metropolitan areas throughout the country. [00:01:47] Speaker 01: This went on for months. [00:01:49] Speaker 01: And when it reached a fever pitch, the DC Council decided it needed to act on an emergency basis to quell what was occurring in its jurisdiction. [00:02:00] Speaker 01: It's important to note that we're not challenging every aspect of this act. [00:02:05] Speaker 01: We're challenging a very particular aspect that we view as punitive. [00:02:11] Speaker 01: The impetus of this act was because of a police brutality incident that occurred in Minnesota. [00:02:17] Speaker 01: And most of the provisions in the act relate to revisions to issues surrounding police brutality. [00:02:25] Speaker 01: There were changes to the use of force review board and its practices, [00:02:28] Speaker 01: The Citizen Complaint Board was revised. [00:02:31] Speaker 01: It involved more citizens. [00:02:33] Speaker 01: Body camera legislation was included that allowed for the release of body camera footage in these use of force incidents. [00:02:41] Speaker 01: And none of that is being challenged. [00:02:43] Speaker 01: What we're challenging is just to be clear. [00:02:45] Speaker 05: And so what you're saying is the legislation as a whole was not out to punish the police. [00:02:51] Speaker 05: It is just this one provision. [00:02:56] Speaker 05: That's one provision that's driven by the animus that you've, the asserted animus that you've referenced. [00:03:02] Speaker 01: Yes, I mean, you could view all of the legislation as punitive, but that's not our challenge because what you said you're not challenging. [00:03:12] Speaker 05: You're not. [00:03:12] Speaker 01: That's correct. [00:03:14] Speaker 05: You're not challenging it, or you don't think that it was. [00:03:17] Speaker 01: we're not challenging it. [00:03:19] Speaker 01: And I think it. [00:03:20] Speaker 05: So we're taking it as a given for this case that all the rest of the statute is not motivated by an impermissible animus. [00:03:29] Speaker 05: But you're focused on this, which you've described here as differential treatment with respect to collective bargaining on discipline measures. [00:03:37] Speaker 01: Yes, because the test that the court's required to apply looks to the reasonableness and the justification for it. [00:03:46] Speaker 01: And if it's believed that the basis for it was use of force abuses, then the reasonable justification is the regulating use of force. [00:03:57] Speaker 02: I'm sorry, what claim are we talking about? [00:04:01] Speaker 02: Because I don't see the relevance of any of this for your [00:04:05] Speaker 02: equal protection process claims on rational basis review. [00:04:10] Speaker 01: Agreed. [00:04:11] Speaker 01: And that's what I was getting to, Your Honor. [00:04:13] Speaker 01: I think it's the bill of attainder claim, when we get to the punitive nature, is what is really the focus and what draws in the enhanced scrutiny beyond what the court would normally apply, whether it's equal protection or due process. [00:04:29] Speaker 01: And in the bill of attainder analysis, the court looks to whether or not two components are met, specificity and punitive. [00:04:37] Speaker 01: And specificity is conceded and it was accepted by the lower court. [00:04:43] Speaker 01: But I think that that is an important point that the court shouldn't gloss over when when a statute is deemed to specifically target a group like the DC police union. [00:04:55] Speaker 01: the courts have held that that raises suspicion because it's singling out people. [00:05:00] Speaker 01: And under a bill of attainder analysis, that triggers that higher level of scrutiny. [00:05:06] Speaker 01: It's more exacting than rational basis because it demands that the purposes for the statute are not merely reasonable or rational, but non-punitive. [00:05:16] Speaker 01: The government has to do more than just assert a superficially non-punitive purpose. [00:05:24] Speaker 05: I think if I asked, I'm sorry, just to clarify something though, to make sure I'm understanding this law. [00:05:31] Speaker 05: So the provision about no collective bargaining for disciplinary procedures is limited to MPD officers, correct? [00:05:47] Speaker 05: Right, that's your point. [00:05:48] Speaker 05: And not to other other forms of police officers in this in the city, other than the Housing Authority police, the the Department of Corrections police. [00:05:59] Speaker 05: Is that correct? [00:06:00] Speaker 01: That's correct. [00:06:00] Speaker 01: That's correct. [00:06:02] Speaker 05: But other parts of this legislation like the chokehold say that they apply to law enforcement and special police officers. [00:06:10] Speaker 05: So do [00:06:12] Speaker 05: like the neck restraint and those type of things, does that apply to Department of Housing Authority officers and corrections officers? [00:06:22] Speaker 05: So it's just this provision about collective bargaining that's confined to Metropolitan Police officers? [00:06:31] Speaker 01: Yes, I believe so, Your Honor. [00:06:34] Speaker 05: I just don't know all the terminology. [00:06:36] Speaker 05: So are these housing authority police officers that you mentioned in your brief, are they considered law enforcement or are they special police officers? [00:06:44] Speaker 05: I just don't know what the statute means by special police officers. [00:06:48] Speaker 01: I believe special police officers are essentially the security police officers that police the different buildings within the District of Columbia. [00:07:01] Speaker 05: Okay. [00:07:02] Speaker 05: So Department of Housing Police, are they normally encompassed within the phrase law enforcement? [00:07:08] Speaker 01: I believe so, your honor. [00:07:10] Speaker 05: Okay. [00:07:10] Speaker 05: All right. [00:07:11] Speaker 05: I just, I wasn't there on all this terminology. [00:07:13] Speaker 01: Certainly. [00:07:13] Speaker 01: And, and, and also to be clear when, uh, when the DC police union is identified, which they are in the statute, that's not even all metropolitan police department officers. [00:07:24] Speaker 01: The DC police union is rank and file. [00:07:27] Speaker 01: So it's the, uh, 3,500 or so officers, sergeants and detectives. [00:07:34] Speaker 05: The sorry, if you can go ahead, go ahead. [00:07:38] Speaker 05: I'm just I'm sorry. [00:07:39] Speaker 05: I'm just confused about these categories. [00:07:42] Speaker 05: So in 16 C1, it says all matters pertaining to the discipline of sworn law enforcement personnel shall be retained by management and not be negotiable. [00:07:53] Speaker 05: And then in C2 makes clear that that provision will apply to collective bargain agreements with metropolitan police. [00:08:01] Speaker 05: And so what I'm trying to understand is see one does law enforcement personnel just mean metropolitan police or to see one all matters pertaining to discipline of personnel should be retained by management apply to all law enforcement in the district, which would include. [00:08:16] Speaker 05: I thought you just said the housing at least the Housing Authority police. [00:08:20] Speaker 05: And then two was just making clear that we're including in this collective bargaining agreements. [00:08:25] Speaker 05: And that's why I'm having trouble with the terminology in the statute, because it ties into your argument about targeting at least for your equal protection plan. [00:08:33] Speaker 01: Sure, and to be clear, the only police union or police officers that have been affected by the provision that excludes bargaining over discipline is the DC police union. [00:08:49] Speaker 01: It's not any of the other housing authority police or special police. [00:08:54] Speaker 05: With respect to, I think the- Do they have their own unions and they're not affected? [00:08:58] Speaker 01: Yes, they have their own unions, yes, and they have their own collective bargaining agreements, and they remain unaffected by the legislation. [00:09:09] Speaker 05: When C-1 talks about law enforcement personnel, at least there that phrase law enforcement personnel seems to refer only to MPD and not all law enforcement personnel in DC, under DC jurisdiction. [00:09:24] Speaker 01: Right, and I apologize, Your Honor, I haven't focused particularly on that, but I believe that was already in existence. [00:09:33] Speaker 01: That statement is a general statement of a management right, and that applies probably, frankly, to all unions and all district employees, that management retains certain generic rights relating to discipline. [00:09:53] Speaker 02: Can I take you back to this question of punishment and animus? [00:10:01] Speaker 02: I mean, you're trying to reduce the bill of attainder question to the extent to which this act was or wasn't motivated by concerns about the police and whether [00:10:21] Speaker 02: those concerns are justified, whether DC is overreacting and I just don't really see why that's the case. [00:10:33] Speaker 02: The ultimate question is whether this act imposes punishment and you can look to history and you can look to function and what this act is all about is [00:10:50] Speaker 02: the scope of collective bargaining, and that seems very far removed from the heartland of punishment, which is a criminal sanction for something. [00:11:02] Speaker 02: So even if, even if you think that [00:11:07] Speaker 02: The DC council was wildly overreacting to one incident in a very different jurisdiction. [00:11:15] Speaker 02: I don't see how that comes close to supporting a conclusion that what they did was akin to punishment. [00:11:26] Speaker 01: And your honor, I think as you stated it, if they just touched on collective bargaining rights, I might agree with you, but it wasn't collective bargaining rights. [00:11:40] Speaker 01: It's to eliminate collective bargaining over discipline. [00:11:43] Speaker 01: And so when you narrow your focus and sharpen your pencil to attack solely discipline, what you're communicating [00:11:53] Speaker 01: is that your belief is that there's something wrong that's preventing discipline. [00:11:59] Speaker 01: Even the district's articulation of the basis, which is the word accountability, not anything beyond more than that. [00:12:07] Speaker 01: Accountability taken specifically in the context of solely removing disciplinary bargaining rights. [00:12:15] Speaker 02: I mean, it's discipline in the administrative context, right? [00:12:25] Speaker 01: Meaning how they go about administering discipline? [00:12:28] Speaker 02: Yeah, meaning something other than criminal process, right? [00:12:36] Speaker 02: Correct. [00:12:37] Speaker 02: If you had one of these disciplinary proceedings and you raise an argument that this is effectively punishment and therefore [00:12:53] Speaker 02: criminal process attaches, you would lose that argument because it's nothing like criminal punishment that we're talking about. [00:13:06] Speaker 01: Yeah, I agree. [00:13:07] Speaker 01: But I still think nonetheless, if the court looks at prior decisional law, yes, from the historical context, criminal punishment may have been the traditional bill of attainder analysis. [00:13:23] Speaker 01: But what the case law tells us is that the bill of attainder clause is not meant to be strictly interpreted from a historical context. [00:13:31] Speaker 01: I think if the court looks at, I would say there are two overarching themes that you can take from the bill of attainder cases. [00:13:38] Speaker 01: First is the component of reputational stain. [00:13:41] Speaker 01: This is an act that was passed and the council members that passed the act stated explicitly that the DC police union was a racist organization [00:13:56] Speaker 01: that engaged in brutality and that that was the impetus for this act. [00:14:01] Speaker 01: From the standpoint of bill of attainder analysis, the court has to look at that reputational stain because that's precisely how they've taken an identified group and labeled them. [00:14:14] Speaker 01: And if the court looks at some of the cases and some of the decisions more recently in assessing whether or not this is a bill of attender punishment versus a reasonable and responsible reaction of the government, the court should [00:14:31] Speaker 01: should be guided by whether or not the actor, the DC police union, was specifically targeted for their actions. [00:14:40] Speaker 01: Did that trigger this legitimate legislative action? [00:14:44] Speaker 01: So for example, Bell South. [00:14:46] Speaker 01: Well, Bell South was engaged in monopolistic behavior. [00:14:50] Speaker 01: And so the court upheld regulations that related to this anti-competitive behavior. [00:14:55] Speaker 01: Nixon was specifically involved and attracted the attention of the legislature through his actions relating to his documents and his records. [00:15:05] Speaker 01: Kipursky was singled out specifically for the fact that it had close ties to Russia. [00:15:12] Speaker 01: It presented the legislature with a concern over security and they removed the concern. [00:15:18] Speaker 01: Here, if we take from those cases, that lens and that viewpoint, what the D.C. [00:15:26] Speaker 01: Council has done had no bearing. [00:15:28] Speaker 01: They reached a conclusion, they stained the individuals, and they targeted specifically discipline. [00:15:40] Speaker 05: Can I ask a question about [00:15:44] Speaker 05: purposes of your contract impairment contract costly. [00:15:49] Speaker 05: So collective bargaining agreement article 12 talks about setting up a committee to establish procedures, and they were supposed to do it within six months or agree to an extension and. [00:16:02] Speaker 05: By the time this law was passed, we are way past that time period. [00:16:07] Speaker 05: And so I was confused as to what happened with that committee and its whole process for setting up procedures, or was there essentially a determination just to go with the procedures that are outlined in the collective bargaining agreement or? [00:16:20] Speaker 05: I'm just trying to see what was interfered with here. [00:16:24] Speaker 01: It's a very good question and it's one thing that I did want to touch on. [00:16:28] Speaker 01: That's not a time limit to start the process. [00:16:34] Speaker 01: That's a time limit from when the committee has been formed. [00:16:38] Speaker 01: It's a little bit misleading when you look at six months and you say, well, we're well beyond six months. [00:16:45] Speaker 01: The fact of the matter is the committee was never formed. [00:16:50] Speaker 01: And the reason the committee was never formed, which I think is very telling, is that clearly the parties both believed that the status quo for the time being was acceptable. [00:17:02] Speaker 01: Now, what the district argues is, well, the legislature spoke and it's no longer acceptable, so they've terminated that clause. [00:17:09] Speaker 01: Well, that's a termination of an existing contractual right. [00:17:13] Speaker 01: And it's not one that's in perpetuity, which is the other fallback argument of the district, because that right can be exercised and triggered by either side. [00:17:23] Speaker 01: And once that process starts, the committee has to be formed. [00:17:28] Speaker 01: And once the committee forms, there's the six month time period and the mediation process and impasse. [00:17:35] Speaker 04: What record evidence is there? [00:17:38] Speaker 04: as to the parties believe that the status quo was satisfactory for the time being? [00:17:44] Speaker 01: There's none, Your Honor. [00:17:48] Speaker 01: But to the extent that either the backdrop of it was they couldn't reach an agreement and so they agreed to form a committee. [00:17:59] Speaker 04: Yes, excuse me, go ahead. [00:18:01] Speaker 01: And so the backdrop was when they were engaged in bargaining the predecessor contract that is still in existence today through the automatic renewals. [00:18:12] Speaker 01: They reached an agreement that this was something that they would form a committee on and continue to bargain. [00:18:18] Speaker 01: And, and neither party has began to formulate that committee, neither party has initiated that process. [00:18:29] Speaker 01: You could say there's no evidence that they're pleased with the status quo. [00:18:36] Speaker 01: either side thought that this needed to be changed, that there was such a problem in the District of Columbia with respect to this accountability issue and that they needed to change and reformulate how discipline was going to occur, that one of the parties would have reached out and began that process and they didn't. [00:18:55] Speaker 04: Well, that's speculation, isn't it? [00:18:58] Speaker 01: Well, it's not speculation that neither. [00:19:00] Speaker 04: I mean, for all kinds of different reasons, and you're more in touch with this than I am. [00:19:05] Speaker 04: But these types of things happen all the time. [00:19:09] Speaker 04: Committees are set up or authorized. [00:19:12] Speaker 04: For one reason or another, they never get started. [00:19:15] Speaker 01: Agreed, Your Honor. [00:19:17] Speaker 04: I don't think that's helping your arguments here. [00:19:20] Speaker 04: That's all I'm trying to get at. [00:19:22] Speaker 04: Not that you could not make a case, but rather that [00:19:28] Speaker 04: It's following up on Judge Katz's point. [00:19:33] Speaker 01: I think it helps our argument because in the district's briefs, their position is while this right may have existed, once the legislature spoke, it terminated that right. [00:19:44] Speaker 01: And that's the essential issue in a contract clause challenge. [00:19:49] Speaker 04: That's a different issue, though. [00:19:52] Speaker 04: And I just want to be clear about that. [00:19:54] Speaker 04: That's all. [00:19:55] Speaker 04: You made a representation. [00:19:57] Speaker 04: And there's no evidence of that. [00:20:00] Speaker 04: Now, the legal argument that the district makes is different in terms of it may be deficient for other reasons. [00:20:13] Speaker 04: That's my only what I just want to clarify. [00:20:16] Speaker 01: Understood, Your Honor. [00:20:18] Speaker 05: I have something else I'd like to clarify, though. [00:20:21] Speaker 05: And so under your understanding of what sort of transpired on the ground, [00:20:27] Speaker 05: what this intervening legislation took away was not in a process, but was in fact, it just interfered. [00:20:41] Speaker 05: You had an existing arrangements that, I guess it seemed like status quo, both parties had settled on with procedures for dealing with discipline. [00:20:50] Speaker 05: And then this new process by saying it will be unilaterally, whatever management chooses, consistent with DC law and the constitution. [00:20:58] Speaker 05: And so it's the change in procedures, in the discipline procedures that's been interfered with. [00:21:08] Speaker 05: Because there was no exercised right to form a committee and negotiate discipline procedures. [00:21:15] Speaker 05: You had the procedures in the collective bargaining agreement, and that's what's been disrupted. [00:21:20] Speaker 01: I think both were disrupted. [00:21:25] Speaker 01: We have Article 12, and it contains numerous provisions that relate to discipline and disciplinary procedures. [00:21:34] Speaker 01: That was terminated. [00:21:36] Speaker 01: But in addition, you could think of it as a one-time option, an option to start a committee process to renegotiate provisions that would then be in the next agreement. [00:21:50] Speaker 05: Yeah, that's nowhere in the text of this provision, right? [00:21:54] Speaker 05: It doesn't sound like here are the procedures and if either party wants to change things, here's a process they can trigger. [00:22:01] Speaker 05: They've agreed to form, they shall, they shall do these things. [00:22:07] Speaker 05: And you're saying it just never happened. [00:22:09] Speaker 05: So it sounds like both parties just sort of forwent that opportunity. [00:22:13] Speaker 05: It's not like some springing opportunity you can bring up at a later point. [00:22:16] Speaker 05: It's not written that way. [00:22:18] Speaker 01: Well, it's written to say that unless and until they do, that the Article 12 will be included in each successor collective bargaining agreement. [00:22:29] Speaker 05: No, it's not. [00:22:30] Speaker 05: I mean, there's all kinds of time limits and then going to mediation if the committee process doesn't break down. [00:22:35] Speaker 05: It seems rather different. [00:22:37] Speaker 05: I mean, I take your word that you're describing sort of the on the ground reality. [00:22:42] Speaker 05: between the parties. [00:22:44] Speaker 04: It's just, it seems- With all due respect, I mean, that's what I'm trying to get at. [00:22:50] Speaker 04: I don't think that he has said there's no record evidence to support his position, all right? [00:22:57] Speaker 04: And I think that's important to be clear what we're dealing with here. [00:23:03] Speaker 04: It's talking about serious challenges here. [00:23:08] Speaker 04: and we need to be clear what he has presented to support that. [00:23:13] Speaker 04: And I thought that's what Judge Katz was exploring in his questions. [00:23:20] Speaker 01: I would just point the court to section two, which says the current article 12 has set forth in the existing collective bargaining agreement shall remain in full force and effect during the committee's deliberations and shall be incorporated into any successive collective bargaining agreement until [00:23:38] Speaker 01: committee reaches an agreement on changes. [00:23:41] Speaker 05: It's in full force and effect during their deliberations, but there's no during deliberations period. [00:23:46] Speaker 05: There's been no committee, so there's no deliberations. [00:23:48] Speaker 01: Correct, but these collective bargaining agreements span three years. [00:23:52] Speaker 01: So to read this so narrowly to say it had to be exercised immediately, had to be dated within six months would give no meaning to that. [00:24:01] Speaker 01: It was contemplated that status quo would remain until one exercises the right through this committee process. [00:24:09] Speaker 01: And while no one has exercised that right, there's nothing in here that says that that right terminates. [00:24:17] Speaker 05: So at the time of this legislation, at least the police, the Fraternal Order of Police had not invoked that right to process. [00:24:24] Speaker 01: Correct, correct. [00:24:34] Speaker 01: I'm over my time, but I'm more than happy to answer any questions. [00:24:37] Speaker 04: Well, let us hear from the government. [00:24:39] Speaker 04: We'll come back to you on rebuttal. [00:24:42] Speaker 03: Thank you. [00:24:50] Speaker 06: Good morning. [00:24:51] Speaker 06: May it please the court. [00:24:52] Speaker 06: Holly Johnson for the District of Columbia. [00:24:54] Speaker 06: Any ambiguity in this carryover clause in our Section 2 of Article 12? [00:25:00] Speaker 06: Any ambiguity? [00:25:02] Speaker 06: means that this court should interpret the contract in favor of the government. [00:25:07] Speaker 06: Because what FOP is trying to do with this contract is preclude the legislature from enacting new laws. [00:25:15] Speaker 06: And under Windstar, the Supreme Court's decision, anytime the contract clause threatens a new law, if there's a way to get out of that contract analysis by looking for ambiguity in the contract, that's what the courts should do. [00:25:27] Speaker 06: because they don't want contracts to threaten legislative freedom of action. [00:25:32] Speaker 06: Now, interestingly, FOP's council has just introduced a new ambiguity into this provision that I was unaware of, that the committee never even formed and never even began its deliberations, but this does tie into one of the ambiguities I raised in my brief, which is that there's a lot that is not known about this process. [00:25:52] Speaker 06: Uh, and, and whether it's, it's not completed, but not extended and whether the parties jointly agreed to extend it. [00:25:58] Speaker 05: So I, I do think that that's why it's not known by the district. [00:26:01] Speaker 05: I mean, you're one of the parties. [00:26:03] Speaker 06: I should clarify my understanding of what happened, um, which is not in the record is different from what Mr. Mr. Conti just presented. [00:26:11] Speaker 06: But since we're basing this on the complaint, I think that I hadn't even considered that as another kind of ambiguity that this court could rule upon. [00:26:19] Speaker 06: But I'd like to point out another ambiguity that I think is even cleaner and is a clear way for this court to dispose of the contract clause claim. [00:26:27] Speaker 06: And that is the fact that this carryover clause, which is the only clause that FOP is arguing was effective at the time that the law went into effect, is itself terminable under the renewal clause under Article 48, Section 4 of the Collective Bargaining Agreement. [00:26:44] Speaker 06: And FOP doesn't talk about this in their reply brief, even though it's a main point of our brief. [00:26:49] Speaker 06: This renewal clause says that any party within 150 days of the expiration of the contract, any party can disavow, can terminate or state intent to modify any part or any clause in the collective bargaining agreement. [00:27:04] Speaker 06: And if they do that, only the [00:27:08] Speaker 06: Only the related articles or parts of article shall be affected and the unrelated articles are parts of the articles. [00:27:14] Speaker 05: I need your, I need your help on this hundred and 50 day counting thing because it seems too complicated. [00:27:23] Speaker 06: It is a little complicated. [00:27:25] Speaker 05: It's a lot complicated because if I've got this right. [00:27:27] Speaker 05: Each of these bills. [00:27:31] Speaker 05: You know, you've had a whole series of, until mid-2021, you had a whole series of 90-day bills, one after the other, none of which could provide 150 days notice, because they were all only 90 days long. [00:27:49] Speaker 05: And so you don't get a bill enforcing this provision longer than 150 days until sorry, May 2021. [00:28:06] Speaker 05: And May 2021 is not 150 days before October 2021 when I assume this contract renewed again. [00:28:16] Speaker 05: So you have, I don't, I don't understand your notice argument. [00:28:19] Speaker 05: You're going to have to explain to me because I don't think a 90 day statute can give 150 days notice. [00:28:26] Speaker 06: So I'm going to respond to that. [00:28:27] Speaker 06: I hope the court will bear with me for a moment, because this is not an argument that FOP raised at any point in this litigation. [00:28:33] Speaker 05: You've made it, and it's just a question of math. [00:28:34] Speaker 05: So I'm just, yeah, I hope you understand. [00:28:35] Speaker 06: No, no, no, I understand that. [00:28:37] Speaker 06: My understanding of temporary and emergency legislation is that as long as they do not lapse, they continue in full force, and that Section 116 should have provided ample written notice. [00:28:49] Speaker 06: But if this court is concerned about that, then... I want you to explain to me how [00:28:56] Speaker 05: how someone has noticed, when do they get noticed? [00:28:59] Speaker 05: They don't have notice when the thing is enacted one day 90 on the first day. [00:29:04] Speaker 05: Correct. [00:29:05] Speaker 05: And so you're saying to add up different statutes? [00:29:09] Speaker 06: Our argument is that they had notice 150 days after section 116 was first enacted in July of 2020. [00:29:19] Speaker 06: because if nothing else, that was ample notice that the district was not going to continue and at least intended to modify. [00:29:26] Speaker 06: I mean, the notice. [00:29:28] Speaker 05: I'm sorry. [00:29:30] Speaker 05: You're saying they had notice when? [00:29:32] Speaker 06: OK, so when Section 116 was enacted, which was in July of 2020, that provided written notice to FOP that the district intended to modify Article 12 and thus Section 2 of Article 12 [00:29:49] Speaker 06: of the collective bargaining agreement. [00:29:51] Speaker 05: No, because it only lasted 90 days. [00:29:54] Speaker 06: And yet still that would be an intent that we're not necessarily going to proceed with that. [00:29:59] Speaker 06: I mean, it doesn't have to be an intent saying absolutely no way will we agree to any of that all it has to be is frankly a letter that says. [00:30:06] Speaker 06: written notice of intent to modify. [00:30:09] Speaker 06: But I will also note that worst case scenario, MPD has given written notice in a letter to FOP describing an intent to modify. [00:30:18] Speaker 06: Is that letter in the record? [00:30:21] Speaker 06: It is not, because FOP did not raise this argument that temporary legislation could not provide notice. [00:30:28] Speaker 05: No, you raised the argument that temporary legislation could. [00:30:31] Speaker 05: Correct. [00:30:32] Speaker 05: This is on you, and you're telling me you have authority? [00:30:36] Speaker 05: Do you have a case or anything that lets me know this? [00:30:39] Speaker 05: Because this seems a very strange concept of notice to me. [00:30:42] Speaker 06: No, what I'm telling you is that the district made the argument that Section 116 provided notice. [00:30:48] Speaker 06: FOP said nothing. [00:30:49] Speaker 05: But you just said it in your brief, but you didn't ever elaborate on how it could in the 90-day time period. [00:30:56] Speaker 05: It means to you that a 90-day statute doesn't provide 150 days notice? [00:31:00] Speaker 06: No, it did not, because the statute then was renewed. [00:31:03] Speaker 05: It certainly raised a question for me. [00:31:05] Speaker 06: Okay, but FOP didn't raise it, and I certainly would have introduced this. [00:31:09] Speaker 06: I would have moved to supplement the record with the letter that MPD sent, but FOP did not respond to this argument, did not suggest that temporary legislation cannot provide ample notice, and worse case scenario, then we're dealing with needing 150 days notice before the next [00:31:25] Speaker 05: I just want to just to clarify one more time when you made this argument about 90-day statutes and you said well there was a series of them so I guess you're supposed to add them up or something like that. [00:31:37] Speaker 05: I'm still not sure how it works with this CBA renewal dates. [00:31:44] Speaker 05: There's no precedent you're aware of in case law or [00:31:50] Speaker 05: Administrative decisions involving collective bargaining agreement interpretations as to that's how that works. [00:31:56] Speaker 06: No, I mean, this is a very unusual situation. [00:31:58] Speaker 06: So now our argument is that the statute provides notice. [00:32:03] Speaker 06: But even so, FOP certainly understood the statute to be applying [00:32:09] Speaker 06: beyond the 90 days because the FOP understood. [00:32:13] Speaker 06: I mean that's why FOP is challenging this law because it understands that the law is meant to dispose of this right, but I don't want to belabor this point there are other ambiguities that we already identified. [00:32:25] Speaker 06: in section two itself in Article 12. [00:32:30] Speaker 06: Beyond that, I'm happy to move on to substantial impairment if this court finds that there was some impairment because I think that you could easily rule on the grounds that the district court ruled on, which was whether there was a substantial impairment to a contractual right. [00:32:47] Speaker 02: Just to belabor it a little bit, but this hope is a simple question, which is what happens under DC law [00:32:54] Speaker 02: if there's emergency legislation enacted, 90 days pass, and then there's no subsequent legislative act. [00:33:04] Speaker 02: I had thought the legislation, the emergency legislation just expires by its terms. [00:33:11] Speaker 02: That's correct. [00:33:12] Speaker 02: Okay. [00:33:13] Speaker 05: Yes. [00:33:13] Speaker 05: I think there was like a three day gap actually between the first two statutes. [00:33:17] Speaker 06: But if so, if the gap matters, well, then the second statute still would have provided 150 days notice. [00:33:23] Speaker 06: And again, because there are other grounds. [00:33:26] Speaker 05: There was a gap in there when there was no law affecting the collective bargaining group. [00:33:29] Speaker 05: It's pretty complicated. [00:33:31] Speaker 02: Is your notice theory, once they enact the first statute and maybe given the political climate or whatever, [00:33:45] Speaker 02: the union would think, gosh, there's a reasonable possibility this will be extended. [00:33:52] Speaker 02: many times over. [00:33:53] Speaker 06: Yes, exactly. [00:33:54] Speaker 06: The written notice requirement in the collective bargaining agreement doesn't specify how it has to be. [00:33:59] Speaker 06: It doesn't have to be any magic words. [00:34:01] Speaker 06: And plainly, FOP was aware of the fact that the DC government no longer intends to include discipline in the next collective bargaining agreement. [00:34:10] Speaker 06: But again, I'd love to move on to substantial impairment because I don't think there's so many different grounds on which [00:34:17] Speaker 06: this claim can be dismissed. [00:34:20] Speaker 06: Under substantial impairment, FOP argues that the practical and substantive rights that are impaired by the statute is, and they say this primarily in their amended complaint at Appendix 584, that without the collective bargaining on discipline, the district will be allowed to conduct arbitrary, retaliatory, and illegal discipline. [00:34:40] Speaker 06: But this is simply untrue as a matter of law. [00:34:43] Speaker 06: because the Comprehensive Merit Personnel Act amply protects the officers from all of those things. [00:34:51] Speaker 06: In Fattute and El Paso, the Supreme Court repeatedly emphasizes that substantial impairment requires impairment of real-world interests, not just the right to protect yourself in one certain forum or under one certain process. [00:35:06] Speaker 06: I don't think they've shown an impairment on their individuals, [00:35:10] Speaker 06: And then FOP argues that the collective bargaining over discipline is what substantially induced it to enter into the contract. [00:35:18] Speaker 06: But for that claim, you really have to look at which clause it is that was impaired. [00:35:22] Speaker 06: And FOP has not alleged, and I don't think could reasonably or plausibly allege, that that carryover clause, that little clause that says if the committee has not resolved this matter, we will include Article 12 in the next collective bargaining agreement, that that induced them to enter into this contract. [00:35:40] Speaker 05: That characterizes their argument. [00:35:42] Speaker 05: I think it is. [00:35:43] Speaker 05: We have that comprehensive personnel act was already on the books, but we as a union thought it powerfully important to have a seat at the table and establishing discipline procedures. [00:35:58] Speaker 05: That's why we negotiated. [00:36:00] Speaker 05: Article 12 wasn't just a series of different procedures. [00:36:05] Speaker 05: It was a right to be at the table and negotiate and have the spokesperson for the police officers be part of the decision-making process on what procedures are. [00:36:18] Speaker 05: That's what I think their substantial impairment argument is. [00:36:23] Speaker 05: You know, they know I don't know, you all probably know better than me what for some reason that was quite important to them there's an entire article on it and it had this very unusual provision that the district agreed to that not only will they get a seat at the table but this is going to carry forward into every other agreement which I should think is unusual and that doesn't that signify the importance of it. [00:36:46] Speaker 05: You call it a little carry forward thing. [00:36:47] Speaker 05: That seems like a big deal. [00:36:48] Speaker 06: Well, I have two responses to that. [00:36:51] Speaker 06: The right to be at the table for disciplinary processes is not a contractual right. [00:36:56] Speaker 06: That's the statutory right. [00:36:58] Speaker 06: The collective bargaining agreement does not create the right to collectively bargain over discipline. [00:37:04] Speaker 06: And so this procedure, this joint labor management provision. [00:37:10] Speaker 05: I'm confused by what you mean. [00:37:12] Speaker 05: Article 12 sets up a whole procedure for them to be at the table to establish procedures. [00:37:16] Speaker 05: Yes, no, that's what this committee was. [00:37:19] Speaker 06: But the committee was created because there was a right to collectively bargain over discipline. [00:37:24] Speaker 06: It's not like the district [00:37:26] Speaker 06: But granted a concession to collectively bargain over discipline I apologize just catch. [00:37:31] Speaker 02: No, I'm sorry. [00:37:32] Speaker 02: I was interrupting you, though, the article 12 goes beyond the protections well beyond the protections that would apply just by statute. [00:37:43] Speaker 06: It does in some respects, but in the most critical respect, FOP disputes that that matters. [00:37:49] Speaker 06: So the district argues that arbitration has led to, or at least that the council could have been aware of studies. [00:37:58] Speaker 06: We're not asking you to judicially note the truth of these studies, but the existence of them. [00:38:02] Speaker 06: That the council could have been aware of studies that show that arbitrators reinstate somewhat like half [00:38:07] Speaker 06: of terminated police officers, but FOP is disputing that. [00:38:13] Speaker 06: The only argument FOP makes in favor of arbitration, why that matters, is that arbitrators are chosen by both sides, that they have a say in who the arbitrator is. [00:38:23] Speaker 06: But there's no allegation in the complaint that the sworn judges, the administrative law judges at the Office of Employee Appeals are biased, or that arbitration is the only way to satisfy the substantive rights. [00:38:36] Speaker 05: Sounds awfully intensely factual dispute is what this sounds like to me that you're talking about now. [00:38:42] Speaker 06: I don't, I don't think it is. [00:38:46] Speaker 06: I think that and I will note that to the extent there are some facts at issue. [00:38:50] Speaker 06: And if this court is concerned about that, the parties have cross moved for summary judgment, neither party has filed a 56, I think it's D now. [00:38:58] Speaker 06: I'm affidavit saying more discovery needs to be conducted and MPD and the district need a ruling on this as soon as possible because they cannot start applying this right now we are voluntarily continuing to apply the procedures of the collective bargaining agreement because there is such a great risk of somebody getting reinstated on a technicality so [00:39:18] Speaker 06: I think the parties have put both parties have put forth everything that needs to be before this court. [00:39:25] Speaker 06: I see my time is running low and I want to make a few more key points. [00:39:29] Speaker 06: The first is that if this court wanted to reach the question if it found that there was unmistakable. [00:39:36] Speaker 06: evidence that there's no ambiguity in the contract that the district agreed to continue this provision onto the next or even more collective bargaining agreements that this court could then move on to rule on whether the impairment was justified, and we have presented ample argument that it is. [00:39:54] Speaker 06: I also want to refer this court in the question of whether there was an impairment to now Justice Breyer's decision in amalgamated transit. [00:40:03] Speaker 06: Even if this court were to take out of the equation the Article 48 argument regarding timely notice, the clause at issue in amalgamated transit is very similar to the carryover clause. [00:40:17] Speaker 02: Am I remembering? [00:40:20] Speaker 02: I thought that was a clause which gave [00:40:24] Speaker 02: either party the right to project the provision forward into future agreements in perpetuity. [00:40:34] Speaker 06: So it's similar to this one in that it says in that it [00:40:40] Speaker 06: It applies to the whole collective bargaining agreement. [00:40:42] Speaker 06: So it's not like applying to just one article. [00:40:45] Speaker 06: But what the clause said in Amalgamated Transit is that the parties would continue to apply the provisions of the preceding collective bargaining agreement. [00:40:55] Speaker 06: And if there was a dispute, they could negotiate regarding that and proceed to mediation or arbitration, I believe, to resolve that. [00:41:05] Speaker 02: The way Justice Breyer framed the issue [00:41:07] Speaker 02: before him was he thought he was talking about provisions of the contract that provide for indefinite or perpetual extension. [00:41:20] Speaker 02: And here, if I understand the mechanics of this one, this is not like that because putting aside all of the questions about when the notice kicks in and whether the statute applies [00:41:37] Speaker 02: in year zero or year one, right? [00:41:41] Speaker 02: At some point, the district has the ability under this clause to say, no, no, we no longer want to continue Article 12. [00:41:52] Speaker 02: So it's not an in perpetuity provision. [00:41:56] Speaker 02: It's at most transitional. [00:42:02] Speaker 06: If FOP's interpretation is adopted, then FOP is essentially saying it continues in perpetuity until the parties finish arbitration over any ongoing dispute. [00:42:15] Speaker 06: And that is similar to amalgamated transit. [00:42:17] Speaker 02: It's not an exact match, but all that is needed is- Right, but even on their interpretation, [00:42:27] Speaker 02: I don't think they have the ability to make Article 12 perpetual just by dragging their feet or, you know, refusing to agree to any change, right? [00:42:41] Speaker 02: Because if you reach loggerheads, there's an arbitration provision and then the arbitrator can resolve the issue, right? [00:42:49] Speaker 06: And this is how I was connecting it to amalgamated transit, because that was also true under amalgamated transit. [00:42:55] Speaker 06: If you had a dispute, you could take it to an arbitrator, and that would resolve the dispute. [00:42:59] Speaker 06: And so I just think that there's similar ambiguity. [00:43:05] Speaker 06: And amalgamated transit, then Judge Breyer, relied heavily there on the unmistakability doctrine. [00:43:11] Speaker 06: And what he said is, actually, if there's an opportunity, if either party could just walk away from the contract altogether after it expired, even that was enough to create ambiguity. [00:43:22] Speaker 06: So I think that the cleanest way for this court to rule is to say that there's no way that it is unmistakable that in this contract, the district agreed to continue carrying on [00:43:35] Speaker 06: Article 12 in the future, regardless of all of these different possibilities, all these different ways it could be terminable. [00:43:42] Speaker 06: I mean, I think just the fact that it is terminable itself creates ambiguity even if the district didn't actually succeed in terminating it in a timely manner and maybe that results Judge Millett's concern regarding the temporary legislation. [00:43:54] Speaker 06: This is a terminable clause. [00:43:56] Speaker 06: It is not a perpetual binding. [00:43:59] Speaker 06: There's a question as to which is more binding and that itself creates ambiguity. [00:44:02] Speaker 06: If this court is concerned about that, FOP has not satisfied the substantial impairment requirement. [00:44:09] Speaker 06: It has barely addressed it in its complaint, and the arguments that it has made in favor of substantial impairment really fall away once you look at the protections that are already available under the CMPA. [00:44:20] Speaker 05: Can I ask just a quick question on the equal protection claim and this, the Department of Housing Authority, which they contend has sort of the most analogous reach to MPD. [00:44:38] Speaker 05: Do you know how large Department of Housing Authority? [00:44:45] Speaker 05: police force is about the same size. [00:44:49] Speaker 05: We don't know that. [00:44:50] Speaker 06: Oh, I'm sure it's not the same size. [00:44:51] Speaker 06: I'm sure it's nowhere near the same size, but I don't know the size of its force. [00:44:55] Speaker 05: OK, if we assume and I know there's debates about this, but if we assume at this stage that they are. [00:45:03] Speaker 05: in many ways, very factually similar in their scope of their authority. [00:45:11] Speaker 05: Tell me again, why is it okay to just pick NPD to be the one to start with? [00:45:19] Speaker 05: Why does, there's only, oh, we get to be under-inclusive and these type of things. [00:45:22] Speaker 05: Those usually follow after a reason is given. [00:45:25] Speaker 05: And so the reason, what is the reason for focusing on NPD? [00:45:30] Speaker 05: And in particular, I noticed that, I'm not even sure how it all works, but the resolution, I guess, came along with or preceded this statute identified four district residents who had been killed, Jeffrey Price, Duquan Young, Marquise Alston, and Terrence Sterling. [00:45:52] Speaker 05: Whatever the circumstances of those deaths, were those deaths at the hands of MPD or DHA officers? [00:46:03] Speaker 06: I have not looked into that and I do not know. [00:46:06] Speaker 06: I would assume that they're MPD, but it could have been DCHA. [00:46:09] Speaker 06: I'm not sure about that. [00:46:11] Speaker 05: The resolution says MPD has had its instances of police killing. [00:46:15] Speaker 06: Well, then I would assume that the council knew what they were talking about again that's not something that I looked into our research because I don't think it's fair to see this legislation as a response to. [00:46:25] Speaker 06: four specific killings or two specific extra-jurisdictional events. [00:46:30] Speaker 05: That's not my point. [00:46:30] Speaker 05: My point is I asked you, you don't just get to say we get to be under inclusive. [00:46:34] Speaker 05: You need to have a reason, not much of a reason, under rational basis review. [00:46:40] Speaker 05: The reason for treating the two differently, and I wasn't sure if I noticed you hadn't pointed to these MPD deaths, what the council says were deaths of Black [00:46:52] Speaker 05: and the individuals at the hands of MPD as one reason for starting there. [00:46:57] Speaker 05: And so I wasn't sure if you had a different rationale for starting with MPD. [00:47:03] Speaker 06: I listed a few in my brief for not including the Housing Authority. [00:47:09] Speaker 06: And I think the most critical one is that the Housing Authority has a different employer. [00:47:12] Speaker 06: It has a different agency that... That doesn't seem like a very powerful argument for the district. [00:47:20] Speaker 06: Well, when you're talking about a question, I'm sorry, a favor. [00:47:25] Speaker 06: I'm not sure if that's a flattering interpretation for the district, but it is definitely a big difference. [00:47:31] Speaker 06: They're an independent agency, and we're talking about discipline. [00:47:35] Speaker 06: Independent as in they're not controlled by the council? [00:47:37] Speaker 06: They're not controlled by the mayor. [00:47:38] Speaker 06: They are under the council. [00:47:39] Speaker 05: But I know, but they're not controlled by the council. [00:47:41] Speaker 05: I mean, the council is the one that's legislating here. [00:47:43] Speaker 06: But the council is not the one that negotiates the collective bargaining agreements. [00:47:47] Speaker 06: The council is the one that is enacting the laws, but the collective bargaining agreements for MPD are negotiated by the mayor's office. [00:47:56] Speaker 06: There's a specific agency that does that. [00:47:59] Speaker 06: It's an entirely different agency. [00:48:01] Speaker 06: That alone is enough to make it not similarly situated. [00:48:05] Speaker 06: The Supreme Court has said that equal protection does not require a choice between attacking every aspect of a problem or not attacking it at all. [00:48:13] Speaker 06: This is a police reform [00:48:16] Speaker 06: Statute that was the was focusing on MPD in particular when it came to this type of. [00:48:25] Speaker 06: to the accountability. [00:48:26] Speaker 06: And if the court will bear with me, I think it's important to note that the statute has a lot of provisions that deal with things other than use of force and that are not applicable to the housing authority, which handles its own training and discipline. [00:48:40] Speaker 05: Can you answer the question that I was confused about when I asked Mr. Conte about, do the other provisions in here, at least neck restraints, [00:48:54] Speaker 05: Maybe we'll just start with neck restraints. [00:48:59] Speaker 05: Do those apply to other law enforcement agencies in the district like DHA? [00:49:06] Speaker 05: It says law enforcement and special police officer use of neck restraints is excessive. [00:49:12] Speaker 06: I believe so. [00:49:13] Speaker 06: I mean, that's again, a lot of these questions that are proper questions that you're asking here didn't come up in briefing. [00:49:18] Speaker 06: And so I haven't had a chance to confirm, but yes, I think neck restraints would definitely apply, but changes to the body worn camera. [00:49:25] Speaker 06: I actually don't know whether the housing authority uses body worn cameras. [00:49:28] Speaker 06: I don't know whether that applies, but the changes to the police complaints report complaints board, I think is specific to MPD. [00:49:35] Speaker 06: And that includes police officers failure to report violations of rules and regulations, not just use of force regulations, but [00:49:41] Speaker 06: but all of those. [00:49:43] Speaker 06: It limits consent searches and it expands. [00:49:46] Speaker 05: Just for MPD or for all districts? [00:49:50] Speaker 05: You don't know that answer. [00:49:51] Speaker 05: I don't. [00:49:52] Speaker 05: That's all right. [00:49:54] Speaker 05: I was confused by the language in the statute and by that map dot language in section 116, but I guess that's just the way it is. [00:50:02] Speaker 06: And the place where I know the housing authority [00:50:04] Speaker 06: probably wouldn't fall under the comprehensive legislation would be the specific requirements for hiring police officers or for expanding continuing education for officers or, for example, requiring visible officer identification during demonstrations. [00:50:24] Speaker 06: I don't know that housing authority officials are ever around. [00:50:27] Speaker 06: I don't know if they are involved in demonstrations. [00:50:31] Speaker 06: The most important thing, though, with regard to equal protection, [00:50:34] Speaker 06: is that no one disputes that improving police accountability, and FOP is not arguing that police accountability is perfect, nobody disputes that improving it is a legitimate and important government interest. [00:50:46] Speaker 06: And what the council reasonably thought is that allowing management or the council to control the disciplinary process, rather than having FOP have a seat at the table and getting to dig in their heels and bring it to impasse anytime they don't like a change, that that would improve accountability. [00:51:01] Speaker 06: And FOP concedes, and they say this in their amended complaint at appendix 591, that holding one accountable is accomplished through punishment. [00:51:08] Speaker 06: So there is a close rational nexus here. [00:51:12] Speaker 06: Collective bargaining encumbers reform. [00:51:15] Speaker 06: Just the existence of the collective bargaining agreement itself at the time controlled all of the disciplinary actions. [00:51:22] Speaker 06: But even if the CBA was not in effect, like if there was no collective bargaining, [00:51:26] Speaker 06: agreement in effect at the time. [00:51:28] Speaker 06: Just the duty to bargain over disciplinary procedures hinders reform. [00:51:34] Speaker 06: The council created, and it's one of the last provisions in this act, the Police Reform Commission and charged it with studying police discipline and providing evidence-based recommendations for change. [00:51:44] Speaker 06: If collective bargaining still existed regarding discipline, then those evidence-based recommendations may never be brought to fruition. [00:51:52] Speaker 06: That is the reason for the law. [00:51:53] Speaker 06: It is important, it is compelling, and it is certainly rational. [00:51:57] Speaker 04: Anything further? [00:51:58] Speaker 04: No. [00:52:00] Speaker 04: Thank you. [00:52:01] Speaker 04: Thank you. [00:52:02] Speaker 04: All right. [00:52:04] Speaker 04: We'll hear from counsel for petitioner appellant. [00:52:10] Speaker 01: Thank you, your honor. [00:52:12] Speaker 01: One point I want to bring up and it's on this notice issue. [00:52:17] Speaker 01: The collective bargaining agreement, as counsel just acknowledged, is not something that the council enters into. [00:52:25] Speaker 01: It's entered into between the Metropolitan Police Department and agency. [00:52:31] Speaker 01: And so when it says the parties can provide notice of their intent to terminate a provision, that's not accomplished by the council who's not a party as council just conceded passing emergency legislation. [00:52:47] Speaker 01: And that's not the practice between the parties. [00:52:49] Speaker 01: The parties provide notice to one another. [00:52:51] Speaker 04: I thought council referred to a letter. [00:52:55] Speaker 01: I'm not aware of the letter. [00:52:57] Speaker 01: I think counsel also said that's not in the record. [00:52:59] Speaker 01: So I don't know. [00:53:00] Speaker 04: Because it wasn't raised in your brief. [00:53:02] Speaker 04: So there was no reason to put it in. [00:53:04] Speaker 04: But she said, had it been, then she would have moved to supplement the record with the letter. [00:53:10] Speaker 04: So why don't you focus on matters that are most important to your argument in responding to the court's questions and what was argued by Appellee's counsel? [00:53:24] Speaker 01: Sure. [00:53:25] Speaker 01: On the issue of substantial impairment of real world interests. [00:53:30] Speaker 01: Article 12, which is before the court, has a host of real-world interests that are impacted by this legislation. [00:53:41] Speaker 01: It's not just disciplinary in nature, but it ties into the disciplinary provisions. [00:53:48] Speaker 01: The right to carry a weapon couldn't be a more important provision. [00:53:53] Speaker 01: That right to carry a weapon while under disciplinary investigation, [00:53:57] Speaker 01: is part of what is provided for in Article 12. [00:54:01] Speaker 01: It also has provisions that relate to the promotion of police officers while under disciplinary investigation. [00:54:09] Speaker 01: And it has, in addition, provisions directly impacting suspensions without pay. [00:54:15] Speaker 01: So to say that Article 12 has no substantial real-world interest, I think ignores how broad this provision that's been rescinded by the Council's Act is. [00:54:27] Speaker 02: Um, with respect to, um, the amount, is it the case that right now on the ground, DC is proceeding under the pre act system, correct? [00:54:50] Speaker 02: Pre act disciplinary system. [00:54:52] Speaker 01: That's correct. [00:54:54] Speaker 01: And so when counsel raises the argument that that's out of concern for what the court will do, that's not my understanding. [00:55:02] Speaker 01: I mean, there's a carryover provision. [00:55:05] Speaker 01: And so if a new collective bargaining agreement is not negotiated, the carryover provision means it remains in effect. [00:55:12] Speaker 02: But if you assume that the carryover provision [00:55:18] Speaker 02: is transitional in the sense I was discussing with your friend on the other side, rather than giving either side the right to continue Article 12 in perpetuity. [00:55:33] Speaker 02: It's a transitional provision and we're now, however long we are from the enactment of the statute, it doesn't seem like [00:55:46] Speaker 02: a huge deal. [00:55:49] Speaker 02: You know, you've been, whatever disciplinary proceedings have been going on, have been going on under the old statute. [00:55:58] Speaker 02: You would have known from the beginning that Article 12 carries forward, but only for a limited amount of time. [00:56:06] Speaker 02: And that's effectively what's happened here. [00:56:12] Speaker 01: Well, I mean, it is a huge deal in that what we bargained for was not a perpetual agreement. [00:56:21] Speaker 01: And you could look at it as transitional. [00:56:24] Speaker 01: And I would agree with your honor that the carryover is transitional. [00:56:29] Speaker 01: But we have a right to exercise our option one time. [00:56:35] Speaker 01: That's not perpetual. [00:56:37] Speaker 01: But what that right is, is that when the parties are dissatisfied, they will bargain and renegotiate Article 12. [00:56:45] Speaker 01: That right was terminated. [00:56:47] Speaker 01: It just was. [00:56:48] Speaker 01: And it's not a perpetual right. [00:56:50] Speaker 01: It's not the same as amalgamated. [00:56:53] Speaker 01: It's a one-time exercise of a right that by definition will be incorporated into the next collective bargaining agreement. [00:57:02] Speaker 01: And the council terminated that. [00:57:04] Speaker 02: But when you're negotiating future collective bargaining agreements, you do so against the backdrop of existing law, which now includes the statute. [00:57:19] Speaker 01: Presuming that the law is constitutional. [00:57:24] Speaker 01: Clearly constitutional. [00:57:25] Speaker 02: clearly constitutional as applied to future collective bargaining agreements. [00:57:32] Speaker 02: I mean, the only contract clause issue that's, I'll just speak for myself, that's giving me a little bit of pause is just this wrinkle with the, I mean, you think it's more than that, but this Article 12 carryover issue. [00:57:48] Speaker 02: If you're focusing on future [00:57:50] Speaker 02: collective bargaining agreements entered into after the date of enactment. [00:57:56] Speaker 02: There's no impairment problem with those. [00:58:03] Speaker 01: I would argue that if you've created a contract that makes a promise, not in perpetuity, but in the future for the next collective bargaining agreement, it has. [00:58:14] Speaker 01: I mean, that's the very nature. [00:58:17] Speaker 01: The council can say that we're just terminating it as to the next collective bargaining room, which is exactly what they said. [00:58:25] Speaker 01: They identified any collective bargaining agreement entered into after this date. [00:58:30] Speaker 01: But if we have a right [00:58:33] Speaker 01: to have a provision in that agreement that has impaired that right. [00:58:38] Speaker 02: Well, I mean, you have a right to have that provision continue only to the extent that negotiations about the successor agreement are ongoing, correct? [00:58:58] Speaker 02: shall be incorporated into the successor agreement until such time as the parties agree on revisions to Article 12. [00:59:07] Speaker 01: But that's existing Article 12. [00:59:08] Speaker 01: So we have the right for the existing Article 12 to continue into the next negotiated agreement. [00:59:15] Speaker 01: That's separate and apart from the right to then reopen negotiations on Article 12. [00:59:22] Speaker 01: and through this committee process. [00:59:26] Speaker 01: So we have two rights here. [00:59:27] Speaker 01: One is for Article 12 to carry forward to the next agreement and lessen until the parties exercise the right to hold the committee meetings. [00:59:36] Speaker 01: And then depending on when that falls, that could be this collective bargaining agreement, the next, the following. [00:59:44] Speaker 01: But then once that's triggered, that's a separate and independent right to have a committee process bargain for a negotiate [00:59:51] Speaker 01: another Article 12 that will be incorporated into the next collective bargaining agreement. [00:59:58] Speaker 05: All right. [00:59:59] Speaker 05: I'm sorry, just one quick question. [01:00:01] Speaker 05: So the current law expires on April 16th of this year. [01:00:07] Speaker 05: They've all been temporary. [01:00:11] Speaker 05: Do you know if there's a new law that's extending that beyond April 16th? [01:00:18] Speaker 01: I'm not aware, Your Honor. [01:00:21] Speaker 04: All right, anything further council? [01:00:24] Speaker 01: Nothing further, thank you. [01:00:25] Speaker 04: Thank you, we'll take the case under advisement.