JOSE RODRIGUEZ v. DISTRICT OF COLUMBIA

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CV-1027

JOSE RODRIGUEZ, et al., APPELLANTS,

V.

DISTRICT OF COLUMBIA, et al., APPELLEES.

Appeal from the Superior Court
of the District of Columbia
(CAB-7096-11)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued February 4, 2015 Decided September 17, 2015)

Daniel J. McCartin, with whom Anthony M. Conti was on the brief, for
appellants.

Holly M. Johnson, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia at the time the brief was filed,
Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General,
were on the brief, for appellees.

Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

FISHER, Associate Judge: Metropolitan Police Department (“MPD”) officers

Jose Rodriguez, Andrew Zabavsky, and Benjamin Fetting sued the District of
 2

Columbia and other defendants 1 for alleged violations of the Whistleblower

Protection Act (the “WPA”). 2 The trial court rejected those claims, granting

summary judgment to the defendants. The officers now appeal from that order and

also assert that the court abused its discretion by denying their motion for leave to

amend their complaint. Because no reasonable juror could have found that

appellants made protected disclosures, or that prosecutors from the Office of the

Attorney General (“OAG”) either issued illegal orders to appellants or interfered

with Zabavsky’s right to furnish information to the Council of the District of

Columbia (the “Council”), and because, as we explain below, the proposed

amendment to appellants’ complaint would have been futile, we affirm.

I. Introduction

The WPA was enacted to safeguard “the public interest [that] is served when

employees of the District government are free to report waste, fraud, abuse of

authority, violations of law, or threats to public health or safety without fear of

1
The other defendants were Deputy Attorney General Robert Hildum,
Assistant Deputy Attorney General Alicia Washington, Criminal Section Chief
M. Kimberly Brown, and MPD Assistant Chief Michael Anzallo.
2
D.C. Code §§ 1-615.51—615.59 (2001 & 2010 Supp.).
 3

retaliation or reprisal.” D.C. Code § 1-615.51 (2001). It prohibits a supervisor

from taking or threatening to take a “prohibited personnel action” against a

government employee or otherwise retaliating because of the employee’s

“protected disclosure” or his refusal to comply with an “illegal order.” D.C. Code

§ 1-615.53 (a) (2001). It further provides that no person shall “interfere with or

deny the right of employees . . . to furnish information to the Council.” D.C. Code

§ 1-615.53 (b) (2010 Supp.). To protect these rights, the WPA established a civil

cause of action, allowing aggrieved employees to seek monetary and equitable

relief. D.C. Code § 1-615.54 (a)(1) (2010 Supp.).

Appellants claim that they made protected disclosures which reported gross

mismanagement, violations of law, and gross misuse of public resources by OAG

and MPD in connection with the District’s program to combat impaired driving.

They also claim that they refused to comply with unlawful orders by OAG

prosecutors directing them to limit or “alter” their trial testimony. According to

appellants, supervisory employees at MPD and OAG retaliated by instigating

misconduct investigations against them and denying them promotions. Officer

Zabavsky also contends that OAG interfered with his right to furnish information

to the Council about the District’s response to problems with its breathalyzer

instruments. We discuss these facts at more length below.
 4

II. Factual and Procedural Background

In the District, three charges penalize impaired driving: driving under the

influence (“DUI”), driving while intoxicated (“DWI”), and operating while

impaired (“OWI”). See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I)-(II), (b)(2)(A)

(2010 Supp.) (repealed 2013) (currently D.C. Code §§ 50-2206.11, -2206.14 (2014

Repl.)). DWI is distinguished from the other two charges because it is a per se

offense, meaning a defendant may be convicted by mere proof that he was

operating a vehicle while the concentration of alcohol in his blood, breath, or urine

met or exceeded a certain level. See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I)

(currently D.C. Code § 50-2206.01 (9)(A)(i) (2014 Repl.)). MPD officers often

used Intoxilyzers—devices for measuring the concentration of alcohol in a

subject’s breath—to determine whether a motorist was violating the DWI statute.

On February 3, 2010, MPD discovered that some of its Intoxilyzers were

reporting inaccurate results. MPD immediately suspended the use of all

Intoxilyzers, instructing officers not to use them pending recertification. In cases

where officers had used Intoxilyzers, OAG decided not to pursue DWI charges and

instead proceeded with DUI and OWI charges, which do not require proof of
 5

breath-alcohol content. OAG continued to prosecute for DWI in cases where urine

tests had been performed.

A. Zabavsky’s Email to Fellow MPD Officers

About a week and a half after the problem with Intoxilyzers was discovered,

an MPD sergeant emailed several officers, including Zabavsky and Rodriguez,

notifying them that recertified Intoxilyzers were available. The next day,

Zabavsky learned that OAG was still not bringing DWI charges, even in cases

involving the recertified Intoxilyzers. On February 22, in a reply to the sergeant’s

email, Zabavsky shared this information with other officers. He expressed

frustration about “why MPD [was] keeping [officers] in the dark” and suggested

that the officers use the equipment at other law enforcement agencies (such as the

Capitol Police or U.S. Park Police) for breath testing.

B. Request to Limit In-Court Testimony

Over the next few months, more information about the Intoxilyzers became

available. On February 25, the Mayor issued a press release alerting members of

the public to the problem and informing them that an investigation was underway.
 6

Representatives from MPD and OAG also notified the D.C. Courts, the D.C.

Superior Court Trial Lawyers Association, and the Public Defender Service about

the situation. News outlets reported that the Intoxilyzers had compromised nearly

400 convictions, some dating as far back as 2008.

Because “[t]here were all sorts of rumors” floating around about “whether

the motors went bad, [or] whether somebody physically . . . tinkered with the

instruments,” MPD officers “were being pressed about” the Intoxilyzers in court.

For impeachment purposes, defense attorneys tried to introduce testimony that

officers had signed certifications generated by the Intoxilyzers which later turned

out to be false. OAG attorneys argued that testimony about the devices was neither

relevant nor material because they “weren’t using the MPD Intoxilyzer scores in

any of [their] cases.”

To keep information that they believed was irrelevant and potentially

inaccurate out of their trials, line prosecutors urged appellants to limit their

testimony about the Intoxilyzer investigation to first-hand knowledge. For

example, one OAG attorney told Rodriguez, “[y]ou can’t testify to something that

you don’t know.” The prosecutors explained that, because appellants were not

personally involved in the Intoxilyzer investigation, their testimony would be
 7

hearsay. Appellants viewed things differently, however. They believed that they

did know about the investigation because they had had “conversations with some

people about [it]”; “the word was already out and everything and [they] kind of

knew about it.” When prosecutors advised them to “just say [I] don’t know,” they

refused to “lie.”

C. Young Matter Referred to Internal Affairs

In July 2010, Deputy Attorney General Robert Hildum referred a matter

involving Zabavsky and Rodriguez, and possible tampering with evidence, to

MPD’s Internal Affairs Division (“IAD”). Four months earlier, the officers had

arrested a female suspect, Terran Young, for impaired driving and obtained a urine

sample from her. The officers’ report stated that a female officer had witnessed the

giving of the sample, in accordance with MPD protocol, but also noted that the

container was wet and cold, an indicator that toilet water may have been splashed

into it.

A toxicology report revealed that the amount of alcohol in Young’s urine

was less than .02 grams of ethanol per 100 milliliters of urine, well below the DWI

threshold of .10 grams. See D.C. Code § 50-2201.05 (b)(1)(A)(i)(I). OAG
 8

believed that the urine sample had been diluted; but if an officer had monitored the

collection of the sample, as Zabavsky and Rodriguez reported, Young could not

have diluted the sample. This discrepancy raised concerns about the veracity of

the officers’ report. Hildum decided to refer the matter to IAD for investigation

because, “[i]f [OAG] didn’t do anything,” defense attorneys might make

allegations that the officers had lied, and “[OAG] might be accused of covering up

a problem.”

D. Establishing a New DWI Program

Three months later, Assistant Chief Patrick Burke selected Zabavsky and

Rodriguez to attend training on breath-testing and to assume leadership roles in

MPD’s new DWI program. However, Burke later learned from OAG that

Zabavsky and Rodriguez were under investigation for evidence tampering.

Assistant Chief Michael Anzallo (the leader of IAD) advised Burke to find other

officers. Although Zabavsky and Rodriguez’s “infraction [might] turn out to be

[minor],” the investigation involved their “veracity” and “the program [needed] to

be very clean.” Burke decided to rescind his offers to Zabavsky and Rodriguez.

He next selected Fetting as a candidate but backtracked after learning from OAG

that Fetting had a conviction for “leaving-after-colliding.”
 9

E. Miller Matter Referred to Internal Affairs

On December 14, 2010, as part of its investigation of the Young matter, IAD

asked OAG for case files from arrests made by Zabavsky and Rodriguez during the

prior two years, specifically files related to any female suspects who had given

urine samples. With Assistant Deputy Attorney General Washington’s permission,

Criminal Section Chief M. Kimberly Brown emailed IAD a sexual harassment

complaint stemming from the officers’ 2009 arrest of Marissa Miller. Because the

Miller matter involved a different complainant and did not involve a urine sample,

it became a separate investigation.

F. Zabavsky’s Email to Chief Lanier

Two weeks later, Zabavsky emailed MPD Chief Cathy Lanier, seeking her

assistance in “getting IAD to work on and complete the [Young] investigation,”

which was in its sixth month. Zabavsky reported that OAG had notified defense

attorneys about the nature of the investigation, resulting in “all sorts of crazy

accusation[s]” of evidence tampering against him. A few of his cases had been
 10

dropped and many others had been continued indefinitely until the investigation

was completed.

Zabavsky believed that the investigation was instigated by OAG “in

retaliation for speaking the truth on the stand regarding the Intoxilyzer and

Intoximeter situation,” remarking that “[s]ome people over at the OAG’s office

would rather [officers] stay quite [sic] or even lie.” Confident that the

investigation would exonerate him of any wrongdoing, he asked Chief Lanier to

assist in moving the process along.

G. Baumann’s Letter to D.C. Officials

Appellants thereafter met with Kristopher Baumann, the Chairman of the

Fraternal Order of Police (“FOP”). They explained how they had refused to limit

their trial testimony about the Intoxilyzers and expressed concerns about what they

believed to be retaliatory actions by OAG and MPD. On January 24, Baumann

sent letters to the Attorney General, the Inspector General, and the Chairman of the

D.C. Council Committee on Public Safety and the Judiciary. The letters detailed

the officers’ representations and requested that the Office of the Inspector General

and the Council investigate OAG for ethical abuses and violations of law.
 11

H. Developments in the Young Matter

On February 10, 2011, IAD interviewed Rodriguez in connection with the

Young investigation. Rodriguez maintained that “he [had] asked Officer Rhonda

Winters to witness the collection of Ms. Young’s [urine] sample” and “watched

Officer Winters observe[] the sample.” However, “[Ms. Young] recalled going

into the bathroom alone” and, according to Winters, at that time Rodriguez had

never asked her to observe an arrestee giving a urine sample. The line prosecutor

assigned to the Young case also reported that Rodriguez had previously admitted

that he “allowed Ms. Young to go into the rest room alone.”

Based on the conflicting reports, IAD concluded that Rodriguez had made a

false statement in his interview and revoked his police powers pending trial board

review. In its final investigative report, IAD recommended that the allegation of

misconduct against Rodriguez be sustained and cleared Zabavsky of any

wrongdoing.

I. The Council Hearing
 12

On February 28, 2011, at 11:00 a.m., the Council of the District of Columbia

held a public hearing on the District’s response to the Intoxilyzer issue. At the

hearing, Fetting testified that the District had mishandled its DWI program and had

retaliated against him for refusing to lie in court. Rodriguez also testified, stating

that OAG had disregarded ethical and judicial rules in its handling of the Miller

matter.

Zabavsky did not testify before the Council. On the morning of the hearing,

he was scheduled to testify in three trials. When Zabavsky arrived at Superior

Court, he told the line prosecutor that he needed to testify before the Council at

10:00 a.m. The prosecutor said he knew and “would see what he could do.” After

securing two plea deals and a continuance, the prosecutor released Zabavsky at

12:30 p.m.

By the time Zabavsky arrived at the Council hearing, Rodriguez and Fetting

had already testified. The Council had moved on to other topics, and FOP

Chairman Baumann did not think that the Council would want to go back to allow

Zabavsky to testify, so Zabavsky submitted a written statement in lieu of oral

testimony. There, he expressed his belief that OAG and MPD had mishandled the
 13

Intoxilyzer situation and requested that the Council take immediate action against

OAG.

J. Urine Sample Witnessed by Rodriguez

The following month, an OAG line prosecutor received an unusual

toxicology report for a urine sample witnessed by Rodriguez. The concentration of

alcohol in the sample was inconsistent with human urine, raising questions as to

whether the sample had been adulterated. Section Chief Brown referred the matter

to Deputy Attorney General Hildum, suggesting that IAD review it. Hildum

referred the matter to IAD, which later issued a final investigative report finding

insufficient facts to support the allegation of misconduct against Rodriguez.

K. Resolution of the Miller and Young Matters

IAD eventually released a final report noting that Ms. Miller had failed to

cooperate with its investigation and concluding that there were insufficient facts to

support her sexual harassment complaint against Rodriguez and Zabavsky. In

connection with the Young matter, MPD served Rodriguez with a notice of

proposed adverse action recommending his termination. An MPD adverse action
 14

panel later exonerated Rodriguez, finding insufficient evidence to sustain the

charges against him.

L. Superior Court Proceedings

Appellants filed a civil complaint in the Superior Court alleging that (1) after

they made various protected disclosures and refused to comply with illegal orders,

MPD and OAG took retaliatory actions against them; and (2) OAG had interfered

with Zabavsky’s right to furnish information to the Council. Appellants later filed

a motion to amend their complaint, seeking to add an additional instance of alleged

retaliation against Rodriguez. The trial court denied the motion, finding that the

amendment would be futile.

The trial court thereafter granted appellees’ motion for summary judgment,

ruling that, based on the undisputed facts, no reasonable juror could find that

(1) appellants had made protected disclosures, (2) OAG had asked appellants to

comply with illegal orders, (3) appellees had taken prohibited retaliatory actions

against appellants, or (4) OAG had interfered with Zabavsky’s right to furnish

information to the Council. This appeal followed.
 15

III. Standard of Review

In our review of the trial court’s order granting summary judgment, “we

assess the record independently . . . [and view it] in the light most favorable to the

party opposing the motion.” Wilburn v. District of Columbia, 957 A.2d 921, 924

(D.C. 2008) (alteration in original) (citation omitted). We will affirm the ruling “if

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.” Id. (citation omitted).

IV. The Whistleblower Protection Act

To prove a WPA violation, a government employee must establish (1) that

he was the subject of a prohibited personnel action (or was otherwise retaliated

against) because he made a protected disclosure or refused to comply with an

illegal order, or (2) that a person interfered with his right to furnish information to

the Council. See D.C. Code § 1-615.53 (a)-(b).

An illegal order “means a directive to violate or to assist in violating a

federal, state or local law, rule, or regulation.” D.C. Code § 1-615.52 (a)(4)

(2001). A protected disclosure is any disclosure of information by an employee
 16

that the employee reasonably believes evidences, among other things, gross

mismanagement, gross misuse or waste of public resources, a violation of law, or a

“substantial and specific danger to the public health and safety.” D.C. Code § 1-

615.52 (a)(6) (defining “protected disclosure”). “A purely subjective perspective

of an employee is not sufficient even if shared by other employees.” Zirkle v.

District of Columbia, 830 A.2d 1250, 1260 (D.C. 2003) (citation omitted). An

employee’s subjective belief is reasonable only if “a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

employee [could] reasonably conclude that the actions of the government evidence

[gross mismanagement, gross misuse of public resources, a violation of a law, or

other official misconduct].” Id. at 1259-60.

V. Claims of Gross Mismanagement

A. Zabavsky’s Email to Fellow MPD Officers

As an “FYI” to fellow officers, Zabavsky disclosed in a February 22 email

that OAG would “no paper” DWI charges and proceed instead with DUI and OWI

charges. According to appellants, this sharing of information disclosed gross

mismanagement because the policy “prevented the OAG from . . . successfully
 17

prosecuting [DWI] crimes.” Zabavsky’s email does disclose OAG’s new policy,

but it neither states nor implies that the policy “create[d] a substantial risk of

significant adverse impact on [OAG’s] ability to accomplish its mission.” District

of Columbia v. Poindexter, 104 A.3d 848, 855 (D.C. 2014) (quoting Embree v.

Dep’t of Treasury, 70 M.S.P.R. 79, 85 (1996)) (defining gross mismanagement).

From the text of the email, there is no indication that Zabavsky subjectively

believed that the policy was an example of gross mismanagement. See Freeman v.

District of Columbia, 60 A.3d 1131, 1151 (D.C. 2012) (“[T]he plaintiff personally

must have had . . . a belief [that his disclosure evidenced official misconduct] at the

time the disclosure was made.”).

Even if there were a genuine issue of material fact regarding whether the

email disclosed Zabavsky’s subjective belief that the policy would jeopardize

OAG’s ability to accomplish its mission, his belief would not have been reasonable

given the circumstances. At least some of MPD’s Intoxilyzers had been

improperly calibrated and had reported inaccurate results, casting a cloud of

suspicion over the District’s program to combat impaired driving. To promote the

integrity of the program and restore public confidence in the office, OAG exercised

its prosecutorial discretion and chose to forgo new DWI prosecutions based on

breath tests while it conducted a careful investigation of the problem. This policy
 18

ensured that OAG’s convictions were not the product of faulty breath testing but

allowed OAG to continue safeguarding public safety by pursuing DUI and OWI

charges.

Zabavsky argues that pursuing DUI and OWI convictions did not adequately

ensure the public safety because, unlike some DWI convictions, they do not carry

mandatory jail sentences and trigger reciprocal suspension in Virginia and

Maryland. He therefore concludes that OAG’s policy was an act of gross

mismanagement, but he does not clearly and independently argue that his email

disclosed a “substantial and specific danger to the public health and safety,” a

distinct class of protected disclosures under the WPA. See D.C. Code § 1-615.52

(a)(6)(E). Moreover, even if Zabavsky had raised this claim, it would fail for the

same reasons that his gross mismanagement claim does.

Put otherwise, Zabavsky challenges whether OAG’s charging decision was a

sound exercise of prosecutorial discretion. But “[t]he WPA is not a weapon in

arguments over policy . . . .” Zirkle, 830 A.2d at 1260 (citation omitted). “For

there to be a protected disclosure, an employee must disclose such serious errors

by the agency that a conclusion the agency erred is not debatable among

reasonable people.” Wilburn, 957 A.2d at 925 (citation omitted). On the
 19

undisputed facts, where OAG continued to prosecute cases for DUI and OWI, no

reasonable juror could conclude that OAG’s policy decision not to pursue DWI

charges until the Intoxilyzer investigation was completed created a “substantial and

specific danger to the public health and safety” or constituted “gross

mismanagement.” D.C. Code § 1-615.52 (a)(6).

B. Zabavsky’s Email to Chief Lanier

Appellants next contend that Zabavsky reasonably believed that his email to

Chief Lanier evidenced OAG’s gross mismanagement because it disclosed that the

Young “investigation was taking so long, it had the effect of causing ‘quite a few’

DUI cases to be dropped or continued.” According to Zabavsky, to avoid

providing the trial court and defense attorneys with specific details about the

investigation, OAG elected to dismiss and continue cases involving him,

“preventing the OAG from accomplishing its mission of prosecuting drunk driving

cases.” However, Zabavsky did not raise this theory of gross mismanagement in

his email. His email attributed the dismissals and continuances to the dilatory pace

of IAD’s investigation.
 20

Zabavsky wrote to Chief Lanier “with the hope that [she] could help out

with speeding up [the Young] investigation.” He explained that OAG had released

a “one sentence statement” to defense attorneys notifying them about the

investigation,3 which had “started all sorts of crazy accusation[s] by the defense

attorney’s [sic]” that he and Rodriguez had “tampered with numerous urine

samples” and “caused quite a few cases to be dropped and many other cases

continued until [the] investigation [wa]s over.” However, he did not assert that

these things occurred because OAG refused to provide defense attorneys with more

detailed information about the investigation. (Indeed, the factual investigation was

still underway so OAG did not yet have a full explanation to give.) Zabavsky,

instead, placed the blame on the length of IAD’s investigation, noting that it “ha[d]

been dragging on” for six months and remarking “how hard could it be to pick up

the phone and call the defendant.”

Because OAG and IAD are separate entities, Zabavsky’s complaints about

the pace of IAD’s investigation cannot have disclosed gross mismanagement by

OAG. Insofar as appellants challenge OAG’s initial referral of the Young matter

3
Zabavsky and Rodriguez were aware of the pending investigation, which
arguably created a motive to “curry favor” with the government while testifying.
Therefore, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.
United States, 405 U.S. 150 (1972), OAG was obliged to reveal the pending
investigation to defense attorneys for impeachment purposes.
 21

to IAD, that claim also fails. As the trial court noted, “it would be tantamount to

dereliction of duty if [OAG] had swept [the Young] problem under the rug.” The

discrepancy between the officers’ report and the toxicology results in the Young

matter had potentially serious implications. Either the officers had violated MPD

protocol requiring a female witness for the urine sample and falsely represented

that they had secured a witness, or the officers had potential credibility issues

“because they arrested somebody for DUI -- or DWI that they believed was drunk

and [the toxicology test] came back .02,” calling into question their assertions that

Young appeared to be intoxicated. “If [OAG] didn’t do anything,” “[they] might

[later] be accused of covering up a problem.” Zabavsky himself conceded that he

would want to know more about such a discrepancy, belying any contention that he

subjectively believed that OAG’s referral of the matter to IAD was itself an act of

gross mismanagement.

C. Baumann’s Letters and Appellants’ Testimony Before the Council

To support their next claims, appellants repeatedly use the term “protected

disclosure” but fail to identify any specific statement from either Baumann’s
 22

letters4 or their Council testimony that supports a claim of gross mismanagement.

Hensley v. District of Columbia Dep’t of Emp’t Servs., 49 A.3d 1195, 1206 (D.C.

2012) (“We have held repeatedly that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”

(citation omitted)). Our review of the letters and testimony has uncovered no such

statements.5

VI. Gross Misuse of Public Resources

Appellants contend that OAG and MPD neglected to inform officers about

the “no paper” policy, causing “officers [to waste] public resources by continually

performing breath tests . . . that would never be used in the prosecution of any

crimes.” Because Zabavsky’s February 22 email disclosed OAG’s “no paper”

4
Because Baumann authored, signed, and sent the letters, and it is not clear
that appellants reviewed and approved them before they were sent, the parties
dispute whether appellants may claim they are protected by any disclosures made
therein. We assume but do not decide that the letters may be attributed to
appellants because we nevertheless conclude that they are not protected
disclosures.
5
Appellants do specify that Baumann’s letters and their Council testimony
reported their refusals to limit their in-court testimony about Intoxilyzers. Those
facts are material to their claims that they disclosed violations of law, which are
addressed below in Section VII.
 23

policy, appellants argue that it reported a gross misuse of public resources. It did

not.

As mentioned above, Zabavsky’s email characterizes his description of

OAG’s new “no paper” policy as an “FYI.” It neither states nor implies that OAG

withheld information about the policy and thereby caused officers to waste

resources by needlessly conducting breath tests. Although the email does express

frustration about “why MPD [was] keeping [officers] in the dark,” it fails to state

or imply that any misuse or waste of public resources resulted from MPD’s silence.

No reasonable juror could find that Zabavsky reasonably believed that his email

disclosed what it neither stated nor implied. See Freeman, 60 A.3d at 1143 (“[A]n

employee must have had such a [reasonable] belief at the time the whistle was

blown in order to state a claim under the DCWPA.” (emphasis in original)). And,

as Judge Epstein aptly observed, “[i]t is absurd to contend that whenever an

employee expresses frustration about the scope of information-sharing or the pace

of decision-making in a large government organization, that employee becomes a

whistleblower insulated to a significant degree from adverse personnel actions.”

VII. Violations of Law and Refusals to Comply With Illegal Orders
 24

Appellants contend that “OAG attorneys were instructing [them] to lie on

the witness stand” when they told appellants “to limit their testimony regarding the

Intoxilyzers.” Because appellants “refused to limit their testimony and lie under

oath,” they conclude that they not only made protected disclosures reporting

violations of law, see D.C. Code §§ 1-615.52 (a)(6)(D), -615.53 (a), but also

refused to comply with illegal orders, see D.C. Code §§ 1-615.52 (a)(4), -615.53

(a). They claim to have made additional protected disclosures about these

violations of law in Zabavsky’s email to Chief Lanier, Baumann’s letters to

District officials, and the testimony of Rodriguez and Fetting before the Council.

We disagree.

Appellants concede that no prosecutor specifically instructed them to lie.

The prosecutors said something to the effect of “[j]ust say you don’t know,”

explaining that “it would be hearsay” for them to testify about the Intoxilyzer

investigation because “[they’re] not the ones who discovered the problem.”

Appellants make no claim that they actually had personal knowledge about the

District’s investigation of the Intoxilyzers. In Zabavsky’s words, “[they] basically

[had] heard how MPD was handling the investigation” from other officers.
 25

Particularly in light of the disclosures that had been made to defense

attorneys and to the public, no “disinterested observer,” see Zirkle, 830 A.2d 1259-

60, could conclude that appellants, who characterize themselves as “experienced

trial witnesses who regularly testify in court,” reasonably believed that the

prosecutors’ instructions to limit their testimony to first-hand observations

suborned perjury. As the trial court pointed out, “OAG had a legitimate interest in

making sure that (1) any information provided to defendants or the public at large

about the problems with Intoxilyzers was accurate; (2) the results of the

investigation would not be disclosed until the investigation was complete; and

(3) any interim or final results of the investigation would be disclosed in an orderly

and comprehensive way, and not on a piecemeal basis.” Appellants’ refusals to

limit their testimony therefore could not have constituted protected disclosures of

violations of law. Because the record contains no evidence of any actual suborning

of perjury, we likewise hold that no reasonable juror could find that appellees

directed appellants to violate the law, defeating appellants’ claims that they refused

to comply with an illegal order.6

6
We do not decide whether the WPA requires that an employee have
refused to comply with an order that is actually illegal or whether it is sufficient
that the employee reasonably believed the order to be illegal because appellants
have failed to present evidence of either a reasonable belief or actual illegality.
Compare D.C. Code § 1-615.52 (a)(6) (“Protected disclosure means any disclosure
of information . . . that the employee reasonably believes evidences . . . [a]
(continued…)
 26

VIII. Appellants’ Motion to Amend

Appellants have failed to present evidence sufficient to establish that they

made any protected disclosures or refused to comply with any illegal orders,

defeating their retaliation-based WPA claims. See D.C. Code § 1-615.53 (a).

Because appellants’ motion for leave to amend their complaint did not seek to

allege any additional protected disclosures or refusals to comply with illegal

orders, but instead only sought to allege an additional instance of retaliation, we

affirm the trial court’s finding that the amendment would have been futile.

IX. Interference With the Right to Furnish Information

The parties do not dispute the trial court’s ruling that the WPA prohibits a

supervisor from unreasonably interfering with an employee’s right to furnish

information to the Council. See D.C. Code § 1-615.53 (b). The heart of their

disagreement is whether, by keeping Zabavsky in court and delaying his arrival at

(…continued)
violation of a federal, state, or local law, rule, or regulation.” (emphasis added)),
with D.C. Code § 1-615.52 (a)(4) (“Illegal order means a directive to violate or to
assist in violating a federal, state or local law, rule, or regulation.”).
 27

the public hearing, an OAG line prosecutor unreasonably interfered with

Zabavsky’s right. Applying well-accepted canons of statutory construction, we

adopt the trial court’s interpretation of D.C. Code § 1-615.53 (b) and affirm its

finding that the prosecutor did not unreasonably interfere with Zabavsky’s right.

A. Statutory Interpretation

“The primary and general rule of statutory construction is that the intent of

the lawmaker is to be found in the language that he has used.” District of

Columbia v. Reid, 104 A.3d 859, 867 (D.C. 2014) (citation omitted). We “first

look at the language of the statute by itself to see if the language is plain and

admits of no more than one meaning.” Dobyns v. United States, 30 A.3d 155, 159

(D.C. 2011) (citation omitted). We “may appropriately look beyond plain

meaning, however, where . . . the literal meaning of the statute produces absurd

results.” Id. (citation omitted).

The text of D.C. Code § 1-615.53 (b) states, in pertinent part, that “a person

shall not interfere with or deny the right of employees, individually or collectively,

to furnish information to the Council.” Interference means “[a]n obstruction or

hindrance.” Black’s Law Dictionary 937 (10th ed. 2014). By logical extension, to
 28

interfere means to obstruct or to hinder. By its plain meaning, therefore, the

provision prohibits any person from obstructing, hindering, or denying an

employee’s right to furnish information to the Council, without reference to the

circumstances surrounding the obstruction, hindrance, or denial. If interpreted

literally, it would, for example, reach an MPD officer who blocks traffic for safety

reasons and inadvertently prevents a District employee from testifying at a public

hearing before the Council. It might also reach a trial judge who insists that a

detective who was a crucial witness in a murder trial complete his testimony before

going to testify before the Council.

To avoid such absurd results, we examine the provision’s legislative history.

Section 1-615.53 (b) was enacted to ensure that “supervisors cannot interfere with

communications to the Council.” D.C. Council, Report on Bill 18-233 at 9

(Nov. 19, 2009). The overarching purpose of the WPA is to “[e]nhance the rights

of District employees to challenge the actions or failures of their agencies . . .

without fear of retaliation” and to “[g]uarantee the rights of employees to contact

and communicate with the Council.” D.C. Code § 1-615.51. In light of these

purposes, we agree with Judge Epstein’s conclusion that the statute applies “only
 29

when a supervisor [7] interferes with an employee’s right to provide information to

the Council” and that it “prohibits only unjustified and unreasonable interference.”

B. Application

Appellants concede that Zabavsky knew he was scheduled to testify both

before the Council and in three trials on the morning of February 28 but did not

follow “the normal process to notify the prosecutor[]” of his continuance request

by email. Zabavsky instead waited until the day of trial to tell the prosecutor of his

scheduling conflict. Because the court might reject the plea agreements or the

defendants might balk at entering their pleas, thus forcing the case to trial, the

prosecutor retained his witness until the court accepted two plea agreements and

granted a continuance in his third case.

Notwithstanding these facts, appellants contend that whether the prosecutor

acted reasonably was a disputed issue because it was not unusual for officers to

seek continuances on the day of trial and the record supports an inference that the

7
The trial court assumed, without deciding, that the prosecutor qualified as
a supervisor. We, however, doubt that a line prosecutor employed by OAG “has
the authority to effectively recommend or take remedial or corrective action”
against an officer employed by MPD. See D.C. Code § 1-615.52 (a)(8) (defining
supervisor).
 30

prosecutor knew, in advance, that Zabavsky wanted to testify before the Council.

Appellants also emphasize that Zabavsky’s absence would not have jeopardized

the prosecutions because the prosecutor resolved the matters short of trial.

But even if there were a jury question whether the prosecutor acted

justifiably, he did not in fact prevent Zabavsky from exercising his § 1-615.53 (b)

right. According to Zabavsky’s undisputed deposition testimony, he arrived at the

hearing before it concluded but did not request to testify. At Baumann’s

suggestion, he chose instead to submit a written statement because Rodriguez and

Fetting had already testified and the Council had moved on to other topics. In that

written statement, he alleged with great detail that OAG and MPD had mishandled

the Intoxilyzer situation and requested that the Council take immediate action.

Under these circumstances, the prosecutor neither denied nor unreasonably

interfered with Zabavsky’s right to furnish information to the Council.

In light of our holding, we do not reach the trial court’s alternative finding

that the prosecutor’s actions were protected by immunity. Likewise, because we

hold that appellants did not make protected disclosures and did not refuse to obey

illegal orders, we do not address the trial court’s finding that appellants failed to
 31

present evidence sufficient to “support an inference that any individual defendant

retaliated against any plaintiff” for engaging in conduct protected by the WPA.

X. Conclusion

In sum, we reject appellants’ arguments that the trial court usurped the fact-

finding role of the jury. Appellants did not meet the legal standards required to

establish a violation of the WPA. Cf. Poindexter, 104 A.3d at 859 (jury verdict in

favor of plaintiff overturned “because appellee’s evidence failed to show that she

made a ‘protected disclosure’ on any basis”); Freeman, 60 A.3d at 1154 (judgment

for plaintiff vacated on appeal; “as a matter of law” plaintiff did not prove that he

made a protected disclosure). For the foregoing reasons, we affirm the judgment

of the Superior Court.