ON DEFENDANT’S MOTION FOR RECONSIDERATION
Our original decision,
It is true we did not adopt plaintiff’s interpretation of the regulation lan *454 guage, either with respect to the requirement that the person who received the oral reply be a “superior” ór to the alleged necessity that all the evidence against the accused employеe be divulged to him before he makes his “oral reply.” On both points, our position may, we think, fairly be called a “lesser includеd” position within plaintiff’s. Thus to hold with plaintiff that the “superior” must be one organizationally above the accused in the chain of command would have excluded such logical choices for “oral reply officer” as the personnel officer of the District, who of course is a staff and not a line aide of the Director. Nor did we think the regulation contemplated a full discovery before the employee, who presumably had received charges with full specifics, had even decided whether to deny them. We withheld a full endorsement of plaintiff’s position for the protection of defendаnt, and therefore we do not think defendant has a right to complain.
The regulation and Manual are both cryptic as tо what is to be accomplished by the “oral reply.” Courts have concluded, rather by deduction than from express languаge, that the procedure is meant to be a meaningful protection for the employee, and that to be meaningful it has to have certain attributes. See our decision, supra, and eases cited therein. One of these attributes concerns the choice of the “oral reply officer” in light of the prescription that he be a “superior” and have authority to recommend a decision in the premises. The authors of these requirements could not have intended the “oral reply” to be downgraded and rendered meaningless, but this would be accomplished if the designated “oral reply officer” was some uninformed and incompetent person, whose recommendation, if made at all, would be filed and forgotten. The deciding officer would comply if he heard the “oral reply” himself or designated a member of the regular circle whо would advise him for or against the dismissal of the employee in the regular course of their duties. He might designate someone else in unusual situations, but the reason for doing so should either be obvious, or should be stated, or the choice should be assented to by the other side. For example, in good administration he might at times desire the “oral reply officer” to be a рerson of the accused employee’s race or faith.
Defendant seeks in its motion to build up the qualifications of Mr. Gildea, a tax fraud investigator, to receive the designation," and also his performance of the duty. The fact remаins however, that Mr. Gildea was selected, not because of his qualifications, but in a process of simple rotation among the organizational subdivisions operating in the District. In general, his performance may, as defendant says, have illustratеd qualifications but as we pointed out, it illustrated disqualifications too. Defendant now wants to show that Mr. Gildea submitted a recоmmendation, with supporting reasons at some length. This comes too late. Nossen v. United States,
Defendant’s рosition in its motion is, if we understand it, and it would show, that the “oral reply officer” was disinterested and impartial, followed the *455 evidеnce closely, questioned plaintiff about his allegations, and reported his conclusions. We think these points, if valid, still misaрprehend the role of the “oral reply officer.” Concern as to his position in management entered into the formulation of the Manual requirements that the “oral reply officer” be “superior” to the employee, that he havе “authority either to take or to recommend final action”, but conceding that his authority to recommend need not be “exclusive” and need not be the “final recommendation submitted.” These are somewhat clumsy attempts to describe оne who is a member of the management team and to exclude one who is not. Thus, the purpose of the regulation, as construed in the Manual, is to assure that there will be significant conference and negotiation with management beforе things get to the point of anyone’s being fired. Defendant still does not attempt to show that this occurred.
If it is administratively determined that such a procedure as was employed here was nevertheless within the purpose of the regulation, it would be a very simple matter to say so by amendment to the regulation, the Manual, or both. Thereby all this court has said would be rendered obsolete, and without regard to our words, future “oral replies” would be received in the manner the Commission deemed appropriate.
Accordingly, the motion for reconsideration is denied.