Las Vegas POA

Silence Is Not Acceptance Of A 15-Day Suspension

Written on 12/10/2020
Will Aitchison

Sholanda Miller was a police officer with the Washington, D.C. Metropolitan Police Department (MPD). Miller lived with Eric Shorts, with whom she was romantically involved. During an investigation of a drug distribution enterprise, the FBI wiretapped Shorts’ telephone. In recorded calls, Shorts disclosed recent criminal activity to Miller and thanked her for informing him of increases in police presence. Miller did not report any of this information to MPD.

Shortly after Shorts was arrested, MPD revoked Miller’s police powers and referred the matter to the U.S. Attorney’s Office. On July 20, 2009, the U.S. Attorney’s Office issued a letter of declination stating it would not bring criminal charges against Miller.

On November 23, 2009, MPD issued a Notice of Proposed Adverse Action (NPAA) recommending a 15-day suspension for Miller. The NPAA gave Miller 15 days to submit a response, including evidence to controvert or mitigate the facts set forth in the investigative report. The NPAA informed Miller that if she did not file a response within 15 days, “the charges and specification as outlined will be evaluated based upon the evidence of record.” Miller did not submit a response to the NPAA.

When MPD later terminated Miller, she appealed, arguing that her failure to respond to the NPAA amounted to an acceptance of it. The District of Columbia Court of Appeals disagreed, citing basic contract law principles.
Miller’s argument started with the proposition that the NPAA was a contractual “offer,” that her silence was an acceptance of the proposed 15-day suspension, and that the MPD was barred from later terminating her. The Court disagreed: “That is not a reasonable characterization of the NPAA or of Miller’s response.

“First, the NPAA was not an offer under contract law. The NPAA gave Miller 15 days to submit a response and informed her that if she did not do so, ‘the charges and specification as outlined will be evaluated based upon the evidence of record.’ The NPAA thus made explicit that her failure to respond meant not that MPD would automatically suspend her for 15 days but rather that it would evaluate the charge based on the evidence.

“Second, even if the NPAA were (incorrectly) construed as an offer, Miller’s failure to respond would not constitute an acceptance. The general rule in contract law is that silence does not result in acceptance. Miller does not argue, much less demonstrate, that any exception to this general rule applies.

“Accordingly, MPD was not precluded from reconsidering its initial recommendation of suspension and deciding termination was warranted because of the seriousness of Miller’s misconduct.”

Sholanda Miller v. District of Columbia, 2020 WL 5415464 (D.C. 2020).

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