Appellee Willie L. Davis was terminated from the Fire Department's Emergency Ambulance Bureau for insubordination based on his use of marijuana while off-duty in violation of Fire Department orders. The Office of Employee Appeals (OEA) sustained the termination. Mr. Davis petitioned the trial court for review and the trial court concluded that Mr. Davis was not insubordinate within the meaning of the adverse action section of the Comprehensive Merit Personnel Act (CMPA) D.C. Code SEC. 1-617.1 (d) (1992 Repl.). We reverse because (1) the OEA decision was based on substantial evidence and (2) the agency's construction of the insubordination provision of D.C. Code SEC. 1-617.1 (d)(5) required deference because it was reasonable and not plainly erroneous or inconsistent with the CMPA.

FACTUAL SUMMARY

At the time of his termination Mr. Davis was a permanent employee in the Career Service and had been employed as an emergency ambulance technician by the Emergency Ambulance Bureau (EAB) of the District's Fire Department for six years. He failed a departmental drug test on January 26 1988 when his urine sample tested positive for marijuana. He was temporarily removed from his position given administrative duties which did not require contact with the public and sent to a mandatory drug rehabilitation program.

Mr. Davis returned to his regular duties on February 26 1988. He was required to submit to periodic drug testing. On April 26 1988 he again tested positive for marijuana use. On May 10 1988 the Director of the EAB John M. Cavenagh sent Mr. Davis written notice of the EAB's intent to terminate his employment for cause: "Insubordination; to wit: Failure or refusal to comply with written instructions or direct orders by a superior." The notice identified two applicable Fire Department orders: (1) "August 21 1986 General Order No. 14 New F.D. Bulletin No. 65 Substance Abuse Policy"; and (2) "October 14 1987 Special Order No. 50 Use of Intoxicant or Illegal Substances." The charges against Mr. Davis were detailed as follows:

On May 4 1988 you were placed on administrative leave with pay until further notice by your supervisor Edward Foye Assistant Director of Operations. On April 26 1988 you visited the Police and Fire Clinic and provided a urine specimen (881336) which was analyzed for drug content. On May 4 1988 it was confirmed by CompuChem Laboratories Inc. that the sample was positive for the drug cannabinoids.

You failed to follow D.C. Fire Department's policy and orders for substance abuse testing particularly in view of the fact that you tested positive for cannabinoids. On December 4 1987 you received the substance abuse policy from the Fire Chief T.R. Coleman. You knew or should have known the Fire Department's intent to prohibit the substance abuse by its employees in the EAB.

According to the notice Mr. Cavenagh "determined that [Mr. Davis'] conduct constitutes an immediate hazard to the Department [Mr. Davis] other employees and [to] the detriment of the public's health safety and welfare."

Because Mr. Davis took issue with the proposed action the Department appointed a disinterested designee pursuant to 16 DPM SEC. 1613 34 D.C. Reg. 1857 (1987). The disinterested designee Ms. Joan E. Mendelson a Fire Department employee investigated the matter heard a presentation by Mr. Davis and spoke with others in the Department. According to Ms. Mendelson's May 16 1988 written summary of her investigation Mr. Davis not only failed drug tests on January 26 1988 and April 26 1988 but also failed an earlier test on June 11 1987. As a result of the earlier failure he was placed in a substance abuse program and did not return to full duty until December 18 1987. Ms. Mendelson described Mr. Davis' case as "extremely unfortunate" because "Mr. Davis has been with the Department for six (6) years and has been an excellent employee." Nonetheless she "concurred with the proposal to terminate Mr. Davis from employment with the Department."

Mr. Davis was terminated on May 23 1988 for "failure to comply with F.D. General Order No. 14 and F.D. Special Order No. 50." *fn1 He appealed his dismissal to the OEA on June 2 1988. OEA considered four arguments raised by Mr. Davis: (1) he did not use marijuana on the job and hence the EAB could not discipline him; (2) the EAB did not give him adequate notice of the action against him; (3) the drug test results were unreliable not properly authenticated and therefore could not serve as evidence for his removal; and (4) EAB's drug testing program is unconstitutional. *fn2

During the hearing before an administrative Court on November 6 and 7 1989 five witnesses testified for the EAB: Mr. Cavenagh who holds a physician associate degree in medicine and who addressed the disciplinary action taken against Mr. Davis and the reasons for that action; Mr. Tony McMillian a compliance officer with EAB who testified concerning Mr. Davis' drug tests; Mr. Dean Davis an employee of the Police and Fire Clinic who detailed the processing of drug test samples; Mr. Gregory Thompson also an employee of the Police and Fire Clinic who outlined procedures for obtaining an urine sample; and Dr. Mary Jo Fife a senior technical analyst at Compu Chem Laboratories who discussed the laboratory's procedures for testing an urine specimen for drug content. Mr. Davis did not testify and presented no witnesses.

When asked whether he had "an opinion with regard to their being an inconsistency between the illegal use of drugs by a person employed by the Emergency Ambulance Bureau and that person's employment as an Emergency Ambulance Technician " Mr. Cavenagh responded:

First on the patient care level . . . among the responsibilities of an emergency medical technician is the ability to collect information and assemble that information and interpret the meaning of that information. Then based on that interpretation to provide medical treatment. There are certain clinical conditions that would appear similar to a lay person that require discrimination and differentiation and I'll give you an example of troubled breathing. In some clinical conditions that are manifested by troubled breathing it's required or indicated to administer high levels of oxygen high concentrations of oxygen. In certain other conditions that are manifested as trouble or difficulty breathing low concentrations of oxygen should be given. In fact high concentrations of oxygen if administered to some patients can be dangerous or life-threatening to those patients. So one who may be impaired for whatever reason might not use proper judgment in that situation and could injure a patient.

During cross-examination Mr. Cavenagh was asked "how long a person would be impaired for marijuana use"? He replied:

There are a variety of durations of affects lasting from hours to days to weeks. . . . One is called A-motivational syndrome. . . . It's characterized by lethargy malaise loss of interest in activities loss of ability to concentrate. . . . That can last for weeks or months.

Mr. Cavenagh also stated that "confusion disorientation" and the duration of these states would "[vary] according to the level the amount the dose [and] the length to which an individual is exposed to a given dose."

The administrative Court made findings of fact regarding Mr. Davis' drug tests and his participation in mandatory drug rehabilitation programs as set forth above. She also made detailed findings concerning the EAB's drug testing program and the handling of Mr. Davis' urine samples. The administrative law Court concluded that the EAB drug testing did not violate Mr. Davis' constitutional rights; he received appropriate notice of his proposed termination; no problems existed in the chain of custody regarding Mr. Davis' urine samples; and the EAB's testing procedures were not unfair and the quantitative level used to determine illegal drug use was appropriate.

The administrative Court focused on Mr. Davis' argument that a Career Service employee can only be terminated for cause and that D.C. Code SEC. 1-617.1 (d) can only be interpreted to apply to on-duty drug use as opposed to off-duty drug use because D.C. Code SEC. 1-617.1 (d)(8) specifies as a cause for termination "on-duty use of drugs not prescribed and/or illegally obtained " but does not mention off-duty use. Mr. Davis argued that the EAB's use of D.C. Code SEC. 1-617.1 (d)(5) "insubordination " as the cause of his termination constituted an attempt to circumvent D.C. Code SEC. 1-617.1 (d)(8). The administrative Court distinguished District of Columbia v. Teamsters Union Local No. 246 554 A.2d 319 (D.C. 1989) on which Mr. Davis relied on the ground that there "insubordination" had not been charged as a basis of termination for cause. In reaching her conclusion the administrative Court cited "rules and regulations that allow an agency to take corrective or adverse action involving off-duty conduct for [various reasons including] insubordination provided there is a showing that the employee's conduct was incompatible with the nature of his or her employment or had an adverse effect causing discredit to his or her employment agency or the District government." *fn3 She determined that "off-duty use of drugs is incompatible with the nature of [Mr. Davis'] job . . . [;] [he] used marijuana violating [the Department's] written orders . . .; [and] that such conduct is insubordinate." Because "[the EAB's] penalty cannot be reversed if it is within the applicable range of penalties [set forth in the regulations] and is not so harsh as to amount to an abuse of discretion " the administrative Court issued a recommended initial decision which upheld Mr. Davis' termination.

A three member reviewing panel of the OEA adopted the recommended initial decision of the administrative Court on March 25 1993. On May 27 1994 the full OEA Board issued an opinion and order responding to Mr. Davis' petition for review. In upholding Mr. Davis' termination the full OEA Board stated in part:

Agency's drug policy is not designed simply to affect the conduct of its employees in their off-duty hours. In our view Agency's drug policy is designed to ensure that any off-duty use of drugs by its employees does not impair their ability to safely perform their jobs. We do not find this policy inconsistent with the intent of the legislature.

Agency has determined that its employees cannot safely provide emergency medical services unless they are drug free. Agency considers its employees drug free if the level of the THC Acid in their systems is below 10 NG/ml. Although [Mr. Davis] was aware that Agency does not permit its employees to perform their duties unless they are drug free he nevertheless reported to work with drugs in his system. [Mr. Davis'] refusal to abide by Agency's drug abuse policies was insubordinate and constituted an independent basis for discipline under D.C. Code SEC. 1-617.1 (d)(5). Therefore we see no error in the [administrative Court's] decision to affirm Agency's action.

Mr. Davis petitioned the trial court for review of the decision of the full OEA Board on June 23 1994. He contended that: (1) under the principle of expression units est. exclusion alters the specific inclusion of on-duty drug use as a factor supporting termination for cause excluded off-duty drug use as a basis of termination; and (2) the Department could not circumvent this principle by relying on "the catch-all clause " "insubordination " as a ground for his termination. The District argued that under the controlling standard of review OEA's decision was supported by substantial evidence and was not clearly erroneous as a matter of law.

The trial Court concluded that "while OEA's factual determinations are supported by substantial evidence of record its decision affirming the action of the Fire Department constitutes an error of law." The trial court deemed the term "insubordination" to "import a wilful or intentional disregard of the lawful and reasonable instructions of the employer " and concluded that because Mr. Davis did not refuse "to go into a drug treatment program after being ordered to do so " he was not insubordinate. Moreover said the trial court "that Davis subsequently had a test which showed a small amount of marijuana in his system is certainly not sufficient to prove insubordination." The trial court went on to note that "the addiction to drugs may be so strong as to amount to a disease and the power of the individual to cease drug use through a shear act of will power may be minimal or virtually non-existent." Finally the trial court stated:

Davis' presumptive use of drugs following his treatment could possibly reflect a wilful and intentional refusal to obey the department's order that he refrain from drug use or it could reflect that he was nearly powerless to control a long-term long-established drug addiction. In this case there is no substantial evidence of record to show that Davis' positive drug test following the treatment program was an act of wilful and defiant disobedience of departmental orders. Thus the OEA erred as a matter of law in holding that the mere occurrence of a positive drug test constitutes evidence of insubordination.

The District filed a timely appeal. We reverse.

ANALYSIS

In considering the trial court's review of an OEA decision "we conduct the identical review that we would undertake if this appeal had been heard initially in this court." Kegley v. District of Columbia 440 A.2d 1013 1019 (D.C. 1982). An agency's findings of fact and conclusions of law must be affirmed if they are supported by substantial evidence. "We will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record." Oubre v. District of Columbia Dep't of Employment Servs. 630 A.2d 699 702 (D.C. 1993). Although we are vested "with the final authority on issues of statutory construction " Harris v. District of Columbia Office of Worker's Compensation (DOES) 660 A.2d 404 407 (D.C. 1995) "we must defer to an agency's interpretation of the statute which it administers . . . so long as that interpretation is reasonable and consistent with the statutory language. The agency's interpretation therefore is controlling unless it is plainly erroneous or inconsistent with the statute." Wilson v. District of Columbia No. 95-CV-50 slip op. at 2 (D.C. March 29 1996) (quoting Lenkin Co. Management v. District of Columbia Retail Housing Comm'n 642 A.2d 1282 1285 (D.C. 1994)). We refrain from substituting our judgment "in areas of expertise reserved for the agency." Barry v. Wilson 448 A.2d 244 246 (D.C. 1982).

The trial court acknowledged that the "OEA's factual determinations are supported by substantial evidence of record." It reversed the OEA however apparently because it concluded "there is no substantial evidence of record to show that Davis' positive drug test following the treatment program was an act of wilful and defiant disobedience of departmental orders."

The District argues that the trial court erred because OEA's interpretation of the CMPA and implementing personnel rules and regulations is entitled to deference since it is not erroneous as a matter of law. Furthermore the District contends that the decision in District of Columbia Dep't of Corrections v. Teamsters Union Local No. 246 supra is distinguishable. In response Mr. Davis asserts that the trial court correctly held that his use of a small quantity of marijuana did not constitute insubordination; OEA's decision is not entitled to deference because it is "based upon misinterpretations of statutory terms outside the scope of their expertise"; the principle of expression units est. exclusion alters supports the trial court's judgment; and the "catch-all phrase " "insubordination" does not authorize the Department "to fire an employee for off-duty drug use where the Comprehensive Merit Personnel Act permits adverse action only for on-duty drug use."

We conclude first that Teamsters does not control the outcome of this case. In Teamsters we reversed an adverse action based upon the employee's "conviction of simple assault." Although the employee was charged with a felony (assault with a dangerous weapon) he was convicted of a misdemeanor as a result of his plea of guilty to simple assault. The officer's conviction for assault was based on an altercation over $20 and a bag of heroin. His termination notice only mentioned the assault conviction not insubordination. However during an arbitration hearing his superior "focused on . . . [his] off-duty fraternization with an ex-inmate which they said could be 'grounds for insubordination if connected with some wrongdoing.'" Id. at 321. We applied the principle of expression units est. exclusion alters in Teamsters because (1) "conviction of a misdemeanor assault" was not one of the causes for termination listed in D.C. Code SEC. 1-617.1 (d) but the list included "conviction of a felony"; and (2) there was no "catch-all provision [in D.C. Code SEC. 1-617.1 (d)] permitting adverse actions for any other reason." Id. at 324. With respect to the Department of Correction's attempt to rely on insubordination as a basis for the adverse action we "found no evidence that [the employee] was guilty of any insubordination prior to the . . . incident [that led to his arrest.]" Id. at 325. Moreover his termination notice letter did not contain a charge of insubordination. Nor did the Department of Corrections cite or rely on implementing rules and regulations which define "insubordination." Here Mr. Davis' termination notice clearly specified "insubordination" as a ground for his removal; "insubordination" is one of the statutory causes for termination of a Career Service employee; and implementing regulations cited by the OEA define insubordination. For these reasons Teamsters does not support Mr. Davis' arguments.

We must determine next whether D.C. Code SEC. 1-617.1 (d) permits a Career Service employee to be terminated for cause due to insubordination. Clearly it does. D.C. Code SEC. 1-617.1 (d)(5) authorizes termination of a Career Service employee for "insubordination." The fact that D.C. Code SEC. 1-617.1 (d)(8) empowers an agency to terminate a Career Service employee for "on-duty use of drugs not prescribed and/or obtained illegally" does not bar termination on another of the listed grounds. There is nothing in the CMPA to suggest even remotely that the Council of the District of Columbia intended to preclude termination for insubordination based on an employee's failure to follow the directives of an agency's drug policy solely because use of the illegal drugs took place during an off-duty status.

Since "insubordination" clearly is a ground for termination for cause under the CMPA we turn next to the meaning of that term. The trial court consulted and relied on Black's Law Dictionary (5th ed. 1979) to define the term as a "wilful or intentional disregard of the lawful and reasonable instructions of the employer." However the definition of "insubordination" appears in D.C. Office of Personnel Rule SEC. 1618.1: "failure or refusal to comply with written instructions or direct orders by a superior." 34 D.C. Reg. 1865 (1987). Viewing the evidence in the light most favorable to the Fire Department as we must we conclude that there is ample evidence in the record of Davis' failure to comply with direct written orders not to use drugs while off-duty. Moreover even if we focus on "refusal" as a proper definition of "insubordination " nothing in the record suggests that Davis' use of marijuana was inadvertent. Hence the OEA rationally found that Davis was insubordinate when he refused to obey the lawful directives of the Fire Department.

We turn next to the question of whether Mr. Davis disobeyed Fire Department orders. Mr. Davis was terminated for "failure to comply with F.D. General Order No. 14 and F.D. Special Order No. 50." Special Order No. 50 issued on October 14 1987 prior to Mr. Davis' May 1988 termination provided in pertinent part: "Effective immediately upon receipt of this Special Order Departmental members shall not . . . use illegal substances in any form while on or off duty . . .or use any intoxicant or illegal substance likely to affect their full performance of duty." This constituted a direct order not to use illegal substances while off-duty or intoxicant or illegal substances likely to impair on-duty performance; no exceptions to the rule were stated in the order. General Order No. 14 published on August 21 1986 not only specified that the Fire Department would not accept use of illegal narcotics or a controlled substance because of a need to protect the public and members of the Fire Department but also that "the confirmed finding of an illicit narcotic or controlled substance in the urine of a member . . . will result in disciplinary action." When his urine tested positive for marijuana use on January 26 1988 and April 26 1988 Mr. Davis disobeyed both the General and Special Orders of the Fire Department.

We consider now whether regulations implementing the CMPA authorize Mr. Davis' termination for insubordination. *fn4 The requirements for termination on the ground of "insubordination" are set forth in regulations implementing the CMPA. The trial court never mentioned OEA's reliance on these regulations in reaching its decision that Mr. Davis could be terminated for cause under the CMPA. District of Columbia Office of Personnel Rule SEC. 1603.1 (e) identifies "insubordination" as a cause for an employee's termination and SEC. 1603.3 provides:

Whenever a corrective or adverse action is proposed involving off-duty conduct under . . . SEC. 1603.1 (e) . . . there must be a showing that the employee's conduct was incompatible with the nature of his or her employment or had an adverse effect causing discredit to his or her employment agency or the District government.

34 D.C. Reg. 1851 (1987). Under the table of appropriate penalties set forth in D.C. Office of Personnel Rule SEC. 1618.1 removal was an appropriate penalty. It remains to be determined whether the EAB met its burden of proof in showing that Mr. Davis' off-duty use of marijuana "was incompatible with the nature of his . . . employment " within the meaning of SEC. 1603.3 of the Office of Personnel rules.

The OEA administrative Court concluded that "off-duty use of drugs is incompatible with the nature of [Mr. Davis'] job " and the full OEA Board stated in its decision "Agency has determined that its employees cannot safely provide emergency medical services unless they are drug free." These conclusions were supported by substantial evidence in the record. Mr. Cavenagh the Director of the EAB who holds a physician associate degree in medicine testified that impairment from marijuana use can last "from hours to days to weeks." He discussed the "A-motivational syndrome" that manifests impairment from marijuana use. This syndrome is characterized by "lethargy malaise loss of interest in activities loss of ability to concentrate" and may last "for weeks or months." Mr. Cavenagh cited "troubled breathing cases" as an example of a difficulty that could confront a marijuana-impaired emergency ambulance technician and compromise treatment. Because some of these troubled breathing cases require low concentrations of oxygen and others require high concentrations the technician must be alert not lethargic. Thus an emergency ambulance technician suffering from loss of ability to concentrate or loss of interest in activities may well endanger persons suffering from troubled breathing. In short there was substantial evidence in the record to support the OEA's conclusion that Mr. Davis' off-duty use of marijuana in violation of Fire Department orders was "incompatible with the nature of his or her employment." In ignoring the substantial record evidence on this point the trial court erred.

Finally the trial court erred in focusing on matters never raised in the OEA proceeding by Mr. Davis. He never challenged the Fire Department's determination which OEA adopted that employees are "drug free if the level of the THC Acid in their systems is below 10 NG/ml." Nor did he argue or attempt to prove that the amount of marijuana which he used did not constitute insubordination. Moreover he did not contend that he was addicted to marijuana that his addiction amounted to a disease or that he had minimal or no power to stop using the drug; or that his entrance into a drug program proved he was not insubordinate. Indeed Mr. Davis presented no witnesses and no evidence during the OEA hearing before the administrative Court. Consequently there is no evidence in the record to support the trial court's conclusions.

For the foregoing reasons we reverse the judgment of the trial court and hold that OEA's decision upholding the Fire Department's termination of Mr. Davis from his employment as an emergency ambulance technician was based on substantial evidence and was not clearly erroneous as a matter of law.