Price v. District of Columbia Board of Ethics and Government Accountability
Price v. District of Columbia Board of Ethics and Government Accountability
Opinion of the Court
Washington, Senior Judge:
Before us is a petition for review of a final decision by the District of Columbia Board of Ethics and Government Accountability ("Ethics Board"), filed by Gerren Price. Price was found to have violated two sections of the District of Columbia Code of Conduct, 6-B DCMR §§ 1806.3 and 1806.6 (2014). Having concluded that the referenced petition was improperly filed in *843this court, we dismiss this petition for lack of jurisdiction. However, because the proper forum for review of his petition was unclear at the time of the filing, Price will have twenty days from the issuance date of this opinion to file a petition for review in the Superior Court.
I. Facts and Procedural History
This case stems from Price's role in the hiring of his sister-in-law as a Case Management Specialist for the District of Columbia's Summer Youth Employment Program in June 2015, while Price was Deputy Director of the Youth Workforce Development Department of the Office of Youth Programs for the Department of Employment Services. On November 29, 2016, following an evidentiary hearing, the Ethics Board found that Price violated the District's Code of Conduct §§ 1806.3 and 1806.6 by advancing his sister-in-law's resume and by failing to file a written recusal after becoming aware that she applied for the position. Because we do not reach the merits of this case, we dispense with a detailed examination of the facts. The Ethics Board ordered Price to pay a civil penalty of $1,500 for each violation, totaling $3,000, and to pay $26,182.10 in restitution to the District for violating § 1806.3. Price appealed the Ethics Board decision to this court, although
II. Discussion
The primary question before us is whether we have direct review jurisdiction over an Ethics Board contested case. This is an issue of first impression for this court, and the answer to this question turns largely on the interplay among provisions of three statutes: (1) the District of Columbia Administrative Procedure Act of 1968 ("DCAPA"), which vests this court with exclusive jurisdiction to review an agency's decision in a contested case,
1. Statutory Background
In 1968, Congress enacted the DCAPA, Pub. L. No. 90-614,
In 1973, Congress enacted the Home Rule Act, Pub. L. No. 93-198,
In 2012, the D.C. Council passed the Ethics Act, which established the Ethics Board and empowered it to adjudicate violations of the District's Code of Conduct and levy civil penalties.
2. Parties' Arguments
The parties agree that the proceeding before the Ethics Board was a "contested case" that would ordinarily be reviewed by this court.
However, the Ethics Board, changing the position it took in the above-referenced Superior Court cases, now argues that the Ethics Act is a valid legislative enactment that does not violate the Home Rule Act because the Ethics Act impliedly amended the DCAPA's definition of a contested case by excluding Ethics Board proceedings from that definition,
3. Analysis
a. The Home Rule Act does not prevent the D.C. Council from vesting the Superior Court with jurisdiction to review Ethics Board decisions.
The Home Rule Act, in
We have previously held that the D.C. Council has the authority to enact legislative exceptions to the DCAPA's definition of a contested case and direct the initial review of a proceeding that is functionally equivalent to a contested case to the Superior Court. District of Columbia v. Sullivan ,
[T]he Home Rule Act provides that the District of Columbia Court of Appeals has jurisdiction to review orders and decisions of agencies, but only "to the extent provided by law." [D.C. Code § 1-204.31 (a) ]. Thus, by amending the "law," the Council may remove certain administrative cases from the direct review jurisdiction of this court. In addition, the Home Rule Act states that the District of Columbia courts shall have jurisdiction over any other matters granted to them "by other provisions of law."Id. Again, by amending the law, the council may add cases to the jurisdiction of the Superior Court ....
The dissent contends that Sullivan directly conflicts with our earlier decision in Capitol Hill Restoration Society, Inc. v. Moore ,
b. The Ethics Act impliedly amended the DCAPA's definition of a contested case to exclude Ethics Board proceedings from the definition.
Having concluded that the Ethics Act,
Legislative intent to amend the DCAPA is present if the legislature specifically vests review of an agency decision in a contested case in the Superior Court, even if the statute's judicial review provision does not mention the DCAPA. See
Here, we similarly find sufficiently clear legislative intent to create an exception to the DCAPA's definition of a contested case. The Ethics Act plainly directs review of Ethics Board decisions to the Superior Court.
Additionally, the Ethics Act's legislative history supports our conclusion that the Council intended to amend the DCAPA because an earlier iteration of the Ethics Act had directed appeals of Ethics Board decisions to this court. D.C. Council, Report on Bill 19-511 at 270 (Dec. 5, 2011) ("Appeals to any order, or fine made by the Board in accordance with this act shall be made to the D.C. Court of Appeals."). Later, the Council revised this language and provided for judicial review in the Superior Court, which ultimately became the law. While we do not know why the Council changed the judicial review provision in its drafting process, this sequence of events strongly supports the conclusion that vesting the Superior Court with initial jurisdiction to review Ethics Board decisions was a conscious and intentional decision by the D.C. Council.
Thus, for the foregoing reasons, we dismiss Price's petition for review as having been filed in the wrong court. However, we recognize that prior decisions of the Superior Court reasonably led Price to file his petition in this court. Because it is not clear that Price's filing in this court is sufficient to protect his appeal from attack as being untimely, and even though we are confident that Price's failure to timely file a petition for review in the Superior Court would be found to satisfy the requirements for excusable neglect pursuant to Super. Ct. Civ. R. 6 (b)(1)(B), we nonetheless order, consistent with Ethics Board regulations, 3 DCMR § 5404.1 (2013), that petitioner has twenty days from the issuance date of this opinion to file a petition for review of the Ethics Board decision in the Superior Court.
So ordered.
We agree that Ethics Board proceedings such as this one meet the definition of a contested case. Ethics Board proceedings are typically adjudicative because they determine whether an individual has violated the District's Code of Conduct and should be subject to a penalty.
While it is not clear why the Council decided to implicitly amend the DCAPA to make Ethics Board decisions reviewable by the Superior Court, it certainly would not be unreasonable for it to have considered it wise to add an independent layer of review to the process to better insulate the Board from charges of political cronyism or other political malfeasance.
Dissenting Opinion
"The parties agree that the proceeding before the Ethics Board was a 'contested case.' " Ante at 844. The District of Columbia Administrative Procedure Act (DCAPA) provides that "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case , is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review."
*848Against this statutory backdrop, I cannot agree that the Council had the authority to enact
The Majority Opinion cites Woodroof v. Cunningham ,
The Majority Opinion relies on District of Columbia v. Sullivan ,
Granted, in Capitol Hill Restoration Society , the Council had attempted to expand our jurisdiction to noncontested cases, whereas in this case, the Council has attempted to divert a set of contested cases to Superior Court. But either way, the scope of this court's direct review jurisdiction of agency cases is affected, in contravention of the Home Rule Act. The point is not, as the Majority Opinion indicates, that there is no harm (and thus no foul) if the Council simply inserts "an additional layer of review" preceding review by this court, ante at 846, because in the broad sense this court's jurisdiction remains the same: jurisdiction will lie in this court to review any decision emerging from Superior Court. That was also true in Capitol Hill Restoration Society . There, the Council's enactment did not expand our jurisdiction in the broad sense, because this court would ultimately have had the power to review any decision of the Superior Court. The Council simply attempted to cut out the middleman, i.e., the Superior Court, by sending certain noncontested cases directly to this court for review. See
The Majority Opinion also seeks to distinguish Capitol Hill Restoration Society because, in that case, the Council sought to direct uncontested cases, with undeveloped records, to this court, whereas here, "we are fully capable of reviewing an agency contested case that has been reviewed by the Superior Court in the first instance." Ante at 846. But the Majority Opinion fails to explain why the Council has the power to inject this extra layer of review given that Congress determined in the DCAPA that "contested cases" are ripe for review by this court and gave this court exclusive jurisdiction to hear this category of agency decisions.
As Capitol Hill Restoration Society predates Sullivan , it is controlling, see M.A.P. v. Ryan ,
For these reasons, I respectfully dissent.
District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198,
Similarly, this court's recognition of the Council's "broad legislative power," ante at 845 (quoting Andrew ,
Sullivan relied on Columbia Realty Venture v. District of Columbia Hous. Rent Comm'n ,
I am also skeptical that the Council intended to evade these strictures with the enactment of the Ethics Act. Although the statute expressly directs that the Ethics Board employ contested case procedures and elsewhere provides that "appeals" of Ethics Board orders "shall be made to the Superior Court," ante at 846, the statute never connects the dots, and it seems just as likely that the Council unwittingly enacted legislation in contravention of the DCAPA. (The legislative history does not negate this possibility).
Reference
- Full Case Name
- Gerren PRICE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY, Respondent.
- Cited By
- 4 cases
- Status
- Published