Price v. Dist. of Columbia Bd. of Ethics & Gov't Accountability, 16-AA-1230

212 A.3d 841

Gerren PRICE, Petitioner,

v.DISTRICT OF COLUMBIA BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY, Respondent.

No. 16-AA-1230

District of Columbia Court of Appeals.

Submitted October 24, 2018

Decided July 25, 2019

Erik J. Williams was on the brief for petitioner.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General, and Jason Lederstein, Assistant Attorney General, were on the brief, for respondent.

Before Fisher and Easterly, Associate Judges, and Washington, Senior Judge.

Dissenting opinion by Associate Judge Easterly at page 847.

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 this 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 D.C. Code § 1-1162.17 (2012 Repl.) provides that Ethics Board decisions shall be appealed to the Superior Court. Citing to past Superior Court decisions, Price contends that § 1-1162.17 is invalid because it violates the Home Rule Act, D.C. Code § 1-206.02(a)(4) (2012 Repl.), and this court has direct review jurisdiction under the District of Columbia Administrative Procedure Act, D.C. Code § 2-510(a) (2012 Repl.).

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, D.C. Code § 2-510(a) (2012 Repl.); (2) the Home Rule Act of 1973, which provides that the D.C. Council "shall have no authority" to enact laws "with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts)," D.C. Code § 1-206.02(a)(4) (2012 Repl.); and (3) the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011 ("Ethics Act"), which provides that Ethics Board decisions shall be appealed to the Superior Court, D.C. Code § 1-1162.17 (2012 Repl.). As a question of law involving statutory construction, our review is de novo. District of Columbia Pub. Schs. v. District of Columbia Dep't of Emp't Servs. , 123 A.3d 947, 949 (D.C. 2015).

1. Statutory Background

In 1968, Congress enacted the DCAPA, Pub. L. No. 90-614, 82 Stat. 1203 (1968) (codified as amended at D.C. Code § 2-501.01 et seq. (2012 Repl.)), to prescribe administrative procedures for the District of Columbia government. The DCAPA provides that generally "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of ... an agency in a contested case, is entitled to a judicial review ... upon filing in the District of Columbia Court of Appeals a written petition for review." D.C. Code § 2-510(a). It is well established that this provision vests the Court of Appeals with exclusive jurisdiction to hear an agency "contested case," and the Superior Court may not maintain concurrent jurisdiction. Euclid St., LLC v. District of Columbia Water & Sewer Auth. , 41 A.3d 453, 457 (D.C. 2012). The DCAPA defines "contested case" as "a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law ... or by constitutional right, to be determined after a hearing before the Mayor or before an agency." D.C. Code § 2-502(8) (2012 Repl.). We have held that a "contested case" refers to a "trial-type hearing" that is "adjudicatory" and "is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties." Euclid St. , 41 A.3d at 458 (citation omitted).

In 1973, Congress enacted the Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as amended at D.C. Code § 1-201.01 et seq. (2012 Repl.)), to give the D.C. Council "broad authority to legislate upon all rightful subjects of legislation within the District." Woodroof v. Cunningham , 147 A.3d 777, 782 (D.C. 2016) (citation and internal quotation marks omitted). However, Congress also limited the Council's ability to legislate on certain subjects, including the jurisdiction of the D.C. courts. Id. at 782-83. The Home Rule Act, as amended, provides: "The Council shall have no authority to ... [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts)." D.C. Code § 1-206.02(a)(4).

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. D.C. Code §§ 1-1162.02(a)(4), 1-1162.15(a)(1). The Ethics Act requires the Ethics Board to conduct an open and adversarial hearing in accordance with the DCAPA's procedural protections for contested cases in order to find a violation and levy a penalty. D.C. Code §§ 1-1162.14(a), (b), 1-1162.15(a)(1) ; 2-509. However, the Ethics Act provides that appeals of these decisions shall be made to the Superior Court. D.C. Code § 1-1162.17.

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.¹ Thus, Price contends that in accordance with the DCAPA, this court has direct and exclusive review jurisdiction over this case. Price relies on past Superior Court cases holding that the Court of Appeals has exclusive jurisdiction over Ethics Board decisions, and argues that § 1-1162.17, the provision directing appeals of Ethics Board decisions to the Superior Court, is invalid because it violates the Home Rule Act's prohibition of legislating with regard to the jurisdiction of the D.C. courts by the D.C. Council, D.C. Code § 1-206.02(a)(4). See Hicks v. District of Columbia Bd. of Ethics & Gov't Accountability , No. 2014 CA 1165 P, at 9, 12 (D.C. Super. Ct. Feb. 13, 2015); Walker v. District of Columbia , No. 2014 CA 918 B, at 4, 11-12 (D.C. Super. Ct. July 14, 2015).

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, D.C. Code § 1-1162.17. Thus, the Ethics Board now argues that the initial review of Ethics Board decisions is properly vested in the Superior Court. We agree with the Ethics Board's interpretation of the statute.

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 D.C. Code § 1-206.02(a)(4), provides that the Council lacks the authority to enact laws "with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts)." We have construed this provision narrowly to mean that the Council is precluded from amending Title 11 itself. Woodroof , 147 A.3d at 782, 784. Otherwise, the Council has "broad legislative power so as not to thwart the paramount purpose of the Home Rule Act, namely, to grant inhabitants of the District of Columbia powers of local self-government." Andrew v. American Imp. Ctr. , 110 A.3d 626, 629 (D.C. 2015) (quoting Bergman v. District of Columbia , 986 A.2d 1208, 1226 (D.C. 2010) ) (internal quotation marks and alterations omitted). In this case, the Council has not sought to amend "any provision of Title 11," but instead amended the contested case provision of the DCAPA codified in D.C. Code § 2-510(a). There is no provision in Title 11 itself relating to the contested case requirement. See D.C. Code § 11-722 (2012 Repl.).

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 , 436 A.2d 364, 367 (D.C. 1981). In reaching that conclusion, we found support for the Council's authority to do so in the Home Rule Act itself:

[T]he Home Rule A

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