Price v. Bd. of Ethics and Gov't Accountability

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-CV-527
GERREN PRICE, APPELLANT,
V.
BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CAP5346-19)
(Hon. Shana Frost Matini, Associate Judge)
(Submitted October 5, 2021 Decided November 10, 2022)
Erik James Williams for appellant.
Karl A. Racine, Attorney General for the District of Columbia, with whom
Loren L. AliKhan, Solicitor General (at the time of submission), Caroline S. Van
Zile, Principal Deputy Solicitor General (at the time of submission), Carl J.
Schifferle, Deputy Solicitor General, and Stacy L. Anderson, Senior Assistant
Attorney General, were on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.
BLACKBURNE-RIGSBY, Chief Judge: Appellant Gerren Price appeals the trial
court’s order affirming the Board of Ethics and Government Accountability’s
(“BEGA”) determination that Mr. Price violated the District’s Code of Conduct
2
(“Code of Conduct”). BEGA determined that as a supervisory public official for the
District of Columbia Mr. Price improperly “advanced” the resume of his sister-in-
law for a position within his agency and failed to submit a written notice of recusal.
See 6-B D.C.M.R. § 1806.3 (2014); 6-B D.C.M.R. § 1806.6 (2014). 1 Mr. Price
argues in this appeal that 1) BEGA’s decision lacked evidentiary support; 2) BEGA
incorrectly interpreted the term “advance” in its regulations; and 3) his actions did
not amount to a “hiring decision.” We agree and reverse the trial court’s order and
conclude that Mr. Price’s conduct did not fall within a reasonable definition of
“advance” and “hiring decision” under the regulation because his actions were
ministerial and non-preferential and no one involved in the actual hiring decision
was aware of Mr. Price’s relationship to the applicant. We further vacate the
associated fine totaling $1,500 and restitution in the amount of $26,182.10 assessed
by BEGA.
1
6-B D.C.M.R. § 1806 was updated with no substantive changes, effective
January 31, 2020. We will refer to the numeration found in the 2014 version of 6-B
D.C.M.R. § 1806, as the 2020 regulation appears to contain a typo, where § 1806.1
is repeated.
3
I. Factual & Procedural Background
At the time of the alleged violations, Mr. Price was the Deputy Director of the
Office of Youth Programs (“OYP”) for the District of Columbia Department of
Employment Services (“DOES”). OYP is responsible for administering the District
of Columbia’s Summer Youth Employment Program (“SYEP”). In early 2015,
SYEP was expanded to include a new age group of young adults between the ages
of twenty-two and twenty-four. The expansion required OYP to hire temporary case
managers on short notice. To facilitate the urgent hiring, a DOES Human Resources
Manager solicited Mr. Price’s assistance in advertising and filling the new positions.
On June 22, 2015, Mr. Price distributed an email to all OYP staff, with the
subject line “URGENT – Job Opportunity.” The email informed recipients that
DOES was hiring case managers and provided the requirements for the applicants.
In addition, all resumes were to be emailed to Mr. Price before 5:00 p.m. the next
day, per the direction of the DOES Human Resources Manager. Approximately
three hours after Mr. Price sent the email, Desiree Ward, Mr. Price’s sister-in-law,
responded with the subject line “Desiree Ward-Resume,” and included as an
attachment her resume. Mr. Price responded to the email, “Thank you, Ms. Ward. I
4
will forward your resume to our HR Department for consideration. You will hear
from us soon.”
The following day, the Human Resources Manager emailed Mr. Price asking
him to “[p]lease send [] your employees ASAP,” because the manager needed to
submit finalized packets to the District’s Department of Human Resources the
following day. Mr. Price printed all fifty to sixty resumes he received, including Ms.
Ward’s resume, and gave them to his team to review for selection of ten to fifteen
applicants. Mr. Price did not inform anyone that Ms. Ward was a relative. His team
selected between ten and fifteen resumes, which included Ms. Ward’s resume, and
a member of his team then passed the resumes on to the Human Resources Manager.
Human Resources then began the hiring process. The Human Resources
Manager contacted Ms. Ward via email, sending her an application package to be
completed and returned. Ms. Ward returned her completed application, listing Mr.
Price as her brother-in-law. Ms. Ward was offered the position, accepted it, and
began working as a case manager on July 6, 2015.
In November of 2015, BEGA initiated an investigation into Mr. Price after
being notified via an anonymous email that he and Ms. Ward were relatives.
5
Following the investigation, Mr. Price was formally charged with three counts of
violating the District’s Code of Conduct: (1) Directly or Indirectly Making a Hiring
Decision Regarding a Position within his Own Agency with Respect to a Relative
(advancing sister-in-law’s resume through hiring process), 6-B D.C.M.R. § 1806.3;
(2) Directly or Indirectly Making a Hiring Decision Regarding a Position within his
Own Agency with Respect to a Relative (requesting an extension to the temporary
term of employment for his sister-in-law and four other case managers, and signing
off on recruitment of the five case managers to be promoted), 2 6-B D.C.M.R. §
1806.3; and (3) Failing to File a Written Recusal (when his sister-in-law’s
application first reached his desk), 6-B D.C.M.R. § 1806.6.
In relevant part, 6-B D.C.M.R. § 1806.3 states:
A public official may not directly or indirectly make a
hiring decision regarding a position within his or her own
agency with respect to a relative. Specifically, a public
official may not appoint, employ, promote, evaluate,
interview, or advance (or advocate for such actions) any
individual who is a relative in an agency in which the
public official serves or exercises jurisdiction or control.
2
This “hiring decision” was related to a form requesting personnel action,
filed on November 7, 2015, seeking an eight-month extension of Ms. Ward’s term
of service. Mr. Price’s name appeared on the form as the “Requested By”; however,
the form was signed by OYP’s Associate Director and not Mr. Price.
6
(emphasis added). Regarding the reporting requirement, 6-B D.C.M.R. § 1806.6
states, “[w]hen the agency contemplates making a hiring decision concerning a
relative of a public official within the same agency, the public official must file a
written recusal, which shall be included in the relative’s official personnel file along
with the subject personnel action.”
BEGA held a two-day evidentiary hearing and following the hearing issued a
written Final Decision determining that violation one related to 6-B D.C.M.R. §
1806.3 and violation three regarding 6-B D.C.M.R. § 1806.6 were meritorious. 3
With respect to violation one, BEGA concluded that Mr. Price, a public official,
directly and indirectly participated in the hiring of his sister-in-law by “advancing”
her resume through the hiring process for a position as a case manager in his agency
in violation of 6-B D.C.M.R. § 1806.3. BEGA acknowledged that the term
“advance” in 6-B D.C.M.R. § 1806.3 was not defined in the regulation. BEGA
therefore applied the definition of “advance” found in the Fifth Edition of Black’s
Law Dictionary (1979): “to move something forward in position, time or place.”
Further, BEGA determined that Mr. Price both intended to advance Ms. Ward’s
3
With regard to violation two, BEGA determined that Mr. Price did not make
the decision to extend the term for temporary employees. See 6-B D.C.M.R. §
1806.3. The decision was made by officials in the Executive Office of the Mayor.
7
resume by telling her that he would forward it on to human resources and followed
through with advancing her resume when he included her resume with the 50-60
resumes given to his team. Finally, with respect to violation three, BEGA concluded
that Mr. Price failed to file a written recusal while participating in the hiring process
of a family member. As a result of its decision, BEGA ordered Mr. Price to pay a
civil penalty of $1,500 for violation one, restitution in the amount of $26,182.10 for
violation one, and a civil penalty of $1,500 for violation three.
Mr. Price filed a Petition for Review of BEGA’s Final Decision in Superior
Court 4 where he asserted that BEGA lacked substantial evidence supporting the
findings that Mr. Price directly or indirectly made a hiring decision regarding a
relative. Mr. Price’s challenge focused on BEGA’s interpretation of 6-B D.C.M.R.
§ 1806.3, that receiving Ms. Ward’s resume and then passing it along “advanced”
his sister-in-law’s resume through the hiring process, and amounted to a “hiring
decision” in violation of the regulation. Mr. Price contended that BEGA
misinterpreted the meaning of “advanced” and “hiring decision,” within the context
of the statute and regulations. The Superior Court affirmed BEGA’s Final Decision,
and determined that “BEGA applied the ordinary and plain meaning to the terms
D.C. Code § 1-1162.17 provides that appeals of any order from BEGA “shall
4
be made to the Superior Court of the District of Columbia.”
8
‘hiring decision’ and ‘advancement,’” and concluded that BEGA’s interpretation of
the terminology was “neither wrong nor plainly inconsistent with legislative intent.”
The trial court concluded that although Mr. Price did not make the “ultimate
decision” to hire, he advanced Ms. Ward’s resume to be considered for a position
within his agency. This appeal followed.
II. Discussion
In his appeal before this court, Mr. Price contends that the trial court erred in
affirming BEGA’s Final Decision. He argues that BEGA’s findings that he made a
nepotistic hiring decision for a position within the agency at which he was employed
was not supported by substantial evidence. Mr. Price focuses his arguments on: (1)
the definition BEGA applied to the term “advance,” in 6-B D.C.M.R. § 1806.2; and
(2) whether his actions amounted to a “hiring decision,” as defined in 6-B D.C.M.R.
§ 1806.1(b). 5 In response, BEGA asserts that we should defer to the definition of
5
On appeal, Mr. Price only asks the court to consider “[w]hether the lower
court erred by ruling that there was substantial evidence to support the Board of
Ethics and Government Responsibility’s findings of fact as to Count I of the
Agency’s Notice of Violation.” Accordingly, we limit our discussion to Count I and
do not address Count III, which is not raised in this appeal.
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“advance” it applied to the regulation and that under that definition, Mr. Price’s
actions amounted to advancing Ms. Ward as part of a hiring decision.
“We review a Superior Court ruling [of] an agency decision in the same
fashion in which we would review an agency decision if it were appealable directly
to us.” Sparrow v. D.C. Office of Human Rights, 74 A.3d 698, 703 (D.C. 2013)
(quoting D.C. Off. of Hum. Rts. v. D.C. Dep’t of Corr., 40 A.3d 917, 923 (D.C.
2012)). We “will affirm the agency’s ruling unless it is arbitrary, capricious, or
otherwise an abuse of discretion and not in accordance with the law.” McCamey v.
D.C. Dep’t of Emp. Servs., 947 A.2d 1191, 1196 (D.C. 2008) (en banc); see Reyes
v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C. 2012).
We first determine whether BEGA properly interpreted 6-B D.C.M.R. §
1806.2(b), specifically, whether it was reasonable and consistent with the statutory
language to define the term “advance” using a dictionary meaning in ultimately
interpreting the term “hiring decision.” This court has the final review of issues of
statutory construction and reviews such questions of law de novo. However, we
give deference to an agency’s interpretation of its governing statute and regulation,
“unless its interpretation is unreasonable or inconsistent with the statutory language
or purpose.” D.C. Office of Human Rights, 40 A.3d at 923 (citations omitted).
10
In its Final Decision, BEGA acknowledged that “advance” was not defined in
the regulations, so it applied the Black’s Law Dictionary definition, meaning “to
move something forward in position, time or place.” Advance, BLACK’S LAW
DICTIONARY (5th ed. 1979). Appellant argues that “advance” should be more
specifically defined as “to raise to a higher rank,” and refers to the Merriam-Webster
dictionary. Advance, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/advance; https://perma.cc/95CA-RZXR (last visited June 1,
2022).
The regulations which govern BEGA’s interpretation of the statute it
administers and enforces are found in 6-B D.C.M.R. § 1806, which provide for the
“Restrictions on the Employment of Relatives (Nepotism).” Specifically, 6-B
D.C.M.R. § 1806.3 prohibits a public official from making a direct or indirect “hiring
decision regarding a position within his or her own agency with respect to a
relative.” 6 The regulation defines a “hiring decision” as “selecting, appointing,
6
Under 6-B D.C.M.R. § 1806.2, “public official” is defined “as an officer,
employee, or any other individual in whom authority by law, rule, or regulation is
vested, or to whom the authority has been delegated to select, appoint, employ,
promote, reassign, demote, separate, or recommend individuals for any of these
actions.” 6-B D.C.M.R. § 1806.2(a).
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employing, promoting, reassigning, advancing, or advocating a personnel action.”
6-B D.C.M.R. § 1806.2(b) (emphasis added). Section 1806.3 goes on to specify that
“a public official may not appoint, employ, promote, evaluate, interview, or advance
(or advocate for such actions) any individual who is a relative in an agency in which
the public official serves or exercises jurisdiction or control.” (emphasis added). A
public official’s violation “shall constitute disciplinary cause and subject the public
official to disciplinary action, up to, and including removal.” 6-B D.C.M.R.
§ 1806.3. Additionally, in the event the public official’s “agency contemplates
making a hiring decision concerning a relative of a public official within the same
agency, the public official must file a written recusal, which shall be included in the
relative’s official personnel file along with the subject personnel action.” 6-B
D.C.M.R. § 1806.6.
The first step in statutory interpretation is to determine if the “language is
plain and admits of no more than one meaning.” Odumn v. United States, 227 A.3d
1099, 1102 (D.C. 2020) (quoting Peoples Drug Stores., Inc. v. District of Columbia,
470 A.2d 751, 753 (D.C. 1983) (en banc)). Even if there is “superficial clarity,” we
may look beyond plain meaning: (1) where “a review of the legislative history or an
in-depth consideration of alternative constructions that could be ascribed to statutory
language . . . reveal[s] ambiguities that the court must resolve;” (2) where “the literal
12
meaning of [the] statute . . . produces absurd results;” (3) so that, “whenever possible,
the words of the statute are . . . construed to avoid obvious injustice;” or (4) in order
“to effectuate the legislative purposes, as determined by a reading of the legislative
history or by an examination of the statute as a whole.” Id.When interpreting a term, here it is “advance,” that appears as part of the
definition of another term, “hiring decision,” we keep in mind the ordinary meaning
of the main term being defined. See Borden v. United States, 141 S. Ct. 1817, 1830
(2021). The actions Mr. Price took of printing out a copy of Ms. Ward’s resume
along with 50 to 60 other resumes sent to him from other applicants in response to
an email he sent office wide to all interested applicants, does not evince advancement
of his sister-in-law’s resume as part of a “hiring decision.” Similarly, forwarding
Ms. Ward’s resume along with a group of 50 to 60 other resumes to staff typically
charged with evaluating resumes does not amount to advancing a familial applicant
in making a “hiring decision.” Mr. Price’s actions were ministerial as he was a
conduit in delivering a batch of resumes.
Words must also be interpreted in context, where “we do not read statutory
words in isolation; the language of surrounding and related paragraphs may be
instrumental to understanding them.” Am. Studies Assoc. v. Bronner, 259 A.3d 728,
13
745 (D.C. 2021); see also Bronner, 259 A.3d at 745 (“Our focus cannot be too
narrow, for the plainness or ambiguity of statutory language is determined not only
by reference to the language itself, but also by considering the specific context in
which that language is used, and the broader context of the statute as a whole.”)
(cleaned up). BEGA’s selected definition also does not support the idea that “a
word . . . is known by the company it keeps.” Sivaraman v. Guizzetti & Assocs.,
Ltd., 228 A.3d 1066, 1075 n.13 (D.C. 2020) (internal quotation marks omitted).
Here, the term “advance” in § 1806.3 should be read to fit in with the other terms in
that provision. Those terms focus on employment actions, and the purely physical
definition of “advance” taken from an old version of Black’s Law Dictionary does
not fit within the employment context. As Mr. Price has pointed out there are other
dictionary definitions that can be considered, and our cases have cautioned against
placing too much weight on dictionary definitions considered out of context. See,
e.g., Expedia, Inc. v. District of Columbia, 120 A.3d 623, 631 (D.C. 2015) (“Courts
must not make a fortress out of the dictionary . . . .”) (internal quotation marks
omitted). Therefore, it is far from plain that the dictionary definition of “advance”
used by BEGA governs in interpreting the term “hiring decision.” Cf. Lawson v.
Dep’t of the Air Force, 2020 MSPB LEXIS 1097, *1, *7 (Mar. 18, 2020) (concluding
that approval of a sister’s promotion within the same organization constituted
nepotism because three was a deliberate act and direct involvement in the hiring
14
process which created “undue command influence”); Alexander v. Dep’t of the Navy,
24 M.S.P.R. 621, 625 (1984) (finding that appellant did not “advocate” on his
daughter’s behalf by merely asking generally about available positions within his
agency and where his daughter’s application was submitted through a third-party).
The definition of “advance” applied by BEGA as part of the definition of
“hiring decision” is also overly broad to accomplish the purpose of the regulation.
A primary concern for the Council of the District of Columbia’s Committee on
Government Operations (the “Committee”) was to thwart the hiring of
underqualified individuals in high ranking government positions, particularly related
to political appointments. See Report on Bill No. 19-476 before the Committee on
Government Operations, Council of the District of Columbia, at 1, 2 (Dec. 5, 2011).
The Committee investigated the personnel practices of the Executive branch during
a previous administration and following the investigation, the Committee introduced
changes to the regulations to “curb the behavior that [ ] [led] to improper hiring
practices,” which included senior officials appointing relatives to Excepted Service
positions “result[ing] in unqualified leaders, the misappropriation of public funds
and a violation of public trust.” Id. at 2-3, 5-6. The Committee introduced changes
to the regulations that included adding the prohibition of nepotistic hiring for all
levels of District of Columbia government employment, to include Excepted
15
Service, where previously the nepotism prohibition only applied to Career Service
employees. Id. at 3. The Committee sought to “[c]larify[] restrictions on nepotism
and unify[] federal and local law [to] reestablish the public trust and . . . autonomy,”
in order to curb similar behavior from occurring. Id. at 5. The Committee
determined that enforcement of the nepotism violations at the local level were
insufficient because the prohibition only applied to Career Service positions. Id. at
3, 5. Therefore, the Council added the prohibition of “nepotism in all District
government Employment.” Id. at 7. The Committee proposed that this could be
accomplished by setting up “clear and specific guidelines for hiring in the Excepted
Service and generally in the government” to ensure appointees were well qualified
and sufficiently vetted, which would prevent “any instances of unfair hiring practices
involving family members of senior officials from occurring in the future.” Id.; see
also Prohibited Personnel Practice 7: Nepotism, U.S. Merit Sys. Prot. Bd.,
https://www.mspb.gov/ppp/7ppp.htm; https://perma.cc/L9AR-AFBZ (last accessed
Aug. 25, 2022) (“In order to limit even the appearance of improper favoritism
towards relatives, this provision assures that public officials cannot use their
influence to advance their relatives in hiring or career advancement.”).
In determining whether an employee “advance[d]” a relative to be hired for a
position within the District government and within the plain meaning of “hiring
16
decision” in our statute, BEGA should consider and determine whether and to what
extent preference is expressed by the employee. BEGA’s broad application of the
definition of “advance” prohibits actions that are not inherently preferential or
unfair, which is inconsistent with the purpose of the nepotism restriction in the
regulation. To accomplish the regulation’s intended purpose and avoid penalizing
acts lacking an improper aim, the prohibited nepotistic hiring actions should exhibit
preference for a particular applicant because of familial relation. The interpretation
of “advance” applied by BEGA would result in unreasonable sanctions against
employees who were not using their position to give preferential hiring treatment on
behalf of a relative. For example, putting a relative’s resume into an office mailbox
would be considered “advancing” under BEGA’s interpretation; whereas, under the
interpretation reached here, such act would not amount to a “hiring decision” as it
fails to convey a preference for a particular individual.
Here, the record on appeal lacks substantial evidence to support that Mr. Price
committed any of the acts listed in the regulation’s definition which constitute a
“hiring decision” because his actions were ministerial and non-preferential and no
one involved in the actual hiring decision was aware of Mr. Price’s relationship to
the applicant. Though he was a public official, his actions of collecting and printing
a batch of resumes, and then forwarding them on for assessment by his staff, without
17
expressing any preference for a particular individual were ministerial in nature and
did not constitute a violation of the Code of Conduct. His actions also lacked any
indication of preference that would ensure his sister-in-law’s resume was selected
for hiring. Furthermore, no one involved in the actual hiring decision was aware of
Mr. Price’s relationship to the application.
In conclusion, we reverse the trial court’s order sustaining BEGA’s
determination that Mr. Price violated 6-B D.C.M.R. § 1806.3. We conclude the
record lacks substantial evidence that Mr. Price “advanced” his sister-in-law’s
resume in a manner that was non-ministerial, that expressed she receive preferential
treatment for a position within the agency in which he was employed, or that
disclosed their relationship. As such, we vacate the civil penalty of $1,500 and
restitution in the amount of $26,182.10 assessed in connection with violation one.
So ordered.