GERREN PRICE, APPELLANT, v. BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY, APPELLEE.
No. 20-CV-527
DISTRICT OF COLUMBIA COURT OF APPEALS
November 10, 2022
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)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
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.
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
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 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
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. 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),
In relevant part,
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.
(emphasis added). Regarding the reporting requirement,
BEGA held a two-day evidentiary hearing and following the hearing issued a written Final Decision determining that violation one related to
Mr. Price filed a Petition for Review of BEGA‘s Final Decision in Superior Court4 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
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
“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
The regulations which govern BEGA‘s interpretation of the statute it administers and enforces are found in
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 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, 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 there was a deliberate act and direct involvement in the hiring 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
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 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 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.
So ordered.