Price v. District of Columbia Board of Ethics and Government Accountability

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-AA-1230

GERREN PRICE, PETITIONER,

V.

DISTRICT OF COLUMBIA BOARD OF ETHICS

AND GOVERNMENT ACCOUNTABILITY, RESPONDENT.

On Petition for Review of an Order of the

District of Columbia Board of Ethics and

Government Accountability

(1426-001)

(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.

Opinion for the court by Senior Judge WASHINGTON.

Dissenting opinion by Associate Judge EASTERLY at page 14.

WASHINGTON, Senior Judge: Before us is a petition for review of a final

decision by the District of Columbia Board of Ethics and Government

2

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

3

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.

4

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 &

5

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).

6

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

1

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. D.C. Code §§ 1-1162.02(a)(4), 1-

1162.15 (2012 Repl.). Further, in order for the Ethics Board to determine a

violation and order a penalty, the Ethics Act requires an “open and adversarial

hearing” in accordance with the DCAPA’s procedures for contested cases,

including presentation of oral and documentary evidence, calling and cross-

examining witnesses, and making a decision on the record created at the hearing.

D.C. Code §§ 1-1162.14(a), (b); 1-1162.21(a)(2); 2-509(b), (c), (e) (2012 Repl.).

7

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.

8

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. Woodruff, 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.).

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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 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 . . . .

Id. at 368.

The dissent contends that Sullivan directly conflicts with our earlier decision

in Capitol Hill Restoration Society, Inc. v. Moore, 410 A.2d 184 (D.C. 1979).

However, that case is distinguishable because there the statute passed by the

Council vested the Court of Appeals with initial review jurisdiction of agency

noncontested cases that inherently lack a complete and detailed factual record that

10

would enable us to properly exercise our jurisdiction to review agency decisions.

Id. at 188; D.C. Code § 11-722. By contrast, we are fully capable of reviewing an

agency contested case that has been reviewed by the Superior Court in the first

instance. See Sullivan, 436 A.2d at 368. The Ethics Act merely adds an additional

layer of review by the Superior Court, and that does not limit our review

jurisdiction of agency cases because the Superior Court’s initial review does not

affect our scope or standard of review in any way. See, e.g., Dupree v. District of

Columbia Dep’t of Corrections, 132 A.3d 150, 154 (D.C. 2016) (“[W]e review

agency decisions on appeal from the Superior Court the same way we review

administrative appeals that come to us directly.”). Therefore, we conclude that the

Ethics Act’s granting of jurisdiction to the Superior Court to provide initial review

of Ethics Board decisions does not violate the Home Rule Act, D.C. Code § 1-

206.02(a)(4), and is a valid exercise of legislative authority by the D.C. Council.

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, D.C. Code § 1-1162.17, does not run

afoul of the Home Rule Act, we must now determine whether the D.C. Council

intended to exclude Ethics Board proceedings from the definition of a contested

11

case under the DCAPA. We have held that the D.C. Council may enact exceptions

to the definition of a contested case “by implication” and that as long as there is a

clear legislative intent to amend the DCAPA, the text of the DCAPA itself need

not be altered. Sullivan, 436 A.2d at 367. Thus, the legislature’s failure to amend

the DCAPA itself is not determinative of whether it intended to create an exception

to the DCAPA’s definition of a contested case. Id.

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 id. Legislative intent to amend the DCAPA is even clearer if the statute’s text

demonstrates that the Council plainly contemplated creating an exception to this

court’s contested case review. See id. at 367-68. In Sullivan, we concluded that

the Traffic Adjudication Act of 1978 clearly expressed the Council’s intent to

create an exception to this court’s contested case review because its judicial review

provision provided that certain types of cases were to be reviewed by the Superior

Court, while other types of cases retained their contested case status and were to be

reviewed by this court in accordance with the DCAPA, 436 A.2d at 367-68.

12

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. D.C. Code § 1-

1162.17 (“Appeals of any order or fine made by the [Ethics] Board in accordance

with this subchapter shall be made to the Superior Court of the District of

Columbia.”). Although § 1-1162.17 does not reference the DCAPA, a different

section of the Ethics Act, § 1-1162.14(b), requires the Ethics Board to conduct

hearings in accordance with the DCAPA’s procedural protections for contested

cases. D.C. Code § 1-1162.14(b) (“Any hearing under this section shall be of

record and shall be held in accordance with Chapter 5 of Title 2.”). By

simultaneously providing that Ethics Board proceedings shall follow the

procedures for a contested case and then directing review of Ethics Board

decisions to the Superior Court, the Ethics Act, like the statute in Sullivan, 436

A.2d at 367-68, indicates that the Council intended to make an exception to the

DCAPA’s definition of a contested case.

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

13

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. 2 Therefore, we are

satisfied that the Council intended to amend the DCAPA to remove decisions by

the Ethics Board from the definition of contested cases over which the D.C. Court

of Appeals has primary review jurisdiction and, instead, vest the Superior Court

with initial review jurisdiction over those decisions.

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

2

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.

14

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.

EASTERLY, Associate Judge, dissenting: “The parties agree that the

proceeding before the Ethics Board was a ‘contested case.’” Ante at 6. 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.” D.C. Code § 2-510(a)

(emphasis added). The Court Reorganization Act, specifically D.C. Code § 11-

722(1), confers upon the Court of Appeals “jurisdiction . . . to review orders and

decisions” in D.C. agency cases, “in accordance with the [DCAPA].” Lastly, D.C.

15

Code § 1-206.02(a)(4) enacted as part of the Home Rule Act 1 provides that “[t]he

Council shall have no authority to . . . [e]nact any act, resolution, or rule with

respect to any provision of Title 11 (referring to the organization and jurisdiction

of the District of Columbia Courts)[.]”

Against this statutory backdrop, I cannot agree that the Council had the

authority to enact D.C. Code § 1-1162.17, which interferes with this court’s

exclusive jurisdiction to review contested cases arising out of Ethics Board

decisions by sending these cases first to the Superior Court. It is true that we have

said that the limitations imposed by D.C. Code § 1-206.02(a)(4) “must be

construed as a narrow exception to the Council’s otherwise 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. Am. Imp. Ctr., 110 A.3d 626, 629 (D.C. 2015) (internal quotation marks and

brackets omitted). But it is also true that that Congress did not give the District full

home rule; it retained plenary legislative power. Brizill v. District of Columbia Bd.

of Elections & Ethics, 911 A.2d 1212, 1213 (D.C. 2006) (“Congress

enacted . . . the District of Columbia Home Rule Act, delegating some, but not all,

1

District of Columbia Self-Government and Governmental Reorganization

Act, Pub. L. No. 93-198, 87 Stat. 774 (1973).

16

of its legislative powers to the Council of the District of Columbia while retaining

ultimate legislative authority over the District.”); see also Marijuana Policy

Project v. United States, 304 F.3d 82, 84 (D.C. Cir. 2002) (“[T]hrough the Home

Rule Act, Congress delegated some, but not all, of its Article I ‘exclusive’

legislative authority over the District of Columbia to the D.C. Council.”). And it

specifically prohibited the Council from altering the jurisdiction of our court as set

forth in Title 11. D.C. § 1-206.02(a)(4).

The Majority Opinion cites Woodroof v. Cunningham, 147 A.3d 777 (D.C.

2016), for the proposition that “[w]e have construed this [statutory] provision

narrowly to mean that the Council is precluded from amending Title 11 itself.”

Ante at 8. Woodroof does not say this. 2 To the contrary, in Woodroof we

explained that “[s]ection 1–206.02 (a)(4) . . . precludes legislation ‘with respect to’

the jurisdiction of the courts” and further that an “attempting to bypass the

‘contested case’ requirement of the District of Columbia Administrative Procedure

2

Similarly, this court’s recognition of the Council’s “broad legislative

power,” ante at 8 (quoting Andrew, 110 A.3d at 629); see also supra, does not

support the Majority Opinion’s conception of the Council’s authority in this

sphere. It is one thing to note that the Council’s otherwise broad authority to

legislate is limited by a narrow exception with respect to the jurisdiction of the

courts. It is another thing entirely to say that we narrowly construe that exception.

Our cases support the former, not the latter, proposition. See, e.g., Andrew, 110

A.3d at 629; Woodroof, 147 A.3d at 784.

17

Act (“DCAPA”)” was an “example” of legislation that “violates the Home Rule

Act.” 147 A.3d at 784.

The Majority Opinion relies on District of Columbia v. Sullivan, 436 A.2d

364 (D.C. 1981), for the proposition that the Council “has the authority to enact

legislative exceptions to th[e] definition” of a contested case, id. at 367, and thus

the power to enact D.C. Code § 1-1162.17. Sullivan’s analysis is subject to

question 3 and in direct conflict with the language of the Home Rule Act, which

imposes a blanket prohibition on the enactment by the Council of any legislation

“with respect to any provision of Title 11.” More importantly for the resolution of

this case, Sullivan is in direct conflict with this court’s earlier decision in Capitol

Hill Restoration Society v. Moore, 410 A.2d 184 (D.C. 1979), where we held that

the Home Rule Act prohibits the Council from altering this court’s “jurisdiction to

directly review” agency actions. Id. at 187 (emphasis added).

3

Sullivan relied on Columbia Realty Venture v. District of Columbia Hous.

Rent Comm’n, 350 A.2d 120 (D.C. 1975), to reach its conclusion. In that case, the

petitioners sought direct review of orders by the D.C. Housing Rent Commission,

see 350 A.2d at 121, which Congress had explicitly excepted from the DCAPA

scheme in the Rent Control Act of 1973, vesting the Superior Court rather than this

court with jurisdiction over the Commission’s decisions. Id. at 122, 123. Of

course, Congress is authorized to create new exceptions to the DCAPA contested

case rule. But that does not mean the Council is so empowered.

18

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 10, 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 410 A.2d at 188.

Nonetheless, we determined in Capitol Hill Restoration Society that the Council

had exceeded its authority under the Home Rule Act.

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

19

reviewing an agency contested case that has been reviewed by the Superior Court

in the first instance.” Ante at 10. 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, 285 A.2d 310, 312 (D.C. 1971). Indeed, decisions subsequent to

Sullivan have expressly or implicitly followed Capitol Hill Restoration Society,

see, e.g., Burkhardt v. District of Columbia Rental Hous. Comm’n, 198 A.3d 183,

187–88 (D.C. 2018) (quoting Woodroof, 147 A.3d at 784 (“We have held, for

example, that attempting to bypass the ‘contested case’ requirement of the

[DCAPA] violates the Home Rule Act.” (citing Capitol Hill Restoration Society,

410 A.2d at 186))), and upheld this court’s “exclusive authority to review

contested cases,” see Owens v. District of Columbia Water & Sewer Auth., 156

A.3d 715, 717 (D.C. 2017); accord Mathis v. District of Columbia Hous. Auth.,

124 A.3d 1089, 1099 (D.C. 2015). Notably, until now—thirty-eight years after

20

Sullivan was decided—it appears this court has not relied on it even once to

empower the Council evade the strictures of the Home Rule Act and the DCAPA. 4

For these reasons, I respectfully dissent.

4

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 11,

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).