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Mallof v. Dist. of Columbia Board of Elections and Ethics

August 5, 2010


On Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics.

The opinion of the court was delivered by: Glickman, Associate Judge

Argued September 30, 2009

Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.

Petitioners David J. Mallof, Elizabeth B. Elliott, and John D. Hanrahan live and vote in Ward 2 of the District of Columbia. They complained to the Office of Campaign Finance in the Board of Elections and Ethics that a candidate running for the Ward 2 seat on the Council of the District of Columbia had violated the city's campaign finance law by using District government resources to support his campaign. The Office of Campaign Finance investigated the complaint and found no violation. Petitioners asked the Board to review that determination, but the Board concluded they lacked standing because they were not "adversely affected" by the decision.

Petitioners now ask us to reverse the Board and remand for it to consider their complaint on its merits. We decline to do so, for we agree with the Board that petitioners lacked standing to obtain the review they sought.

I. The Regulatory Framework

The campaign finance laws of the District of Columbia are codified in Chapter 11 of Title1 of the District of Columbia Code.*fn1 Section 1-1106.51 (a) prohibits the use of District government resources for campaign-related activities. In pertinent part, the statute provides that "[n]o resources of the District of Columbia government, including, the expenditure of funds, the personal services of employees during their hours of work, and non-personal services, including supplies, materials, equipment, office space, facilities, telephones and other utilities, shall be used to support or oppose any candidate for elected office . . . ."*fn2 Subsection (b)(2) of the same statute makes clear that its prohibitions apply to "any member of the staff of the Mayor, the Chairman and members of the Council, or the President and members of the Board of Education, or any other employee of the executive or legislative branch."*fn3

Responsibility for investigating alleged violations of Section 1-1106.51 and other campaign finance law provisions is vested in the Director of the Office of Campaign Finance ("OCF")in the Board of Elections and Ethics.*fn4 Under regulations promulgated by the Board, a "preliminary" OCF investigation may be initiated either internally or on a complaint "by any employee or resident of the District of Columbia."*fn5 The preliminary investigation, to be completed within twenty days,*fn6 enables the Director of OCF to determine whether to open a "full" investigation based on "reasonable cause" to believe that a campaign finance violation has occurred.*fn7 If so, the Director must notify the subject of the investigation in writing and offer him or her "an opportunity to respond to the allegations."*fn8

In a full investigation, the Director is authorized to gather evidence by subpoena, depositions, and other appropriate means.*fn9

If the full OCF investigation develops "sufficient evidence" of a campaign finance violation, the Director "shall institute" an action before the Board and present evidence of the violation in "an adversary and open hearing."*fn10 The hearing is a contested case proceeding subject to the requirements of the District of Columbia Administrative Procedure Act.*fn11 OCF "has the burden of proving a violation with reliable, probative and substantial evidence."*fn12 If the Board finds a campaign finance law violation, it may assess a civil monetary penalty*fn13 or seek declaratory or injunctive relief in Superior Court, and it also may refer the violation to the United States Attorney for criminal prosecution.*fn14

On the other hand, if OCF's full investigation finds "insufficient evidence" of a campaign finance law violation, the Director may dismiss the case.*fn15 The Director must report any such dismissal to the Board "by order with written findings of facts and conclusions of law."*fn16 Any "party" to the investigation (a term not defined in the regulations) who is "adversely affected" by the dismissal order may obtain review of the order by filing a request for a de novo hearing with the Board.*fn17 As in an adversary action against the alleged violator commenced by the Director, the hearing before the Board would be a contested case proceeding subject to the Administrative Procedure Act.*fn18

II. Petitioners' Complaint to OCF and the Board

Petitioners are registered District of Columbia voters who reside in Ward 2. On August 28, 2008, they filed a complaint with OCF charging that Jack Evans, the incumbent Councilmember from Ward 2, had violated the District's campaign finance law by using government resources in his re-election campaign. Specifically, petitioners alleged, Evans had "improperly used his own Council office to take photographs of himself with [Metropolitan Police Department] Police Chief Cathy Lanier while she was on duty and in official uniform," and had used one of those photographs in a campaign advertisement published in The Current, a widely distributed local weekly newspaper, on August 13, 2008. This full-page ad urging readers to vote for Evans in the upcoming September 9 primary election featured a color photo of Chief Lanier standing arm-in-arm with Evans under the headline "Working Together for Ward 2." Petitioners complained that the ad "implied a clear endorsement of Evans by Chief Lanier."

Petitioners further alleged that the Evans campaign also had displayed the photograph of Evans and Chief Lanier on its website, but had removed it "soon after [petitioners] publicly protested the newspaper ad." And, according to the complaint, the advertisement had attracted unfavorable attention from other quarters as well: "[F]rom what we have read in the press," petitioners stated, "we believe Chief Lanier apparently did not know in advance that Mr. Evans would use her photograph with him in a campaign ad." "Further," petitioners reported, "the police union expressed concerns in the press that the photo made it appear that not only Lanier endorsed Evans, but that perhaps the entire department -- as personified by the Chief -- also endorsed him."

In response to the complaints from petitioners and others,*fn19 OCF opened a preliminary investigation and asked the Evans campaign to stop using the photograph. The campaign complied with that request. A few days later, on September 5, 2008, OCF initiated a full investigation into whether the campaign had used government resources for election purposes in violation of D.C. Code § 1-1106.51. In the course of that investigation, OCF received responses to the allegations from Councilmember Evans and Chief Lanier.

On November 20, 2008, OCF concluded its investigation and issued an order dismissing the complaint. OCF found that Evans had not violated Section 1-1106.51 "because the photograph was not taken for a campaign-related purpose and because Chief Lanier consented to pose with [Evans] in the photograph for a personal, not campaign-related, purpose."*fn20 Upon receiving the dismissal order, petitioners filed a request for review by the Board. Evans was permitted to intervene in the review proceeding.

The issue of petitioners' standing to seek review was raised at a pre-hearing conference convened by the Board on January 5, 2009. The question, as the Board's representative explained, was whether petitioners were "adversely affected" by the OCF ruling so as to entitle them to Board review under 3 DCMR § 3705.4. The Board asked the parties to address that question in their pre-hearing briefs.

In response to the Board's request, petitioners' brief linked their standing to appeal OCF's dismissal of their complaint to their standing to lodge ...

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