In re Sims

• Decision Date: 11 March 2004
• Docket Number: No. 98-BG-1384.,98-BG-1384.
• Parties: In re Nathaniel SIMS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

844 A.2d 353

In re Nathaniel SIMS, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 98-BG-1384.

District of Columbia Court of Appeals.

Argued April 16, 2003.

Decided March 11, 2004.

Samuel McClendon for respondent.

Elizabeth A. Herman, Senior Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel, was on the brief, for the Office of Bar Counsel.

Before TERRY and REID, Associate Judges, and KING, Senior Judge.

REID, Associate Judge:

The Board on Professional Responsibility ("the Board" or "BPR") recommends that Respondent Nathaniel Sims be disbarred based on a misdemeanor conflict of interest conviction which it concludes "involves moral turpitude on the facts," and because of violations of Rules 8.4(b), (c), and (d) of the District of Columbia Rules of Professional Conduct. Mr. Sims filed an "exception to the conclusions of law and recommended sanction" of the Board. We hold that in the case of a misdemeanor conflict of interest, a nonserious crime, the Board may determine whether or not that offense involves moral turpitude on the facts. We also set forth legal principles to guide the moral turpitude inquiry in this case. Since neither the Hearing Committee nor the Board has had an opportunity to make the moral turpitude inquiry under the legal principles set forth in this opinion, we remand this matter to the Board with instructions to remand it to the Hearing Committee for a determination as to whether or not Mr. Sims was convicted of an offense involving moral turpitude on the facts. Thereafter, the Board shall submit a revised report and recommendation to this court.

FACTUAL SUMMARY

The record before us shows that beginning around February 1997, the FBI launched an investigation into allegations of impropriety by Mr. Sims. At the time, Mr. Sims was a hearing examiner in the Bureau of Traffic Adjudication ("BTA") at the District of Columbia Department of Public Works.¹ Two FBI agents interviewed then current and former staff at the BTA, the project manager for the computerized Ticket Information Management System ("TIMS") used to keep track of the issuance and disposition of traffic tickets, and Mr. Sims. An unsigned March 24, 1997 report of the two FBI Agents stated, in part:

The Acting Chief [of the BTA] with the assistance of the TIMS Project Manager for Ticket Processing, Lockheed Martin, the contractor who maintains the TIMS data base for the District, provided hard copies of a total of $1,280.00 in reductions and suspensions made between March 6, 1996 and February 4, 1997, for [Mr. Sims] and his wife and daughter's tickets. (3) tickets were dismissed and 2 points were suspended for his wife ... and (1) ticket was dismissed for his daughter .... (18) tickets were dismissed for [Mr. Sims]. All the entries in TIMS on the (22) tickets reflected [Mr. Sims'] identification code and the [h]earing [o]fficer codes of either [Mr. Sims] or other [h]earing [o]fficers.

Later, on April 15, 1998, the United States Attorney for the District of Columbia sent Mr. Sims' attorney a proposed plea agreement. Paragraph (1) of that agreement specified that:

Mr. Sims agrees to plead guilty to a one-count Information charging violations of Title 18, United States Code, Sections 208 and 216(a)(1) (Conflict of Interest—misdemeanor). It is understood that the guilty plea will be based on a factual admission of guilt to the offense charged to be made before the [c]ourt by Mr. Sims and will be entered in accordance with Rule 11 of the Federal Rules of Criminal Procedure.

In Paragraph (7), "[t]he government reserve[d] the right to set forth at sentencing all of its evidence with respect to Mr. Sims' criminal activities ...." Mr. Sims and his counsel signed the plea agreement on April 20, 1998.

On that date, Mr. Sims entered a plea of guilty to a one count violation of 18 U.S.C. §§ 208 and 216(a)(1) before a United States Magistrate Judge in the United States District Court for the District of Columbia. The Information to which he pled guilty stated:

1. At all times material herein:

(a) the defendant [Mr. Sims] was employed as a[h]earing [e]xaminer by the [BTA];

(b) a [h]earing [e]xaminer's duties included adjudicating notices of infraction (tickets) which had been issued concerning motor vehicles;

(c) a [h]earing [e]xaminer is required to document the decision made during an in-person hearing by completing a[h]earing [r]ecord and by entering the disposition into the BTA Ticket Information Management System;

(d) a [h]earing [e]xaminer is precluded by BTA regulations from adjudicating tickets which had been issued to him and/or members of his family.

CONFLICT OF INTEREST

2. On or about December 9, 1996, within the District of Columbia, the defendant [Mr. Sims], being an employee of the Government of the District of Columbia, participated personally and substantially as a government employee, through decision in a request for a ruling or other determination, in a matter in which he knew he had a financial interest; that is, the defendant [Mr. Sims] dismissed ticket number XXXXXXXXX which had been issued on December 9, 1996 by an employee of the Department of Public Works on the car leased by the defendant [Mr. Sims] thereby releasing the defendant [Mr. Sims] from his obligation to pay the $50 fine.

During the plea hearing, the prosecutor summarized the government's evidence related to the offense charged in the Information, and added that:

The evidence would further have shown that between October 26th of 1995 and February 4 of 1997, [Mr. Sims] adjudicated 19 other tickets which affected him or his family and resulted in a suspension of fines and late penalties totaling an additional $1,230.00(sic).

When the Magistrate Judge asked, "Mr. Sims, is that in fact what happened, sir, with regard to the matter alleged in the information," Mr. Sims replied: "Yes, Your Honor." Mr. Sims was sentenced on August 5, 1998, to eighteen months of probation, and ordered to pay a fine of $500.00 and a mandatory special assessment of $25.00. In addition, he was ordered to complete fifty hours of community service. Mr. Sims satisfied the order for restitution of $1,280.00 prior to his sentencing.

After receiving notice of Mr. Sims' conviction, Bar Counsel's office sent a letter to the Clerk of this court advising that: "In the absence of a willfulness element, we believe that the offense does not constitute a `serious crime' as defined by D.C. Bar R. XI, § 10(b)." Tracking Bar Counsel's language, the Chief Judge of this court referred the matter to the BPR on September 23, 1998 for appropriate action, concluding in part that: "[I]t appear[s] that the [misdemeanor] offense [to which Mr. Sims entered a guilty plea] does not constitute a `serious crime' as defined by D.C. Bar R. XI, § 10(b)." In response to this court's referral, Bar Counsel issued a specification of charges against Mr. Sims on December 29, 1998. The specification set forth Mr. Sims' criminal conviction and his employment with the District government. In addition, Paragraphs (4), (5), and (7) of the specification alleged that:

Between October 26, 1995 and February 5, 1997, [Mr. Sims] adjudicated 19 other tickets that affected his family or him and resulted in the forgiveness of fines and late penalties totaling an additional $1,230 (sic).

[Mr. Sims'] conduct violated the following provisions of the District of Columbia Rules of Professional Conduct:

(a.) Rule 8.4(b), in that Respondent engaged in criminal conduct that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects;

(b.) Rule 8.4(c), in that Respondent engaged in conduct involving dishonesty, fraud, deceit and/or misrepresentation;

(c.) Rule 8.4(d), in that Respondent engaged in conduct that seriously interfered with the administration of justice ....

Respondent's criminal conviction involved moral turpitude on the facts, requiring his disbarment pursuant to D.C.Code § 11-2503(a).

A hearing on the specification of charges took place on May 26, 1999, before Hearing Committee Number Four of the BPR. Bar Counsel presented no witnesses, but rested its case on exhibits accepted into evidence by the Chairman of Hearing Committee Four.² In addition to findings pertaining to Mr. Sims' plea and sentence in the United States District Court for the District of Columbia, the Hearing Committee's factual findings included the following:

The [FBI] investigation revealed that on 20 occasions between October 5, 1995 and January 31, 1997, [Mr. Sims] dismissed citations issued to vehicles registered to him, his wife, and two of his daughters.

[Mr. Sims] effected the dismissals by logging into the BTA computer system with his identification code and secret password. With respect to a majority of those tickets, he used a disposition code for the dismissed tickets that reflected that a hearing examiner other than himself adjudicated the tickets.

As a result of these actions by [Mr. Sims], he and his family avoided paying fines and late penalties in the amount of $1,280.³

At the hearing [before Hearing Committee Four], [Mr. Sims] testified that he dismissed the tickets issued to vehicles owned or leased by him and his family using only the personal disposition codes assigned to him. However, the evidence in the record shows that [Mr. Sims] also used the personal disposition codes of other hearing examiners to dismiss tickets or to remove late penalties or points on his own tickets or on tickets issued to his wife or his daughter. For example, Bar Exhibit 11 is a list of the 20 dismissed citations issued to vehicles registered to the family of [Mr.] Sims. Of the 20 citations listed, 17 were dismissed using the Hearing Examiner ID Code of a Hearing Examiner other than [Mr. Sims]. [Mr. Sims] has conceded that he dismissed the citations. Evidence in the record demonstrates that all Hearing Examiners had access to the Hearing Examiner ID codes for all of the

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