Vann v. Dist. of Columbia, Etc.
| Decision Date | 07 January 1982 |
| Docket Number | No. 80-417.,80-417. |
| Citation | 441 A.2d 246 |
| Parties | James E. VANN, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Respondent. |
| Court | D.C. Court of Appeals |
Philip T. Van Zile, III, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.
Before HARRIS, PRYOR and BELSON, Associate Judges.
Petitioner seeks review of an order of the District of Columbia Board of Funeral Directors and Embalmers (the Board), suspending his undertaker's license for a period of 90 days. Petitioner asks that the Board's order be set aside on the grounds that: (1) the Board did not issue its decision within 90 days after the date the hearing was completed, and serve notice thereof upon petitioner or his attorney within an additional five days as prescribed by the regulations governing occupational and professional licensing boards, 5DD DCRR §§ 50.1 and 50.3; (2) the Board erred in denying petitioner's motion to disqualify Board members; and (3) the Board's decision was not supported by substantial evidence. We find petitioner's claims of error unpersuasive, and affirm.
Petitioner is a licensed undertaker in the District of Columbia. On August 13, 1979, the Board charged him with "failing to act in the interest and protection of the comfort and quiet of citizens" and "engaging in annoying and unseemly conduct in connection with performing or offering to perform undertaking services" in violation of D.C. Code 1973, § 47-2345(a), and 5N DCRR §§ 10.1 and 12.1(a), (c), and (d); and with "carrying out practices detrimental to public health and safety" in violation of D.C. Code 1973, § 47-2344a(d)(1), and 5DD DCRR § 10.1.
Prior to the hearing, petitioner filed a motion with the Board asking that the four active Board members be disqualified on the grounds that all of them, as undertakers, were in competition with him, and that two of them, members Tillman and Plummer, were personally biased against him.1 The motion was denied.2 On November 29, 1979, the Board began the hearing on the charges against petitioner. The case was taken under advisement on December 14, 1979. On April 14, 1980, the Board served upon petitioner its finding that petitioner had violated the above-cited statutes and regulations and its decision suspending his license for a period of three months.
Our review in this case is governed by D.C.Code 1973, § 1-1510, which provides for judicial review of the actions of administrative agencies such as the Board. In accordance with the provisions of § 1-1510(3), we will not set aside any finding, conclusion or action of the Board unless it is found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; in excess of the Board's powers; or in violation of applicable procedure, or unsupported by substantial evidence in the record.
Proceedings before the Board are governed by 5DD DCRR. The applicable regulations provide that the Board shall render its decision "as soon as practicable, but not later than ninety days after the date the hearing is completed," 5DD DCRR § 50.1, and that the Board shall, within five days after the decision is rendered, serve a copy thereof upon the person concerned, or his attorney. 5DD DCRR § 50.3. It is not contested that the Board took petitioner's case under advisement on December 14, 1979, and did not serve petitioner with a copy of its decision until approximately 122 days later.3 Petitioner contends that the decision should be set aside because it was rendered more than 90 days after the hearing was completed.4 We cannot agree.
In JBG Properties, Inc. v. District of Columbia Office of Human Rights, D.C.App., 364 A.2d 1183 (1976), we held that the provisions of the District of Columbia Human Rights Law directing that the Office of Human Rights take action with respect to complaints filed with it within a specified time period were directory, and that the Office's failure to act within that time period did not necessarily require that the complaint be dismissed.
In reaching our holding in JBG Properties, Inc., we noted that statutory provisions concerning the performance of duties by public officers generally are considered directory so that the interests of private parties and the public might not suffer due to the official's failure to act promptly. In order to protect all the interests involved, we adopted a balancing test to determine whether any prejudice to a party caused by agency delay is outweighed by the interests of another party or the public in allowing the agency to act after the statutory time period has elapsed.5 We held also that the agency bears the burden of demonstrating that its delay did not substantially prejudice the complaining party.6
Application of the balancing test set forth in JBG Properties, Inc., to the facts of the present case leads to the conclusion that the Board's decision should not be set aside. Petitioner experienced no prejudice as a result of the Board's failure to act within 90 days. This is not a situation in which a petitioner was seeking to obtain a license from the Board and was prevented from practicing his profession by the Board's failure to act promptly. Under those circumstances, prejudice might occur.7 Here, petitioner experienced only delay in having his license suspended. As petitioner's counsel conceded, the Board's delay did not impair the fairness of the proceedings or the correctness of the action taken. In view of the lack of prejudice to petitioner and the public interest in resolution of the charges against petitioner,8 we hold that the Board's failure to act within 90 days does not render its decision invalid.
Petitioner's second claim of error arises out of the Board's denial of his motion to disqualify board members. The Board is composed of five members, one of whom represents the Department of Public Health and serves in an ex officio capacity. In his motion, petitioner asked that the four active Board members be disqualified from hearing his case. Petitioner asserted that those members had a pecuniary interest in the outcome of the proceedings as competitors of petitioner, and that members Tillman and Plummer were in addition personally biased against him. The motion was denied by the Board.
With respect to the composition of the Board, D.C.Code 1973, § 47-2344a(d)(2), provides that:
[The Mayor, and the Council of the District of Columbia] . . . are hereby authorized . . .
(2) [t]o appoint a committee of five of good moral character, two of whom shall have been actually and continously engaged in discharging the duties of an undertaker or embalmer in the District of Columbia for at least five years next preceding their appointment years next preceding their appointment and the Director of Public health, or a member of the personnel of the Health Department designated by said Director of Public Health, who shall serve ex officio as a member of said committee. . . .
Petitioner claims that the statute provides that only two members of the Board may be funeral directors or embalmers. We note first that even if petitioner were correct in his interpretation, he would have no grounds for a claim that all of the Board members should be disqualified, because the statute clearly provides for at least two undertakers or embalmers. Further, we do not view § 47-2344a(d)(2) as limiting to two the number of undertakers or embalmers on the Board.
Our reading of statutes creating boards for occupational or professional licensure in the District of Columbia reveals that in some instances the legislature has enacted specific provisions concerning the number and/or qualifications of board members, while in other instances it has enacted no such provisions. The legislative provisions concerning member qualifications include residence and character requirements, as well as requirements as to the number of board members who must be licensed professionals.9 In at least one instance the legislautre specificially has restricted the number of board members who may possess certain characteristics.10 We conclude, therefore, that the legislature made express provisions concerning the qualifications of board members when it wished to do so, and that the absent of such express provisions indicates a legislative indifference to the qualifications of the members not provided for.
As to the Board of Funeral Directors and Embalmers, D.C.Code 1973, § 47-2344a(d)(2), provides only that the Board be composed of five persons of good character, one of whom shall represent the Board of Public Health and two of whom shall be licensed professionals. In the absence of any specific language or other clear indication of legislative intent concerning the professional status of the remaining two members, we decline to infer an intent to restrict the membership of the Board to two licensed undertakers or embalmers.
In his motion, petitioner also asserted that two Board members should be disqualified because of personal bias. We have noted previously that the standard for disqualification of judicial officers is applicable to administrative officials who act in an adjudicative or quasi-judicial capacity. See Morrison v. District of Columbia Board of Zoning Adjustment, D.C.App., 422 A.2d 347, 349 (1980).11 A judicial officer must recuse himself whenever a claimant alleges facts which are legally sufficient to show personal bias.
In this jurisdiction we have adopted a three-point test of the legal sufficiency of a claim of personal bias:
1. The facts (alleged) must be material and stated with particularity.
2. The facts must be such that, if true, they would convince a reasonable man that a bias exists.
3. The facts must show the bias...
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