Opinion
16-P-238
04-25-2017
CITY COUNCIL & others v. STATE ETHICS COMMISSION& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, a city council (council) and certain individuals who are current and former members of the council, appeal from a Superior Court judgment that dismissed their amended complaint for declaratory and injunctive relief against the State Ethics Commission (commission). We affirm.
Background. We draw the facts from the amended complaint. In August, 2012, the council overrode the mayor's veto and enacted an ordinance that increased councillors' salaries by forty-four percent (2012 ordinance). In January, 2013, the increase went into effect. In March, 2014, two councillors who are not parties to this action submitted a written motion to the council to rescind the pay increase. The motion failed. In July, 2014, the commission contacted the council regarding the 2012 ordinance and its compliance with the State's ethics laws. See G. L. c. 268A and c. 268B. In May, 2015, the commission mailed to the council's attorney nine "Summons[es] for Testimony" before the commission.
Rather than respond, the council filed a complaint, which was subsequently amended, seeking a declaration that the 2012 ordinance is not subject to G. L. c. 268A, and an order enjoining the commission from investigating it. The commission moved to dismiss for lack of subject matter jurisdiction, based upon the council's failure to exhaust administrative remedies, and for a failure to state a claim upon which relief can be granted. See Mass.R.Civ.P. 12(b)(1), (6), 365 Mass. 754 (1974). In a written memorandum of decision and order, a judge in the Superior Court allowed the motion to dismiss for lack of subject matter jurisdiction. He agreed with the commission that there was no final agency decision which could form the basis for declaratory or injunctive relief, and he found inapplicable the exceptions to the exhaustion requirement. On December 1, 2015, judgment of dismissal entered. The council filed a timely notice of appeal.
He therefore declined to reach the issue of whether the complaint sufficiently stated a claim.
Discussion. We begin our analysis by noting that, "because there had been no administrative proceedings before the filing of the complaint, technically this case does not raise the question whether administrative remedies have been properly exhausted, but rather whether the commission[ ], instead of the court, has primary jurisdiction." Hartford Acc. & Indemn. Co. v. Commissioner of Ins., 407 Mass. 23, 26 (1990). We review de novo the judge's implicit conclusion that primary jurisdiction lies with the commission, Arsenault v. Bhattacharya, 89 Mass. App. Ct. 804, 809 (2016), taking as true all facts alleged in the amended complaint and drawing every reasonable inference in favor of the council. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
There can be no dispute that the commission enjoys primary jurisdiction in this case. The 2012 ordinance is a "[p]articular matter" in which the councilors "[p]articipate[d]" as "[m]unicipal employee[s]." G. L. c. 268A, § 1(g ), (j ), (k ). The amended complaint does not allege that the council disclosed in writing their financial interest before the ordinance passed, c. 268A, § 19(b ); even drawing all reasonable inferences in the council's favor, the commission had "reasonable cause for belief that" c. 268A, § 19(a ), was violated. G. L. c. 268B, § 4(c ), as appearing in St. 1986, c. 12, § 5. As the agency empowered to "act as the primary civil enforcement agency for violations of all sections of" c. 268A, the commission is entitled in the first instance to "initiate an adjudicatory proceeding to determine whether there has been such a violation." G. L. c. 268B, § 4(c ). We see no "extraordinary circumstances" which warrant court interference with the commission's "prosecutorial discretion," Zora v. State Ethics Commn., 415 Mass. 640, 652 (1993), and we conclude that "the nature of [this] controversy is ‘uniquely within the expertise and experience of [the] agency’ in question." Lumbermens Mut. Cas. Co. v. Workers' Comp. Trust Fund, 88 Mass. App. Ct. 183, 187 (2015), quoting from Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879 (1984).
We too decline to address the commission's argument that the amended complaint fails to state a claim.
Judgment affirmed.