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Interpretative Opinion 07-09: Conflict of Interest

December 31, 2007
 

Benjamin Young
Chief of Staff
Office of Councilmember David Catania
1350 Pennsylvania Avenue, N.W., Suite 110
Washington, DC 20004

Re: Conflict of Interest

Dear Mr. Young:

This responds to your request for an Interpretative Opinion concerning whether a potential conflict of interest exists with respect to the employment of an uncle of Councilmember Catania’s partner, Brian Kearney, by a company known as Value Options, that currently holds a contract with the District of Columbia Department of Mental Health.

Specifically, you stated that Mr. Kearney’s uncle does not work in the District or on District related projects. However, you indicated that you have learned that Value Options is interested in pursuing opportunities in the District and might one day bid on a contract that requires Council approval.

DC Official Code § 1-1106.01(b) (2001 Edition) provides that “[n]o public official shall use his or her official position or office to obtain financial gain for himself or herself, any member of his or her household, or any business with which he or she or any member of his or her household is associated with, other than that compensation provided by law for said public official. This subsection shall not affect a vote by a public official: (1) on any matter which affects a class of persons (such a class shall include no less than 50 persons) of which such public official is a member if the financial gain to be realized is de minimis…”

D.C. Official Code § 1-1106.01(f) provides that “[n]o member or employee of the Council of the District of Columbia … shall accept an assignment to serve on a committee the jurisdiction of which consist of matters (other than of a de minimis nature) in which he or she or a member of his family or a business with which he or she is associated, has financial interest.”

D.C. Official Code § 1-1106.01(g) provides that “[a]ny public official who, in the discharge of his or her official duties, would be required to take an action or make a decision that would affect directly or indirectly his or her financial interest or those of a member of his or her household, or a business with which he or she is associated, or must take an official action on a matter as to which he or she has a conflict situation created by a personal, family, or client interest, shall:

“(1) Prepare a written statement describing the matter requiring action or decision, and the nature of his or her potential conflict of interest with respect to such action or decision;
“(2) Cause copies of such statement to be delivered to the District of Columbia Board of Elections and Ethics (referred to in this subchapter as the “Board”), and to his or her immediate superior, if any; and
“(3) If he or she is a member of the Council of the District of Columbia or member of the Board of Education of the District of Columbia, or employee of either, deliver a copy of such statement to the Chairman thereof, who shall cause such statement to be printed in the record of proceedings, and, upon request of said member or employee, shall excuse the member from votes deliberation, and other action on the matter on which a potential conflict exists”.

In addition, Section 1803.1 of the District Personnel Manual (DPM) Standards of Conduct provides that “[a]n employee shall avoid action, whether or not specifically prohibited by this chapter, which might result in, or create the appearance of the following:

“(a) Using public office for private gain;
“(b) Giving preferential treatment to any person;
“(c) Impeding government efficiency or economy;
“(d) Losing complete independence or impartiality;
“(e) Making a government decision outside official channels; or
“(f) Affecting adversely the confidence of the public in the integrity of government.”

Specifically, “a District Government employee shall not solicit or accept … any gift from … any person or entity that:

“(1) has or is seeking to obtain contractual or business or financial relations with the District government;
“(2) Conducts operations or activities that are subject to regulation by the District government; or
“(3) Has an interest that may be favorably affected by the performance or non-performance of the employee’s official responsibilities.”

Accordingly, after a review of the facts you provided herein, it does not appear that the employment of Mr. Kearney’s uncle with a company that currently holds a contract with the government of the District of Columbia presents a conflict of interest for Councilmember Catania. In view of the fact that the Councilmember did not use his official position or office to obtain financial gain for himself, his partner or any member of his household in this matter; and, that neither he nor any member of his household will receive a financial benefit from the contract, there is no indication of the existence of a potential conflict of interest.

Therefore, it is the opinion of the Office of Campaign Finance that there is no nexus between the contract held by Mr. Kearney’s uncle and Councilmember Catania.

Nonetheless, the Councilmember is reminded that if he is presented with a situation as a Councilmember in which he is required to take an action or make a decision that would affect directly or indirectly his financial interest or the interest of any member of his household, he should follow the recusal procedures outlined in DC Official Code §1-1106.01(g) noted above and remove or disqualify himself from official action.

The foregoing is an Interpretative Opinion of the Director of the Office of Campaign Finance. Pursuant to D.C. Official Code §1-1103.05, you are entitled to request an Advisory Opinion from the Board of Elections and Ethics on this transaction or activity.

Should you have any additional questions, please contact William O. SanFord, Senior Staff Attorney at (202) 671-0550.

Sincerely,


Cecily E. Collier-Montgomery
Director

cc: Kathy S. Williams
General Counsel

William O. SanFord
Senior Staff Attorney