October 01, 2004
Commissioner Josh Gibson
Advisory Neighborhood Commissioner
Single Member District 1C07
2305 18th Street NW, #305
Washington, DC 20009
Dear Commissioner Gibson:
This responds to your request for an opinion concerning whether a potential conflict of interest would exist if you accept a position as the Executive Director of a non profit Adams Morgan Partnership (AMP) which is seeking to establish a Business Improvement District (BID) in Adams Morgan that will be governed by a board of directors and managed by the Executive Director, in view of the fact that you currently serve as an Advisory Neighborhood Commissioner (ANC) for Single Member District (SMD) 1C07 in Adams Morgan. You indicated that as Executive Director of the AMP, you would be working to create the BID. You also described several scenarios that could unfold subsequent to the creation of the BID and inquire regarding the potential for conflicts arising from your dual role as Executive Director of the BID and ANC.
Specifically, you ask whether there is an inherent conflict of interest between you being an ANC and holding the job of Executive Director of AMP and/or the Adams Morgan BID. Additionally, you ask whether you should recuse yourself during any vote that impacts on matters which could be linked to your salary as Executive Director of the AMP and/or the BID.
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(e) provides that “[n]o public official shall use or disclose confidential information given in the course of or by reason of his or her official position or activities in any way that could result in financial gain for himself or herself or for any other person”.
D.C. Official Code § 1-1106.01(i) (2) defines the term “business” as “any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock, trust, and any legal entity through which business is conducted for profit.”
D.C. Official Code § 1-1106.01(i) (3) defines the term “business with which he or she is associated” as “any business of which the person or member of his or her household is director, officer, owner, employee, or holder of stock worth $1000 or more at fair market value, and any business which is a client of that person.”
D.C. Official Code § 1-1106.02 (i) (2) states that “[m]embers of Advisory Neighborhood Commissions shall be covered under the conflict of interest provisions of § 1-1106.01”.
Based upon your representations herein, it would appear that your employment as Executive Director of AMP and/or the Adams Morgan BID, and your position as an ANC for SMD 1C07 in Adams Morgan, would not present a conflict of interest because the AMP is a “non profit”, a legal entity through which business is not conducted for profit. Therefore, the AMP does not fall within the definition of “business”, pursuant to the Act. Notwithstanding, for your information, please be advised that public officials are prohibited from disclosing confidential information received in their official capacity in a manner that produces a financial benefit for themselves or others.
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.