October 7, 1999
 

Charlotte Brookins-Hudson, General Counsel
Council of the District of Columbia
Office of the General Counsel
Washington, DC  20004

Re: Conflict of Interest – Councilmember Vincent Orange

Dear Ms. Brookins-Hudson:

This responds to your request for an opinion concerning whether the participation of Councilmember Vincent Orange as co-Chairman of the Council Special Committee on Special Education presents a conflict of interest.  You state that Council Resolution 13-113 established a Special Education Program Investigation Special Committee (Special Committee) to investigate, inter alia, systematic flaws in the delivery of special education services, spending patterns, pervasive mismanagement of funds and programs, and the failure of the District of Columbia Public Schools (DCPS) to timely assess and place students.  You further state the following:  (1) the spouse of Councilmember Orange is employed as a Special Education teacher by the DCPS; (2) there is no legislation pending in the Council pertaining to special education; (3) Mr. Orange is employed as Chief Financial Officer of the National Children’s Center; and (4) there is no legislation in the Council that would directly benefit the National Children’s Center in the February 2, 1999 legislative session.

  DC Code § 1-1461(b) states, “[n]o public official shall use his or her 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 a member of his or her household is associated, 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 . . .”.

  DC Code § 1-1461(f) provides, “[n]o member or employee of the Council of the District of Columbia . . . shall accept assignment to serve on a committee the jurisdiction of which consists of matters (other than of a de minimis nature) in which he or she or a member of his or her family or a business with which he or she is associated, has a financial interest.”

18 U.S.C. §208 further restricts District employees from participating personally and substantially in government matters requiring decision-making and/or advice when, to their knowledge, they have a direct or indirect financial interest in the matter. (emphasis added).  This federal statute has had longstanding applicability to officers and employees, including members of the Council, of the District of Columbia.  Pursuant to its implementing regulations at 5 CFR § 2640.103, an employee’s participation is personal and substantial when he or she directly takes part in the matter, and his or her involvement is of “significance to the matter.”  Further, an employee is prohibited from participating in an official capacity in a matter in which he or she has a financial interest, “if the particular matter will have a direct and predictable effect on the interest.”  The test for direct financial interest is whether there is a “close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest.”  A predictable effect is found where there is real, rather than speculative, possibility that the matter will affect the financial interest.

Based on our review of the Resolution referenced herein, the Fact Sheet developed by the National Children’s Center, and your representations concerning Councilmember Orange’s role relative to the Special Committee, the disclosure of his  employment with the National Children’s Center and that of his spouse with DSPS, it appears that Councilmember Orange’s participation as a presiding official over the Special Committee would not present a conflict of interest.  Since the mission of the Special Committee requires it to investigate, take testimony, hold public hearings, and report its findings relative to the status of special education programs in the DSPS, there is no apparent financial gain that would inure to the direct benefit of Councilmember Orange, his spouse, or to the National Children’s Center.  Further, any indirect financial benefit would be speculative at best.