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Interpretative Opinion 98-01: Conflict of Interest

February 20, 1998
 

Charlotte Brookins-Hudson, General Counsel
Council of the District of Columbia
One Judiciary Square
441 Fourth Street, NW
Washington, DC  20004

Re: Conflict of Interest

Dear Ms. Brookins-Hudson:

This responds to your request for an opinion, on behalf of Councilmember Charlene Drew Jarvis, concerning certain proposed activities to secure grant funding from District of Columbia Government agencies for Southeastern University (University), where Ms. Jarvis currently serves as President.  You state that the University has submitted an application to the DC Department of Housing and Community Development (DHCD) for an award of a Community Development Block Grant for the development of a project in the District.  Moreover, you state that Ms. Jarvis has been selected to serve as an “observer” to the actions of a panel, of which Ms. Jarvis is not a member, who will make a preliminary determination concerning the University’s eligibility for an award.  In addition, you state the following: (1) that the final determiner of the award is the Director of DHCD; (2) that Ms. Jarvis chairs the DC Council subcommittee which has oversight responsibility for DHCD; and (3) that the District of Columbia Council has no involvement in the process whereby grants are awarded.

  DC Code § 1-1461(b) states in pertinent part, “[n]o public official shall use his or her official position or office to obtain financial gain for . . . any business with which he or she . . . is associated . . .”.   The term, “business with which he or she is associated”, is defined in DC Code § 1-1461(i)(3) to mean “any business of which the person . . . is a director or officer . . .”.  Further, DC Code § 1-1461(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 interests or those of . . . a business with which he or she is associated shall: (1) [p]repare 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; and (2)[c]ause copies of such statement to be delivered to the District of Columbia Board of Elections and Ethics . . ., and to  his or her immediate superior, if any . . .”.  3 DCM.R. §3201.2 states, “[a] public official shall remove himself or herself from influence over actions and decisions on the matter on which there is a conflict or potential conflict for the following reasons: (a) [w]henever the public official has reasonable knowledge of any direct or indirect financial interest or gain which is incompatible with the discharge of the public official’s duties; . . .”.

First, this confirms our affirmative oral response relative to Ms. Jarvis’ attendance as an “observer” at the review of the University’s application by panel members on February 7, 1998.  In our view, as an observer, Ms. Jarvis could not use her official position in any way to influence the review process or the final decision on the University’s application as she would have no active role in the discussions, deliberations, voting  or recommendations to the Director (DHCD) concerning the project.  Therefore, we find no [apparent] breach of the conflict of interest statute ( DC Code § 1-1461(b)) in Ms. Jarvis’ participation as an observer at this activity.

Second, notwithstanding your representation that the Council will not be involved [directly] in the process of granting awards to eligible projects, the Council is involved in approving such programs [by resolution], as well as the projected use of funds pursuant to DC Code §5-902(c).  Consequently, the potential for a conflict of interest remains.

DC Code § 1-1461(g) provides a mechanism by which a public official in such circumstances may remove himself or herself from influence over such actions.  This includes the preparation of a written statement, which describes the matter requiring action or decision and the nature of the potential conflict of interest, for delivery to the District of Columbia Board of Elections and Ethics and to his or her immediate superior, if any.  In the case of a member of the Council, this statement should be delivered to the Chairperson of the Council.  Further, 3 DCM.R. §3201.2 requires a public official to  remove himself or herself from influence over matters whenever the public official has reasonable knowledge of any direct or indirect financial interest or gain which is incompatible with official duties.

To conclude,  it is the opinion of the Office of Campaign Finance that Councilmember Jarvis should exercise extreme caution in dealing with matters involving the direct or indirect financial interests of Southeastern University which may require her official participation or action, and should remove herself from influence over such matters.