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Interpretative Opinion 97-05: Conflict of Interest

August 15, 1997
 

John Ray, Esq.
Manatt, Phelps & Phillips, LLP
1501 M Street, NW
Suite 700
Washington, DC  20005-1702

Re: Post-Employment Conflicts of Interest

Dear Mr. Ray:

Please accept my sincere apologies for the delay in responding to your request for an opinion concerning [hypothetical] post-employment conflict of interest issues raised in your letter dated April 29, 1997, and your earlier letter dated March 24, 1997.  However, you should be reminded that 18 D.P.M. § 1814.3 provides that “[q]uestions regarding application of 18 U.S.C. §207, 5 C.F.R. Part 737, or these regulations . . . should pertain to “ specific factual circumstances” . . . “.  (emphasis added).  Consequently, rather than expediting an opinion as per your request, we have taken the time to conduct an extensive, independent review of the subject matter to ensure that our reply reflects a thorough  analysis of relevant federal and local laws and regulations to assure a dispositive  response to each question.  Notwithstanding the absence of  “specific factual circumstances”, the Office of Campaign Finance (OCF) herein provides  the following guidance concerning the issues presented.

In your March letter, you inquire concerning whether you are allowed to act as an attorney, agent, or representative on behalf of another person before the City Council regarding “a particular government matter involving a specific party” which was never pending before the City Council at any time during your tenure on the Council.  For purposes of 18 U.S.C. § 207, a matter “pending” under a former employee’s official responsibility is one which in fact was referred to or under consideration by the former employee.  Therefore, if “a particular government matter involving a specific party” was never referred to you for official consideration or action during your tenure on the Council, you are not restricted from acting as an attorney, agent or in a representational capacity before the Council on such a matter.

With respect to your April 29, 1997 letter, you inquire concerning the following.  First, you ask whether the prohibitions that apply permanently, and those that apply for two years following employment, prohibit a former Councilmember’s representations before all District government agencies, or only representations before the Council.  A qualified affirmative response is appropriate here.  In our view, and in the view of the federal Office of Government Ethics (OGE), it is clear that it was not the intent of the United States Congress to except the District of Columbia Council from the provisions of 18 U.S.C. § 207.  Consequently, the post-employment conduct of former members of the District of Columbia Council is governed by this statute and its implementing regulations.  The permanent prohibitions [on certain post-employment activities] cited in 18 D.P.M. §§ 1815.4 and 1814.5 restrict former government employees, including members of the Council, from acting in a representational capacity in any formal or informal appearance before a District of Columbia agency with respect to “a particular government matter involving a specific party if the employee participated personally and substantially in that matter  as a government employee. “   18 DPM §§ 1814.6  and  1814.7  restrict for two years the representational activities of a former government employee before any government agency in a formal or informal capacity  as to a particular government matter involving a specific party if the employee had official responsibility for that matter. While the scope of involvement of members of the District of Columbia Council in the affairs of the District of Columbia government is indeed broad and far-reaching, there are conceivably many instances in which a Councilmember’s involvement may be only peripheral, thereby negating the application of either the permanent or two-year bar.  However, this determination can only be made on a case by case basis, where a factual matter is presented involving a specific party.

Second, you inquire concerning  whether a particular government matter involving a specific party, from which a Councilmember recuses himself or herself, qualifies as one in which a Councilmember participates “personally and substantially”, or is treated as a matter that was under his or her “official responsibility.”  The term, “official responsibility” is defined in 18 D.P.M. § 1899 as “the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, personally or through subordinates, to approve, disapprove, or otherwise direct governmental action.”  According to 5 C.F.R. §2637.201(d), to participate “personally and substantially” in a matter requires “more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.”  As you are aware,  DC Code § 1-1461 and 3 DCM.R. § 3201 provide a mechanism through which a public official of the District of Columbia may remove himself or herself from influence over a matter requiring  the  public  official’s  action  or  decision  where the matter presents either an actual or potential conflict of interest.  Under these circumstances, such a matter would be treated as one under a public official’s “official responsibility”, where the public official  removed himself or herself from participating “personally and substantially” through the official exercise of appropriate, statutory recusal procedures.

Third, you inquire concerning the extent to which you may make representations to the Council regarding legislation of general applicability as distinguished from legislation involving a specific party.  Pursuant to 18 U.S.C. § 207 (a)(1), communications or representations to the Council on matters concerning a particular matter, i.e,. legislation in this instance, would not be prohibited unless the particular matter involved a specific party, and the former employee participated personally and substantially.

Fourth, you ask what prohibitions, if any, apply to a former Councilmember in making representations to the Council and other DC Government agencies on behalf of an organization to which the former Councilmember belongs as a member or officer, when there is no compensation for these services.  More specifically, you ask whether an appearance or a communication in your capacity as a member or official of an organization, and not as an attorney for such organization, may be considered self-representational.  18 U.S.C. § 207 does not bar or restrict self-representation before  the DC Government when contrasted with, for example,  representation of a corporation,  consulting firm or other specific entity.  However, when one makes an appearance or communication in an official capacity, i.e., as a member or officer of an organization, such communication cannot be considered to be self-representational, but rather on behalf of an  organization, even where common views are shared by one personally as well as with the entity represented.  By comparison, your attention is directed to DC Code § 1-1451(7)(B)(I), where the term, “lobbying”, does not include “[t]he appearance or presentation of written testimony by a person in his or her own behalf . . .”.

Fifth, your concern is whether, in circumstances where you are barred from making representations [directly] to the Council, you are permitted to advise a law partner or client regarding his or her own representations to the Council.  Pursuant to 18 U.S.C. § 207(a)(1), a former employee is not prohibited from providing “behind the scenes” assistance in connection with the representation of another person.  Further, the restriction applies only to those communications and appearances that are made “with the intent to influence.”  Therefore, you may provide advice to a law partner or a client with respect to his or her own representations to the Council.

Finally, you ask if any restrictions apply to a former Councilmember’s representations before the District of Columbia Financial Responsibility and Management Assistance Authority (Authority), and whether the Authority is an “agency” of the District of Columbia for purposes of 18 D.P.M. § 1814.  Pursuant to the District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub. L. No. 104-8, § 101(a), 109 Stat. 97, the Authority “is established as an entity within the government of the District of Columbia, and is not established as a department, agency, establishment or instrumentality of the United States Government.”  The term, “agency”, is defined in 18 D.P.M. § 1814.1 as “any unit of the District of Columbia government required by law, by the Mayor of the District of Columbia, or by the Council of the District of Columbia to administer any law, rule, or any regulation adopted under authority of law.”  Therefore, as an entity established by federal law  to administer certain laws and regulations pertaining to District budget reforms, the Authority, in our view, is an “agency” of the District of Columbia government for purposes of 18 D.P.M. §§ 1814 et seq.