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Interpretative Opinion 10-07: Conflict of Interest

December 07, 2010

Brian K. Flowers, Esq.
General Counsel
Council of the District of Columbia
1350 Pennsylvania Avenue, NW, Suite 4
Washington, DC 20004

Re: Serving as Chairman of the Fundraising Subcommittee for Rail-Volution 2011

Dear Mr. Flowers:

This responds to your request for an opinion regarding whether a member of the Council may chair a fundraising committee for a national nonprofit organization that has scheduled a conference for November 9-12, 2011. You indicated that the Fundraising Subcommittee’s responsibilities include raising funds necessary for the conference reception, local scholarships, and marketing and promotional items. You also stated that chair’s responsibilities include:

1. Coordinating with steering committee to develop a fundraising goal and supporting strategies;

2. Soliciting donations from businesses, jurisdictions, etc;

3. Creating sponsor acknowledgment packages;

4. Collaborating with other committees as funding needs arise; and

5. Working with local transit agencies to provide participants with free transit passes.

D.C. 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(h)(2) defines “business” to mean “… 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.”

Based upon the information you have provided it appears that the councilmember will engage in the solicitation of funds on behalf of a non-profit charitable organization from which the Councilmember does not stand to gain from financially.

However, because you indicated that the responsibilities include participation in fundraising efforts for Rail-Volution, it would not be advisable for the Councilmember to use his official Government letterhead, stationery, emails, telephones or any government resources to solicit on behalf of the organization. D.C. Official Code §2-706(c) (the “Official Correspondence Act”) prohibits elected officials from using official mail to solicit directly or indirectly funds for any purpose (emphasis added). Notwithstanding the prohibition against the councilmember using his official mail, there does not appear to be any provision that would prevent him from using his personal stationery, email, telephone or listserve to solicit contributions to the group.

DPM § 1803.1 (a) 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:

"(1) Using public office for private gain;

"(2) Giving preferential treatment to any person;

"(3) Impeding government efficiency or economy;

"(4) Losing complete independence or impartiality;

"(5) Making a government decision outside official channels; or

"(6) Affecting adversely the confidence of the public in the integrity of government.”

DPM § 1806.1 provides that “[a] District employee shall not use or permit the use of government property, equipment, or material of any kind, including that acquired through lease, for other than officially approved purposes. An employee has a positive duty to protect and conserve government property, including such equipment, supplies, materials, and other items as may be issued or entrusted to him or her.”

DPM § 1806.1(c) provides that “[t]he use of government facilities or equipment under circumstances which do not increase the maintenance cost of such resources; for example, the use of existing library materials or government-purchased books is not prohibited.”

DPM § 1804.1 provides that “[a]n employee may not engage in any outside employment or other activity which is not compatible with the full and proper discharge of his or her duties and responsibilities as a government employee. Activities or actions which are not compatible with government employment include, but are not limited to, the following;

“(e) Engaging in any outside employment, private business activity, or interest which permits an employee, or others, to capitalize on his or her official title or position.”

The District of Columbia conflict of interest statute prohibits a public official from using his or her official position for personal financial gain. Moreover, the Employee Conduct Regulations, applicable to the Council, require employees to avoid activities, which could create an appearance of using public office for private gain. However, in view of the fact that the Rail-Volution is a non-profit charitable organization, there does not appear to be any basis upon which it could be inferred that the Councilmember would be promoting a business as defined in the statute which he is associated with for financial gain.

Thus, it cannot be presumed that the Councilmember’s participation in the fundraising for the Rail-Volution 2011 conference is incompatible with his government employment.

Accordingly, the Councilmember’s participation would be comparable to the conditions under which the Mayor is allowed to engage in charitable fundraising.

DPM § 1803.13 provides that “[n]othing contained in these regulations shall preclude the Mayor from serving as an honorary member of a nonprofit entity’s fundraising event, so long as the entity for which the funds are raised supports a nongovernmental bona fide charitable activity benefiting the District of Columbia. Use of the Mayor’s name or title in fundraising solicitations or announcements of general circulations shall be in accordance with such terms and limitations as the Mayor may prescribe by Mayor’s order or by direction in particular cases.”

While the above referenced provision does not specifically address whether Councilmembers are permitted to engage in similar activity, when they participate in public service events that promote the general welfare of the residents of the District of Columbia, their involvement may be analogized to the Mayor’s charitable fundraising privileges which suggest that the use of his or her title is permissible, within limitations.

Therefore, based upon the information you have provided, it is the opinion of the Office of Campaign Finance that the Councilmember would not violate the District of Columbia Campaign Finance Reform and Conflict of Interest Act by serving as chair of the Fundraising Subcommittee for Rail-Volution 2011 as long as his activity does not extend beyond the parameters outlined above.

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, General Counsel, at (202) 671-0550.