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Interpretative Opinion 10-05: Conflict of Interest

June 01, 2010

Commissioner Matthew Frumin
Chairperson - ANC 3E(02)
4709 Albemarle Street, NW
Washington, DC 20016

Re: Potential Conflict of Interest

Dear Commissioner Frumin:

This responds to your request for an opinion concerning whether the fact, that your wife who holds a position as a Program Manager for the Osher Lifelong Learning Institute (OLLI) which rents office space from American University (AU), would pose a potential conflict of interest for you if you as an Advisory Neighborhood Commissioner are required to vote on an AU 2011 Campus Plan when it is reviewed by the entire Advisory Neighborhood Commission (ANC). You cite the following facts as relevant to the request:

(a) Your wife is not an AU employee and does not receive any compensation from the university;

(b) OLLI at AU is funded by tuition from members as well as a grant from the Osher Foundation which is held in an AU endowment account that AU disburses as specified by the Osher Foundation; and

(c) You are comfortable that your wife’s relationship to OLLI and OLLI’s relationship to AU would not have an effect on your ability to be objective about the AU 2011Campus Plan.

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(g) requires recusal by public officials when “[a]ny public official who, in the discharge of his or her duties would be required to take an action or make a decision that would affect directly or indirectly his or her financial interest or those of a member of his or her household, or a business with which he or she is associated or must take an official action on a matter as to which he or she has a conflict situation created by a personal, family or client interest…”

D.C. Official Code § 1-1106.01(h)(3) states that business with which [one is] associated includes “any business of which the person or member of his or her household is a 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 § 1-1106.01(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.”

Finally, 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 the information you have provided, it does not appear that your participation in a vote or activity related to the AU Campus Plan which might come before your ANC will violate District law. Thus, as an Advisory Neighborhood Commissioner, you may participate in discussions relating to the AU Campus Plan and also vote on an AU 2011 Campus Plan. The fact that your wife’s employer rents space from AU does not confer a financial interest in the outcome of an AU proposal that might require approval by your ANC on a member of your household.

Nonetheless, you are reminded that if you are presented with a situation as an Advisory Neighborhood Commissioner in which you are required to take an action or make a decision that would affect directly or indirectly your financial interest or that of a member of your household, you should follow the recusal provisions outlined in D.C. Official Code § 1-1106.01(g) or remove yourself from official action.

Should you have any additional questions, please contact William O. SanFord, Senior Staff Attorney at (202) 671-0550.