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Interpretative Opinion 09-05: Conflict of Interest

April 22, 2009

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

Re: Potential Conflict of Interest:

Dear Mr. Flowers:

This responds to your request for an opinion concerning whether there would be a conflict of interest for a Council employee who accepts a stipend from an organization that receives a grant in the Fiscal Year 2009 Budget Support Act of 2008 (D.C. Act 17-219). You cite the following facts as relevant to the request:

(a) The employee is employed in the office of a Ward Councilmember; and

(b) The employee does not exercise any authority over or participate in any votes or deliberations on the budget, and was not otherwise involved in the solicitation or decision to award the grant to the organization.

Pursuant to your initial submission on March 16, 2009, on April 8, 2009, you were requested to provide additional information. On April 20, 2009, we received the information requested. Accordingly, we have provided the following opinion.

DC 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…”

DC Official Code § 1-1106.02 (i) (1) states that public official means any person required to file a financial statement under § 1-1106.02 (persons paid at a grade DS-13 or above).

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.”

In addition, DPM § 1803.2 provides that “… a District government employee shall not solicit or accept, either directly or through the intercession of others, any gift from a prohibited source.

“(c) For the purpose of this section, the following terms shall the meaning ascribed:

“Gift – any gratuity, favor, loan, entertainment, or other like thing of value;

“Prohibited source – any person or entity that:

"(1) Has or is seeking to obtain contractual or other business or financial relation with the District government:

"(2) Conducts operations or activities that are subject to regulation by the District government; or

"(3) Has an interest that may be favorably affected by the performance or non-performance of the employee’s official responsibilities.”

Stipend is defined as “salary.” Black’s Law Dictionary 1268 (5th Ed. 1979).

Based upon the information you have provided, it does not appear that the acceptance of a stipend for services rendered to a third party by a Council employee would violate any of the above referenced provisions. Inasmuch as you aver that the employee exercised no authority or influence over the vote, this would negate any allegation that the employee may have used his or her influence for an organization with which he or she is affiliated. Moreover, the fact that the stipend will presumably be paid by a third party for services that are not remotely connected to the employee’s official duties as a staff person in a Council member’s office, the potential for a conflict of interest does not exist.

Furthermore, it appears that acceptance of the stipend by a Council employee from an organization that received a grant from the District government would not contravene the cited provisions of DPM § 1803 (Standards of Conduct) because the organization, and not the employee, received the grant. Also, the employee would not be receiving a gift, but a stipend, for services to the organization.

Therefore, it is the opinion of the Office of Campaign Finance that the employee would not violate the District of Columbia Campaign Finance Reform and Conflict of Interest Act by accepting a stipend for services unrelated to his or her Council duties he or she provides to an organization that received a grant from the District of Columbia government.

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, Senior Staff Attorney at (202) 671-0550.