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Interpretative Opinion 09-03: Solicitation of Funds

March 10, 2009

The Honorable Mary M. Cheh
Councilmember, Ward 3
Council of the District of Columbia
1350 Pennsylvania Avenue, NW, Suite 108
Washington, DC 20004

Re: Solicitation for Support for Donations for the Avon Walk for Breast Cancer

Dear Councilmember Cheh:

This responds to your request for an opinion regarding the manner in which you may solicit donations for the Avon Walk for Breast Cancer (Walk). Specifically you requested formal advice on the following:

1. Whether you may use your title (“Councilmember” or “the Honorable”) for:
-Public Announcements (i.e., press releases, public listserve postings)
-Solicitations for Donations (i.e., letters, emails, phone calls)
-“Sign Up” Events
-Fundraising Events

2. Whether you may use Council stationery/letterhead, and/or email, when soliciting for donations;

3. Whether you may add a link to the Avon Walk “Team Page” to your website;

4. If you are prohibited from using your official title, can you in the alternative mention that you work at the Council or as an official member of the District of Columbia government;

5. Whether other Councilmembers may post and distribute fliers asking to support you; if so, can they use their titles as “Councilmember”;

6. Whether you may place promotional materials for the Walk in your office;

7. May staff member solicit funds for the Walk; and may they do so using their Council email accounts.

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.”

In the instant case, it appears that solicitation of funds will be conducted on behalf of the Avon Walk for Breast Cancer (Walk). Thus, there would be no financial gain for you.

However, because you indicated that you intend to solicit participation in a fundraising effort on behalf of the Walk, if the solicitations are made on official Government letterhead, personal stationery, or by emails, phone calls, listserve posting, it should be noted that D.C. Official Code §2-706(c) (the “Official Correspondence Act”) prohibits an elected official from using official mail to solicit directly or indirectly funds for any purpose (emphasis added). Notwithstanding the prohibition against using your official mail, there does not appear to be any provision that would prevent you from using your personal stationery, email, telephone or listserve to solicit participation in the event.

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 Walk is a fundraiser for a charitable cause, there does not appear to be any basis upon which it could be inferred that you would be promoting a business as defined in the statute with which you are associated for financial gain.

Moreover, it cannot be stated that your participation in the Walk is incompatible with your government employment. In my opinion, the limitations serve to curb a public official from, among other things allowing an outside entity to reap private gain from the official title or position of the public official; and not charitable donations for a nonprofit entity. Accordingly, your 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. In my opinion, the use of your name and title to gain donations for the Walk is not inappropriate.

In reference to your inquiry regarding whether you may add a link to the Avon Walk “Team Page” to your website, if by your website you mean your Council website, linking or connecting a government sponsored website to a non-government entity would be problematic. Under such circumstances one could reasonably construe the “link” as a government endorsement of an event sponsored by a private concern. Consequently, it would not be advisable for you to “link” the “Team Page” to your Council website.

Based upon the information you have provided, it does not appear that Council colleagues who choose to demonstrate their solidarity with you by posting and distributing fliers, asking to support you would be prohibited from using their titles of “Councilmember”. However, in view of the provisions of DPM Official Code § 1806.1 it would not be advisable for you to place promotional materials regarding the “Walk” in your office because, despite your noble intentions, the use of government resources for other than government purposes is a prohibited activity.

Finally, it is not likely that the use of Council email accounts to solicit funds for the “Walk” could be viewed as government activity. Especially, because the accounts are provided by the District government for the exclusive use in government approved purposes, it would not be advisable for staff members to use them for any other purposes.

Therefore, based upon the information you have provided, it is the opinion of the Office of Campaign Finance that you would not violate the District of Columbia Campaign Finance Reform and Conflict of Interest Act by soliciting donations for the Avon Walk for Breast Cancer using your title “Councilmember”, and your personal stationery, email and listserve. Neither would your Council colleagues who choose to support your efforts as long as their 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, Senior Staff Attorney, at (202) 671-0550.