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Interpretative Opinion 09-02: Conflict of Interest

January 26, 2009

Lucy Eldridge
Advisory Neighborhood Commissioner
Single Member District 3E04
4104 Legation Street, N.W.
Washington, D.C. 20015

Re: Conflict of Interest

Dear Commissioner Eldridge:

This responds to your request for an opinion concerning whether a potential conflict of interest would exist if you participate in an Advisory Neighborhood Commission (ANC) 2B vote on whether to recommend that the Board of Zoning approve a special exemption to increase the enrollment cap in the Georgetown Day School (GDS) High School from 465 to 500 students.

You indicated that you currently have a son who attends the third grade in the lower school at GDS, which is located on a different campus in a different ANC. You also indicated that you have a younger son who has applied to kindergarten class for this coming fall who could benefit from what you referred to as a “sibling preference” which provides an admission preference to qualified siblings of current GDS students. You additionally stated that you hold no official position at the school; nor do you have any financial interest in the school.

Specifically, you ask whether the above referenced circumstances would disqualify you from voting on the affected matter before the ANC.

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 official 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(h)(3) states that a “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 $1,000 or more at fair market value, and any business which is a client of that person.”

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 your representations herein, it would appear that your participation in the vote on the proposed increase in the enrollment cap of GDS High School would not present a conflict of interest. Notwithstanding that one of your children is in the lower school at GDS and your younger child is in the applicant pool for the GDS kindergarten class, there does not appear to be any indication that an increase in the enrollment in the GDS High School will directly or indirectly affect your financial interest or those of a member of your household, pursuant to D.C. Official Code §1-1106.01(b). Moreover, it would be purely speculative to surmise on the ruminations of the members of the GDS administration and their designs for future, if any, tuition changes at the GDS High School and the effect, if at all, on your children.

Finally, the circumstance that the GDS admissions policy to provide a “sibling preference” may favorably affect you, if your younger child qualifies for the GDS kindergarten class in the fall, does not serve to provide you with any financial gain. GDS is not a business with which you are associated inasmuch as you are, as one paying tuition thereto, a “client” of GDS, contra to D.C. Official Code §1-1106(h)(3).

Accordingly, you would not be prohibited from voting under the provisions of D.C. Official Code § 1-1106.01(b) nor would your recusal from voting be required in accordance with D.C. Official Code § 1-1106.01(g).

Therefore, based upon the information you have provided, it is the opinion of the Office of Campaign Finance that participating in the vote on the proposed increase in the enrollment cap at GDS High School from 465 to 500 students would not violate the District of Columbia Campaign Finance Reform and Conflict of Interest Act.

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.