December 31, 2008
Brian K. Flowers
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Re: Potential Conflict of Interest
Dear Mr. Flowers:
This responds to your request for an opinion concerning whether the appointment of the spouse of an employee of the Committee of the Whole as the Director of the Office of Zoning, would pose a conflict of interest. You cite the following facts as relevant to the request:
(a) The employee is employed as Counsel to the Committee of the Whole;
(b) Pursuant to Counsel Rule 231(d), the Committee of the Whole has oversight of the Office of Zoning;
(c) The Director of the Office of Zoning is appointed by the District members of the Zoning Commission;
(d) The council employee does not participate in any votes or deliberations concerning the Office of Zoning.
As a general rule, a conflict of interest occurs when a public official uses his or her official position to obtain financial gain on his or her behalf for a member of his or her household or a business with which he or she is associated.
In the context of the Conflict of Interest Statute, the term “household” means “the public official and his or her immediate family”. See D.C. Official Code § 1-1106.01(i) (4).
The term “business” means “any corporation, partnership, sole proprietorship, firm … and any legal entity through which business is conducted for profit”. See D.C. Official Code § 1-1106.01(i) (2).
D.C. Official Code § 1-1106.01(f) provides that “[n]o member or employee of the Council of the District of Columbia … shall accept an assignment to serve on a committee the jurisdiction of which consist of matters (other than of a de minimis nature)
in which he or she or a member of his family or a business with which he or she is associated, has financial interest.”
The affected federal statute, 18 U.S.C. § 208, restricts District employees from participating personally and substantially in government matters requiring decision-making or advice when, to their knowledge, they have a direct or indirect financial interest in the matter. This restriction also extends to District government officials. The federal statute, pursuant to 5 CFR § 2640.03, which implements 18 U.S.C. § 208, an employee’s participation is personal and substantial when he or she directly takes part in the matter, and his or her involvement is “of significance to the matter.” In addition, an employee is prohibited from participating in an official capacity in a matter in which he or she has a financial interest “if the particular matter will have a direct and predictable effect on the interest.” The standard for determining a direct financial interest is whether there is a “close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest.” A predictable effect is found where there is a real, rather than speculative, possibility that the matter will affect the financial interest.
The fact that the proposed appointee is the spouse of an employee of the Council Committee of the Whole does not appear to compromise the employee’s ability to continue to serve in his capacity as Counsel to the Committee, or his spouse’s ability to serve as Director of the Office of Zoning. Moreover, you point out that the council employee does not participate in any vote or deliberations concerning the Office of Zoning.
Notwithstanding, the employee should be reminded to reject any assignment to an affected Council Committee pertaining to his spouse’s agency. In my opinion, any service pertaining to the committee of the Whole would be of de minimis nature. Yet, if required to contribute to any discussion or assignment that may directly effect his spouse, the employee must seek recusal in accordance with D.C. Official Code § 1-1106.01(g) In view of the fact that the employee is not a Member of the Council, he is not in a position to take any action or make any decision that would influence the appointment or continued employment of his spouse.
Therefore, it is the opinion of the Office of Campaign Finance that the appointment of the spouse of an employee of the Council Committee of the Whole as Director of the Office of Zoning by members of the Zoning Commission would not pose a conflict of interest.
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.