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Interpretative Opinion 05-02: Conflict of Interest

February 09, 2005

Advisory Neighborhood Commissioner Mark Bjorge
Advisory Neighborhood Commission 2B
Single Member District 2B05
1415 17th Street, N.W., No. 2
Washington, DC 20036

Dear Commissioner Bjorge:

This responds to your request for an opinion concerning whether a potential conflict of interest would exist if you fail to participate in an Advisory Neighborhood Commission (ANC) 2B vote on whether to approve a proposal to expand current boundaries of the DuPont Circle Historic District to encompass an additional 118 buildings.

You indicated that the Single Member District (SMD) you represent contains several blocks which would be included in the expanded historic district and the majority of your constituents are opposed to the proposal. You also stated that as the owner/resident of a building that is located in the proposed expanded district, you are also opposed to the proposal.

Specifically, you ask whether there is an inherent conflict of interest between your interest as a property owner in the affected area and your ethical obligations as an ANC even though you believe your opposition to the proposal is consistent with the views of the majority of those in your SMD. Additionally, you stated that it has been asserted that you are ethically conflicted and should recuse yourself during the vote on this matter.

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…”.

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…”

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 you are apparently a member of a class which will be affected by the outcome of the vote, in accordance with D.C. Official Code § 1-1106.01(b). However, the matter described herein does not appear to require you to recuse yourself as prescribed by D.C. Official Code §1-1106.01(g), because the effect of the possible implementation of the proposal on your financial interest as an owner/resident is not immediately foreseeable. Given the vagaries of the housing market in the District of Columbia, it is questionable whether you will benefit from what currently is a “proposal.” In fact, the economic analyses which you commissioned and submitted with your request for an interpretative opinion indicate that you will not benefit from the proposal. Consequently, any financial benefit you could realize as a result of the outcome of any vote on this proposal would be purely speculative. Therefore, you would not be prohibited from voting on the proposed expansion of the DuPont Circle Historic District under the provisions of DC Official Code § 1-1106.01(b); and, your participation in the vote would not present a conflict of interest under 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.