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Interpretative Opinion 03-18: Conflict of Interest

September 11, 2003

Peter B. Feather
1882 Columbia Road NW, Unit #301
Washington, DC 20009

Re: Conflict of Interest

Dear Mr. Feather:

This responds to your request for an opinion concerning whether a potential conflict of interest would exist if you become a citizen member of the Alcohol Beverage Control Board (ABC) in view of your association with several community organizations in the District of Columbia.

Specifically, you stated that you currently serve as Secretary of the Kalorama Citizens Association, you attend regular meetings of the Adams Morgan Community Association, you are also an ex officio member of the Board of Directors of the Adams Morgan Business and Professional Association, and you actively participate in additional organizations which include the Adams Morgan Main Street, Friends of Kalorama Park and Service Corps of Retired Executives.

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 § 1-1106.01(e) provides that “[n]o public official shall use or disclose confidential information given in the course of or by reason of his or her official position or activities in any way that could result in financial gain for himself or herself or for any other person”.

Additionally, pursuant to DC Official Code § 1-618.01(a), the Standards of Conduct prohibit employees from engaging in activity that might result in, or create the appearance of using public office for private gain.

18 U.S.C. § 208 restricts District employees from participating personally and substantially in government matters requiring decision-making and/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, including members of the Council. 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.” Further, 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 casual 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.

Based upon your representations herein, it would appear that your involvement in the above referenced organizations and your service on the ABC would not, in and of itself, present a conflict of interest because the provisions of DC Official Code §§ 1-1106.1(b) and (e) and 18 U.S. C. § 208 would not prohibit you as a public official from participating in community groups, as long as you do not use your official position to obtain financial gain for yourself, or any group with which you are affiliated and do not disclose confidential information provided to you in connection with your official duties.

Nonetheless, you are reminded that if you are presented with a situation as a member of the ABC in which you are required to take an action or make a decision that would affect directly or indirectly your financial interest or the interest of any group with whom you are involved, you should follow the recusal procedures outlined in DC Official Code §1-1106.01(g) or remove or disqualify yourself from official action.