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Interpretative Opinion 03-11: Conflict of Interest

May 9, 2003

Charlotte Brookins-Hudson
General Counsel
Council of the District of Columbia
1350 Pennsylvania Avenue, NW. Suite 4
Washington, DC 20004

Re:  Potential Conflict of Interest

This responds to your request for an opinion concerning whether the participation by Chairman Linda W. Cropp in a vote on PR15-137, Board of Zoning Adjustment RuthAnne G. Miller Confirmation Resolution of 2003, would pose a conflict of interest..  You cite the following facts as relevant to the request:

(a) The spouse of Mrs. RuthAnne G. Miller is employed as Counsel to the Committee of the Whole;
(b) Chairman Linda W. Cropp chairs the Committee of the Whole;
(c) Pursuant to Counsel Rule 231(d), the Committee of the Whole has oversight of  the Board of Zoning Adjustment;
(d) Members of the Board of Zoning Adjustment (“BZA”) receive a stipend in the amount of $25 for each meeting, not to exceed $12,000 per year;
(e) Chairman Cropp is not related to Mrs. Miller;
(f) Chairman Cropp would not derive any financial benefit, either directly or indirectly from the stipend to be received by Mrs. Miller as a Member of the BZA.

As a general rule, a conflict of interest occurs when a public official uses his/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 DC 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 DC Official Code § 1-1106.01(i)(2).

DC 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.”

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.”  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 Chairman Cropp’s ability to participate in a vote on her confirmation to the Board of Zoning Adjustment. Despite the fact that Chairman Cropp chairs the committee that the proposed appointee’s spouse is employed by, there is no indication that Chairman Cropp will inure any financial benefit from the appointment of Mrs. Miller.

Therefore, it is the opinion of the Office of Campaign Finance that the participation of Chairman Cropp in a vote on PR15-137, Board of Zoning Adjustment RuthAnne G. Miller Confirmation Resolution of 2003 would not pose a conflict of interest.