July 3, 2003
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 a potential conflict of interest exists for a member of the Council to participate in an investigatory hearing of the Council where one of the witnesses subpoenaed by a Council subcommittee has retained the services of a private law firm where that Member is associated
Specifically, you noted that the Member of the Council is not a member of the subcommittee, which is conducting the investigatory hearing, but he is allowed to ask questions of witnesses who appear at the hearing. You further state that the Council member will not receive any of the fees the witness may pay to the Firm and thus will not derive any financial gain from the representation of a Council witness by the Firm.
DC Official Code § 1-1106.01(b) (2001Edition) 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(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.”
DC Official Code § 1-1106.01(h) provides, “[n]either the Mayor nor any member of the Council of the District of Columbia may represent another person before any regulatory agency or court of the District of Columbia while serving in such office. The preceding sentence does not apply to an appearance by such an official before any such agency or court in his or her official capacity or to the appearance by a member of the Council (not the Chairman) licensed to practice law in the District of Columbia before any court or non-District of Columbia regulatory agency in any matter which does not affect his or her official position.”
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 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.
Moreover, 18 U.S.C. § 205(b) prohibits District Government employees from acting as agent or attorney for person before District Government agencies.
Based upon your representations herein, it would appear that the Council member’s participation in an investigatory hearing of the Council would not present a conflict of interest as long as neither the Council member nor his Firm derives any financial benefit from his official action.
Therefore, it is the opinion of the Office of Campaign Finance that the Council member would be required to follow the recusal procedures outlined in DC Official Code §1-1106.01(g) or remove or disqualify himself from official action on matters before the Council that involve his law firm or any of the Firm’s clients only where there is a direct and predictable effect on his financial interest or that of the Firm. The Council member should make such determinations on a case by case basis.