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Interpretative Opinion 03-03: Conflict of Interest

April 4, 2003

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

Re:  Conflict of Interest

This responds to your request for an opinion concerning the propriety of a member of the council assigning a member of his staff (who is an attorney) to assist certain constituents who cannot afford legal representation in drafting by-laws and Articles of Incorporation for the creation of an organization which will later seek to do business with the District of Columbia government.

DC Official Code §1-618.01(a) (2001 Edition) provides that “each employee of the District government must at all times maintain a high level of ethical conduct in connection with the performance of official duties, and shall refrain from taking, ordering, or participating in any official action which would adversely affect the confidence of the public in the integrity of the District government”.

District Personnel Manual (DPM) §§ 1804.1(b), (c) and (e), provide that “an employee may not engage in any outside employment or activity which is not compatible with the full and proper discharge of his or her duties and responsibilities as a government employee, activities or actions which are not compatible with government employment includes, but are not limited to, the following:  (b) Using government time and services for other than official business; (c) Ordering, directing, or requesting subordinates officers or employees to perform during regular working hours any personal services not related to official DC government functions and activities; (e) Engaging in any outside employment, private business activity or interest which permits and employee, or others to capitalize on his or her official position.

DPM §1806.1 provides that “a District employee shall not use or permit the use of government property, equipment, or material of any kind … for other than officially approved purposes.”

In view of the fact that the primary responsibilities of both the Councilmember and the member of his staff whom he is considering assigning the task of preparing Articles of Incorporation and by-laws in addition to reviewing other legal documents for a non-government entity are the affairs of the government of the District of Columbia, the engagement of the staff member for purposes that you have described would create a clear conflict of interest.  Despite the fact that the Councilmember might have the most altruistic motives for attempting to assist his constituents in establishing an organization that will seek to do business with the District, the activity you have described would be in violation of all of the above referenced provisions of the DC Official Code and the DPM.

The reasons why this activity would be prohibited should be apparent.  Specifically the staff member would be placed in a predicament that could result in divided loyalties when the interests of the District and the interests of the organization he or she helped develop diverge.

Moreover, the relationship between the Councilmember, the staff member and the organization would compromise both the staff member and the Councilmember because the Councilmember would have ordered, directed or requested a subordinate to engage in outside employment of private business activity or actions that are not compatible with his or her government employment in violation of DPM §§1804.1(c) and (e).  Additionally, the official relationship the staff member would establish with the organization as a “legal advisor” would appear to conflict with the fair, impartial and objective performance of his or her official duties as a government employee and thereby adversely affect the confidence of the public in the integrity of the District Government in violation of DC Official Code §1-618.01(a).

Regarding your concerns about the employee engaging in the activity during working hours, such activity would flagrantly violate DPM §1804.1(b), which prohibits using government time and services for other than official business.
Therefore, based upon the information you have provided, it is the opinion of the Office of Campaign Finance that the assignment of a staff member by a Councilmember to serve as a “legal advisor” of an organization of constituents for the purpose of drafting Articles of Incorporation and by-laws would violate both the statute and the Standard of Conduct.