August 29, 2000
Mr. Kerry G. “Kwasi” Holman
1221-4th Street, SW
Washington, DC 20004
Re: Conflict of Interest
Dear Mr. Holman:
This responds to your request for an opinion concerning two distinct issues. First, you state that you are a member of the DC Zoning Commission (DCZC), where jurisdiction over matters concerning campus plans for District of Columbia universities was recently transferred [by vote] from the Board of Zoning Adjustment. Although you did not indicate whether you voted on the transfer issue, you stated that after the vote it occurred to you that a member of the Board of the New York Avenue Development Corporation (Corporation), on which you serve as President, represents Gallaudet University (Gallaudet). You stated orally that the referenced Board member serves as the President of Gallaudet, and is not compensated for his service to the Corporation. By fax transmittal dated August 4, 2000, you stated that your employer, New York Avenue Development Corporation, is a 501 (c )(3) non-profit organization, and that your salary is derived from grants and contracts. The issue here is whether you should recuse yourself from matters “affecting universities in general or Gallaudet University in particular.”
18 DPM § 1800.3, applicable to all District Government employees, states, “[n]o employee of the District government shall engage in outside employment or private business activity or have any direct or indirect financial interest that conflicts or would appear to conflict with the fair, impartial, and objective performance of officially assigned duties and responsibilities. Further, 18 DPM § 1803.1(b) provides, in pertinent part, “[a]n employee shall avoid action, whether or not specifically prohibited by this chapter, which might result in, or create the appearance of . . . giving preferential treatment to any person . . .”.
Pursuant to DC Code § 1-603.1(7), as implemented by 18 DPM § 1899.1, an “employee” of the District government is defined as “an individual who performs a function for the District government and who receives compensation for the performance
of such services.” DC Code § 1-612.8(G) establishes the rate of compensation for Zoning Commission members. Consequently, you are considered an employee of the District of Columbia, subject to 18 DPM (Employee Conduct Regulations).
As a member of DCZC, whose oversight extends to campus plans for District of Columbia universities, you may be required to take an official action affecting Gallaudet University (Gallaudet). Should this occur, you must ensure that the official action taken is done so in an impartial and objective manner to avoid the appearance of preferential treatment of Gallaudet, or by virtue of your relationship with the university’s President.
Second, you state that your duties as President of New York Avenue Development Corporation include fund raising, whereby grants are solicited [from various sources] to support efforts to revitalize the New York Avenue Corridor of the city. Further, you indicated orally that the issue here is whether an advance determination should be made concerning a grantor’s application status with the DCZC in an effort to avoid a conflict of interest. You mentioned the difficulties in making such determinations due to your inability to obtain a listing of individuals or entities with pending matters before the DCZC.
DC Code § 1-1461(c ), states in pertinent part, “[n]o person shall offer or give to a public official . . . , and no public official shall solicit or receive anything of value, . . . based on any understanding that such public official’s official actions or judgment or vote would be influenced thereby, or where it could reasonably be inferred that the thing of value would influence the public official in the discharge of his or her duties, or as a reward, except for . . . transactions made in the ordinary course of business of the person offering or giving the thing of value.”
As a public official, who serves also as President of the New York Avenue Development Corporation (Corporation), you are certainly aware that Corporation grantors could have applications or other transactions pending before the DCZC. Consequently, it is suggested that the Corporation take affirmative steps to develop a simple, yet effective, internal control system to determine whether a grantor has an active or pending application before the DCZC. With this information, you would be able to determine the appropriateness of an official action relative to the applicant. Otherwise, any favorable action by you relative to a grantor/applicant could be construed as having been influenced by a grant award to the Corporation. Therefore, it is our opinion that you may be required to recuse yourself from participation in an official action relative to a Corporation grantor, if a transaction occurs [involving the grantor] other than in the ordinary course of business, to avoid an actual conflict of interest.