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Interpretative Opinion 99-16: Conflict of Interest

November 3, 1999

Charlotte Brookins-Hudson, General Counsel
Council of the District of Columbia
441-4th Street, NW
Washington, DC  20001

Re: Potential Conflict of Interest – Council Chair Linda Cropp

Dear Ms. Brookins-Hudson:

This confirms our oral representations to your request for an opinion, made on yesterday, November 2, 1999, concerning Council Chairman Cropp’s official participation in a matter before the Council on November 2, 1999.  Specifically, you state that a bond revenue resolution for George Washington University (University) is before the District of Columbia Council over which Ms. Cropp presides.  You further state the following:  (1) that the revenue bond resolution authorizes the issuance of up to $380 million in DC Revenue bonds to finance University projects; (2) that Ms. Cropp’s spouse is employed as an Associate Professor at the University; (3) that the proceeds of the bonds would not directly benefit Mr. Cropp; and (4) that no financial benefit, either directly or indirectly, would accrue to the benefit of Chairman Cropp or her spouse.

  DC Code § 1-1461(b) 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 a member of his or her household is associated, 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 that 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 Code § 1-1461(f) states, “[n]o member or employee of the Council of the District of Columbia shall accept assignment to serve on a committee the jurisdiction of which  consists  of  matters  (other  than  of  a  de  minimis nature) in which he or she or a
member of his or her family or a business with which he or she is associated, has financial interest.”

18 U.S.C. § 208 further 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 (emphasis added).  This federal statute has had longstanding applicability to officers and employees, including members of the Council, of the District of Columbia.  Pursuant to 5 C.F.R. § 2640.103, 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.”  Moreover, 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 test for 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 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 on your representations, it would appear that Chairman Cropp’s vote on the revenue bond resolution for George Washington University would not affect her financial interests or that or her spouse to the extent of violating the Conflict of Interest statute.  Further, any benefit derived from the transaction you describe would be speculative at best.  Therefore, it is the opinion of this Office that Ms. Cropp may vote on the bond resolution.