December 31, 2008
 

Brian K. Flowers
General Counsel
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W.
Suite 4
Washington, D.C. 20004

Re: Potential Conflict of Interest

Dear Mr. Flowers:

This responds to your request for an opinion concerning whether a conflict of interest would exist for Chairman Vincent Gray if the spouse of the Counsel to the Committee of the Whole accepted an appointment as Director of the Office of Zoning. 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 Vincent Gray chairs the Committee of the Whole;
(c) Pursuant to Counsel Rule 231(d), the Committee of the Whole has oversight of the Office of Zoning;
(d) The Office of Zoning was established as an independent agency of the District of Columbia government to provide professional, technical, or administrative staff assistance to the Zoning Commission and the Board of Zoning Adjustment;
(e) The Director of the Office of Zoning is appointed by the District members of the Zoning Commission;
(f) Chairman Gray is not related to Mrs. Miller;
(g) Chairman Gray would not derive any financial benefit, either directly or indirectly, from the salary to be received by Mrs. Miller as Director of the Office of Zoning.

As a general rule, a conflict of interest occurs when a public official uses his or 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 D.C. Official Code § 1-1106.01(i) (4) (2001 Edition)..

The term “business” means “any corporation, partnership, sole proprietorship, firm … and any legal entity through which business is conducted for profit”. See D.C. Official Code § 1-1106.01(i) (2).

D.C. 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.”

The affected federal statute, 18 U.S.C. § 208, restricts District employees from participating personally and substantially in government matters requiring decision-making 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 Gray’s ability to participate in his responsibilities and obligations with the Council. Despite the fact that Chairman Gray ultimately chairs the Committee on the Whole, there is no indication that Chairman Gray will inure any financial benefit from the appointment of the employee’s spouse.

Therefore, it is the opinion of the Office of Campaign Finance that the appointment of the spouse of an employee of the Council Committee of the Whole as Director of the Office of Zoning would not pose a conflict of interest for the employee.

The foregoing is an Interpretative Opinion of the Director of the Office of Campaign Finance. Pursuant to D.C. Official Code §1-1103.05, you are entitled to request an Advisory Opinion from the Board of Elections and Ethics on this transaction or activity.

Should you have any additional questions, please contact William O. SanFord, Senior Staff Attorney at (202) 671-0550.