There are two sets of partially overlapping and intermeshing statutory provisions, and related regulations, addressing conflicts of interest on the part of employees of the DC government, reflecting the dual legislative authority over the District - an elected local legislature and the federal Congress -- that was established by the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L.No. 93-198, 87 Stat. 774 (1973). The statutory provisions are found in two chapters of Title I, Administration, of the DC Code, namely, Chapter 6, which bears the title Merit System, and Chapter 14, titled Election Campaigns; Lobbying; Conflict of Interest. Chapter 6 derives from legislation adopted by the local legislative body, the DC Council; Chapter 14 finds its principal source in federal legislation. Both sets of statutory and regulatory provisions include quite sweeping proscriptions regarding the conduct of employees, present and (in the case of Chapter 6) former, of the DC government, and make detailed provision for administrative enforcement, although the administrative agencies charged with that enforcement are different. In addition, both sets of provisions contemplate the issuance of advisory opinions on, inter alia, conflict of interest issues - but again, by different agencies. A final point of intersection/overlap relates to the population of employees covered by the two sets of provisions: the provisions of Chapter 6, and the regulations issued thereunder, apply to all DC government employees (and in some cases to former employees) save those of a few independent agencies, while the provisions of Chapter 14 and the regulations thereunder apply only to elected officials and incumbent employees of relatively senior status (including those of the independent agencies not reached by Chapter 6).
Chapter 6
Chapter 6 of Title I of the DC Code, Merit System, which
derives from DC Law 2-139, DC Reg. 5740 (1979), establishes a "comprehensive merit system of personnel management for the government of the
District of Columbia," §1-601.1(1), and its 37 subchapters cover the subject
comprehensively indeed. Of particular pertinence to conflicts of interest
are
the three provisions of subchapter XIX, Employee Conduct. One of
those provisions, § 1-619-2, titled Conflicts of interest , reads
in its entirety as follows:
No 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.This prohibition is implemented by the regulations in Chapter 18 of Title 6 of the DC Municipal Regulations , discussed below, but there is no reported judicial authority applying or interpreting it.
Another provision of the subchapter is § 1-619.1, titled Standards of conduct, which, in subsection (b), provides that "The Mayor shall issue rules and regulations governing the ethical conduct of all District employees." The regulations discussed below were issued pursuant to this authority.
The third pertinent provision of the statutory subchapter is § 1-619.3, titled Ethics counselors; codification of advisory opinions. It provides in subsection (a) that each agency head shall appoint an employee to serve as the ethics counselor for the agency, and that the Mayor shall appoint an ethics counselor for the District of Columbia. The Mayor has designated the DC Corporation Counsel as Ethics Counsel for the District of Columbia, and Corporation Counsel has redelegated the responsibility to a lawyer in the Corporation Counsel’s office. Subsection (b) provides that such ethics counselors "shall issue advisory opinions concerning potential conflicts of interest which are presented by employees of the agency for resolution," the opinions to be issued within 15 days of receipt of an inquiry. Subsection (c) provides that the resulting opinions "shall be considered advisory opinions authorized under subsection (c) of § 1-1435, and shall be published in the District of Columbia Register." (The referenced statutory section is discussed under the subcaption Chapter 14, below.) As of the time this discussion was drafted (September 1999), no advisory opinion had yet been published pursuant to subsection (c) of §1.619.3, but a compilation of opinions was under preparation in the Corporation Counsel’s Office. Subsection (e) of § 1-619.3 provides that enforcement authority with respect to the provisions of Chapter 6, insofar as they apply to elected officials and senior-level employees otherwise subject to Chapter 14 (discussed under that subcaption, below) lies with the Board of Election and Ethics (rather than with the heads of agencies, as with all other employees who are subject to Chapter 6).
Chapter 6, unlike Chapter 14, contains no provision for criminal penalties or administratively-imposed fines. Enforcement of the standards of employee conduct set by § 1-619.2 and by the regulations issued under the authority of § 1-619.1 is by administrative action by the pertinent agency, subject to review by an Office of Employee Appeals whose operations are described in §§ 1?106.1 ? 11. Additionally, § 1-616.5 provides for a sort of qui tam civil damage action, which may be brought by "any citizen," to
recover funds which have been improperly paid by the District government while there exists any conflict of interest on the part of the employee or employees directly or indirectly responsible for such payment.There are no reported decisions applying or interpreting § 1-616.5.
The regulations issued under the authority of § 1-619(b) that deal with conflicts of interest (among other issues of employee conduct) are contained in Chapter 18, Employee Conduct, of the DC Personnel Regulations (which in turn are to be found in Title 6, Government Personnel, of the DC Municipal Regulations). These regulations, which were promulgated in 1983 (and most recently amended in 1993), implement not only the conflict of interest provisions of the DC Code, but in addition the Federal statutory provisions that apply to DC as well as federal government employees (discussed in 1.11:710, immediately above).
Section 1802 of the regulations, elaborating on § 1-619.3(e) of the Code, makes clear that the regulations generally apply to all DC employees, but the applicable enforcement authority depends on the seniority level of the employee affected: if the employee is at a sufficiently senior level to be subject to D.C. Code § 1-1461 (discussed under the subcaption Chapter 14 below), then enforcement authority lies in the Board of Elections and Ethics; otherwise, the enforcement authority is the head of the employee’s agency. Administrative "remedial actions," additional to "any penalty prescribed by law," are addressed by § 1801 of the regulation, which specifically lists four types of administrative remedy: changes in assigned duties; "divestment by the employee of his or her conflicting interest"; "corrective or adverse action" pursuant to § 1-617.1(d) of the Code; and "disqualification for a particular assignment." A separate administrative process is provided by § 1815 of the regulations for enforcement of the pertinent post-employment prohibitions. The sole sanction that may result from the latter proceedings is a mayoral order barring the former employee, for up to five years, from representational contacts with the former employee’s agency (§ 1815.23).
The subjects of ethics counselors and advisory opinions are addressed by §§ 1811 and 1812, respectively, of the regulations.
The principal substantive provisions of the Employee Conduct regulations pertinent here are those dealing with post-employment conflicts of interest, contained in § 1814 of those regulations. These elaborate on, and in two significant respects add to, the applicable post-employment prohibitions in 18 USC § 207. This is done in a fashion that is difficult to untangle - a result of the fact that the regulation has not yet been updated to reflect the changes in section 207 that were made, effective January 1, 1991, by the Ethics Reform Act of 1989. The prohibitions in section 207 that are in terms applicable to DC as well as federal employees are the permanent prohibition of subsection (a)(1) [see 1.11:610, above] and the two-year post-employment prohibition of subsection (a)(2) [see 1.11:620, above]. The regulations reiterate the substance of both of these prohibitions (in § 1814.4 and §§ 1814.6 through 1814.9, respectively), but in doing so refer to the provisions as they stood prior to the Ethics Reform Act’s amendments. This is made clear by the fact that the regulations incorporate by reference the federal regulations interpreting section 207 prior to those amendments, which are now found in 5 CFR Part 2637 but which the DC regulation refers to by their pre-1990 designation of 5 CFR Part 737 (see §§ 1814.2 and 1814.3; see also the definition of "senior employee" in § 1814.1, making reference to 18 USC § 207(b)(ii), which was rescinded by the Ethics Reform Act). The substance of what is now subsection (a)(1) of section 207 constituted, prior to the changes wrought by the Ethics Reform Act, the entirety of subsection (a); the substance of what is now subsection (a)(2) was subsection (b)(i) as it then stood.
The regulations also effectively add to the two prohibitions imposed by section 207 two others borrowed from that source: one that section 207 imposes only on former federal and not DC employees, and the other a prohibition that the statute no longer imposes on either group. As to the first of these, the regulations make applicable to former senior employees of the DC government (defined in § 1814.1) a prohibition roughly corresponding to the prohibition in subsection (c) of section 207 [discussed under 1.11:630, above], which imposes on former senior federal employees a one-year post-employment prohibition on representational contacts with their former agencies regarding any matter on which they are seeking official action, regardless of whether they had participated personally and substantially in or had official responsibility over the matter while in government (see §§ 1814.10 - 1814.14). This statutory prohibition carried the same lettering before the Ethics Reform Act, but was altered by that Act both in formulation and in some details of substance. The prohibition, however, did not in its prior form and still does not apply to former DC employees but only federal ones. As to the other prohibition borrowed from the federal statute, the regulation specifically refers (in the definition of "Senior Employee," in § 1814.1) to the prohibition of former subsection (b)(ii) of section 207, which imposed a two-year post-employment ban on former employees of both the federal and the DC governments assisting in representations by others, and restates (in § 1814.10), as a regulatory prohibition, the substance of that provision. That subsection of section 207, however, was eliminated by the Ethics Reform Act and is no longer in effect.
Other substantive prohibitions relating to conflicts of interest are found in the following sections of the Employee Conduct regulations:
- Section 1803, titled Responsibilities of Employees, sets out various prohibitions, including one on receipt of compensation from a private source for services to the government (§ 1803.6) -- a prohibition that, as the regulation recognizes, is also imposed by 18 USC § 209 [discussed under 1.11:699, above].
- Section 1804, Outside Employment and Other Outside Activity, imposes, inter alia , a restriction on maintaining a financial interest in or serving as an officer or director of an organization that is likely to be affected by government action taken or recommended by the employee (§ 1804.1(d)) - a kind of conflict addressed more centrally by 18 USC § 208 [discussed under 1.11:695, above]; and one on serving in a representative capacity for any outside entity in any matter before the District of Columbia (§ 1804.1(h)) - this time echoing 18 USC § 205 [discussed under 1.11:690].
- Section 1805, Financial Interest, also addresses, albeit more broadly, conflicts of interest of the sort with which 18 USC § 208 is concerned: it prohibits knowing acquisition, by the employee or a member of his or her "immediate household," of property whose possession "could unduly influence or give the appearance of unduly influencing" the employee’s official conduct (§ 1805.1); and acquiring an interest in or operating a commercial enterprise that is "in any way related, directly or indirectly, to the employee’s official duties" or to matters "over which the employee could wield any influence" (§ 1805.2).
- Section
1813, which is principally concerned with the subject stated
by its title, Reporting
of Financial Interests, also includes
the following two substantive prohibitions:
- L1813.1. No 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.
- 1813.18. Notwithstanding the filing of the annual statement required by this section, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result, in a violation of the conflict-of-interest provisions of 18 U.S.C. § 208, or this chapter.
Chapter 14 of Title I of the DC Code derives from the District of Columbia Campaign Finance Reform and Conflict of Interest Act, Pub. L. No. 93-376, 88 Stat. 447 (1974). The Chapter bears the title Election Campaigns; Lobbying; Conflict of Interest, and is principally concerned with the first two of the three topics so referred to. A single section, § 1-1461, titled Conflict of interest, specifically addresses the third of those topics, setting out a number of prohibitions on the subject. As has been mentioned, the conflict of interest prohibitions in Chapter 14, unlike those in Chapter 6, above, do not apply to all DC government employees, but only to those in positions above a certain level of seniority. Specifically, all but two of the prohibitions of § 1-1461 apply to all "public officials" of the District of Columbia; the two exceptions apply to subsets of the same. "Public officials" are defined by § 1-1461(i)(1) as persons required to file financial statements under § 1-1462. The latter provision, titled Disclosure of financial interest, requires annual filings of detailed financial statements by specified elected officials, namely the Mayor, DC’s representatives in Congress, members of the Council and members of the School Board; persons serving as subordinate agency heads, persons serving in positions designated within the Excepted Service (see DC Code §§ 1?610.1 through 1-610.3) and paid at a rate of GS-13 or better, and "statutory officeholders" (see DC Code § 1-610.8); and members of a wide array of administrative boards, which are listed in extenso in § 1-1462. (The substance - though not the timing - of the disclosure requirements of § 1-1462 has application to non-incumbent candidates for public office as well as incumbents, and thus such candidates are caught in the definition of "public officer" in § 1-1461, but all of the substantive prohibitions of that section clearly have application only to persons who are actually in office.)
The list of conflict of interest prohibitions in § 1-1461 commences with the following declaration of principle:
- The Congress declares that elective and public office is a public trust ,
and any effort to realize personal gain through official conduct is a violation
of
that trust.
This is followed by a series of subsections setting out the following prohibitions applicable to all public officials:
- No 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 or his or her household is associated, other than that compensation provided by law for said public official.
- No person shall offer or give to a public official or a member of a public official’s household, and no public official shall solicit or receive anything of value, including a gift, favor, service, loan gratuity, discount, hospitality, political contribution, or promise of future employment, 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 political contributions publicly reported . . . and transactions made in the ordinary course of business of the person offering or giving the thing of value.
- No person shall offer or pay to a public official, and no public official shall solicit or receive any money, in addition to that lawfully received . . . in his or her official capacity, for advice or assistance given in the course of the public official’s employment or relating to his or her employment.
- No public official shall use or disclose confidential information
given in the course of or by reason of his or her official position or
activities in any way that could result in financial gain for
himself or herself or for any other person.
The two prohibitions in § 1-1461 that are applicable only to elected officials are these:
- No member or employee of the Council of the District of Columbia or Board of Education 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.
- Neither 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.
Violations of the prohibitions of § 1-1461 (as well as other provisions of Chapter 14, and in addition those of Chapter 13, which also addresses the subject of elections, though not that of conflicts of interest) are subject to criminal penalties, provided by § 1-1471, of up to a $5,000 fine or 6 months imprisonment. Prosecutions are brought by the United States Attorney. Administrative enforcement authority is vested in the District of Columbia Board of Elections and Ethics, whose powers are prescribed by § 1?1435. Although the Board is authorized to refer violations to the United States Attorney, see §§ 1-1431(c) and 1-1432(c), it is also empowered by § 1-1435(b)(1) and (2) to assess, in administrative proceedings, civil penalties of up to $50 per day for violation of any provision of Chapter 14 or Chapter 13. It is also empowered by § 1-1435(b)(3) to prescribe a schedule of fines for such violations, which may be imposed "ministerially" by the Director of the Office of Campaign Finance, which fines are subject to a limit of $50 per day and $500 in the aggregate. When a civil penalty imposed by the Board is not paid, the Board is authorized by § 1-1435(b)(4) to seek enforcement by the Superior Court. The Board is also authorized, by § 1-1435(c), to issue, in response to inquiries from persons affected, "advisory opinions" about the applicability of any provision of Chapter 14 (or of Chapter 13).
The Director of Campaign Finance, referred to above in connection with the civil penalties that can be imposed ministerially, is appointed by the Mayor but operates as a sort of executive arm of the Board. The Director is charged, among other things, with investigating alleged violations of Chapter 14 (§ 1-1432), and performing other duties prescribed by the Board (§1-1435).
The Board of Elections and Ethics has issued two sets of regulations that have relevance to the present discussion: one addressing Conflict of Interest, which comprises Chapter 33 of the DC Municipal Regulations; and the other addressing Investigation and Hearings , which is Chapter 37 of the same.
The regulations in Chapter 33 include, in § 3302, a substantial delegation by the Board to the Director of its advisory functions, authorizing the Office of Campaign Finance (OFC) to issue "interpretive opinions" in response to inquiries; review of these can be sought by the requester from the Board; and the Board’s response becomes an "advisory opinion" which is published in the District of Columbia Register. No such "advisory opinions" have been issued in recent years. The "interpretive opinions" issued by the OFC are not published, but they may be viewed at the OFC’s offices, and copies of particular opinions will be furnished upon request.
The prohibitory provisions of these regulations, found in § 3301, do little more than repeat, in somewhat simplified and watered-down form, the statutory prohibitions in § 1?1461, set out above. Thus, § 3301.1 of the regulation tracks § 1-1461(b) of the Code, but says "the public official shall avoid the use" rather than saying "No public official shall use" public office to obtain financial gain. Similarly, § 3301.2 tracks § 1-1461(c) on receipt of anything of value in exchange for official action; § 3301.3 tracks § 1-1461(d) on payment of receipt of money in return for advice or assistance given in the course of the public official’s employment; § 3301.4(a) tracks § 1-1461(e) regarding use or disclosure of confidential information; and § 3301.4(b) tracks § 1-1461(f), regarding committee assignments.
The regulations in Chapter 37 prescribe in some detail the conduct of investigations. Section 3711 of those regulations sets out the schedule of fines that may be "ministerially" imposed by the Director pursuant to § 1-1435(b)(3) of the Code.
