City of San Antonio, Texas

 

Ethics Advisory Opinion No. 16

 

April 9, 1999

Issued By: City Attorney’s Office

 

Whether a brother of a City official who is also a member of the Historic and Design Review Commission may participate in the San Antonio Bike Rack Design Competition.

A board member of the Historic and Design Review Commission has asked whether he may participate in a bicycle rack design competition. This opinion is based on the following facts:

The City of San Antonio is inviting area artists and designers to submit designs for a bicycle parking rack design competition. The competition, sponsored by Cappyccino’s, Cappy’s, and La Fonda on Main restaurants, is initiated as a pilot project by the Metropolitan Planning Organization ("MPO") and the City of San Antonio to develop bicycle racks which enhance streets and encourage bicycling. An individual, the brother of a City official and a member of the Historic and Design Review Commission, is interested in participating in the design competition.

The issue is whether, under the Ethics Code of the City of San Antonio, the board member may participate in the Design Competition given his relationship to the City official and his membership on the Historic and Design Review Commission ("Commission"). Part A. Section 2[1]. of the Ethics Code states that an "official" includes, among others, "members of all boards, commissions (except the Youth Commission whose members are minors), committees, and other bodies created by the City Council pursuant to federal or state law or City ordinance, including entities that may be advisory only in nature..." Under this definition, the board member is a City official, and as such, must follow the standards of conduct as set out in the Code.

Improper Economic Benefit. As a general rule, a City official may not take official action that he knows is likely to have an effect on, among others, his economic interest or on the economic interest of a family member within the second degree of consanguinity that is distinguishable from the effect on the public in general. Should such occur, the City official is required to recuse himself immediately, refraining from any further participation in the matter, and disclose in writing to the City Clerk the economic benefit.

According to the terms of the competition, a bicycle rack design selection committee, comprised of a representative from the City’s Public Works Department, members of the MPO, members of the Bike Rack Advisory Committee, and the sponsors of the Competition, will recommend its selection after review of the design entries. This recommendation will be forwarded to the Historic and Design Review Commission for final approval. The individual is a member of this Commission. Therefore, because the Commission will take action on a matter that may result in his economic benefit, he must disclose this potential conflict to the City Clerk and recuse himself from any discussion or voting on the matter.

Unfair Advancement of Private Interests. Part B. Section 2[2] of the Code prohibits a City official from using his position "to unfairly advance or impede private interests, or to grant or secure, or attempt to grant or secure, for any person (including himself [ ]) any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons." In the instant case, the board member must not use his position to advance his interests or give the impression of such. Failure to abide by this standard of conduct is a violation of the Ethics Code and subject to the penalties therein.

Although compliance with this standard of conduct does not violate the Ethics Code, the perception is that the board member will receive special consideration given his relationship with the City official, as well as his membership on the board that has final approval. This may call into question the validity of the competition, and therefore, the board member should refrain from participating in the competition.

Confidential Information. All City officials are prohibited from using their position to obtain confidential information for purposes other than the performance of their duties and/or from intentionally or knowingly disclosing such information gained as a result of their position. As a member of the Commission, the board member may have information which other individuals do not possess. Such information not only provides an edge in the competition, but also may impact any design which he submits.

 

SUMMARY

A brother of a City official who is also a member of the Historic and Design Review Commission may participate in the San Antonio Bike Rack Design Competition. However, the perception is great that, because of his Commission membership, he will receive special consideration. Therefore, although there is no legal impediment to his participation provided he abide by the standards of conduct as set forth in the Code, he should refrain from participating in the competition.

 

FRANK J. GARZA

City Attorney



[1]   Currently codified in Ethics Code Section 2-42

[2]   Currently codified in Ethics Code Section 2-44