City of San Antonio, Texas

 

Ethics Advisory Opinion No. 17

 

March 18, 1999

Issued By: City Attorney’s Office

 

Whether, under the City of San Antonio Ethics Code, the Executive Director of the ABC Organization who is also a board member of one of the City’s Advisory Committees may represent XYZ Neighborhood Association in its application for planning services under the Community Building and Neighborhood Planning Program and related questions.

The Planning Department has asked whether the Executive Director of the ABC Organization who is also a board member of one of the City’s Advisory Committees (the "Committee") may represent XYZ Neighborhood Association in its application for planning services under the Community Building and Neighborhood Planning Program. The opinion is based on the following facts:

The Community Building and Neighborhood Planning Program, approved by City Council in October 1998, provides a competitive application process for neighborhood groups to request planning services. Evaluating the applications are two (2) different teams comprised of City employees from various City departments.

Team One will assist with the review of the Building Capacity & Focusing on the Issues and the Community & Neighborhood Plans applications. Under the Building Capacity & Focusing on the Issues application, neighborhood associations are formed to develop special studies, focusing on critical issues and/or goals. Under the Community & Neighborhood Plans applications, community members are given assistance to develop a community or neighborhood plan.

Team One is comprised of ten (10) people, including, Jackie Pepper, the ABC Organization ("ABC") representative, and Annalisa Peace, the representative from the City Department responsible for providing support to the Committee. Each team member is required to rank the applicants based on criteria established for the program he/she is evaluating. Once this is completed, recommendations will be forwarded to Emil Moncivais, the Planning Director, for final approval.

This year, the XYZ Neighborhood Association has applied for planning services, the application for which will be reviewed by Team One. The president of this Association is also the Executive Director of the ABC and a board member of the Committee.

The issues are as follows:

Whether, under the City of San Antonio Ethics Code, the Executive Director of the ABC Organization who is also a board member of the Committee, may represent XYZ Neighborhood Association in its application for planning services under the Community Building and Neighborhood Planning Program;

Whether Ms. Pepper may interview, vote, and/or discuss the XYZ application given that she is the representative of the ABC, of which the board member is the Executive Director; and

Whether Ms. Peace may interview, vote, and/or discuss the XYZ application given that she is a City employee in the City department providing support to the Committee.

Issue 1. Whether, under the City of San Antonio Ethics Code, the Executive Director of the ABC Organization who is also a board member of the Committee, may represent XYZ Neighborhood Association in its application for planning services under the Community Building and Neighborhood Planning Program.

Part A. Section 2[1]. of the Code of Ethics states that an "official" includes, among others, "members of all boards, commissions, . . . 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. Generally, a City official may not take any official action that "is likely to have an effect on [his] economic interest or [his] outside employer that is distinguishable from its effect on members of the public in general or a substantial segment thereof." If such occurs, the City official is under a duty to recuse himself and disclose in writing to the City Clerk the prohibited conduct.

A member of one of the City’s Advisory Committees is the president of his neighborhood association, the XYZ Neighborhood Association ("XYZ"). As a board member, he is required to refrain from any matter whereby his participation would bestow an economic benefit on XYZ. Therefore, should a matter of the association come before the Committee, the board member would be required to recuse himself and would not take part in any discussion or decision involving XYZ. Moreover, he must disclose in writing to the City Clerk the potential conflict.

The board member is also the Executive Director of the ABC, a non-profit entity working in conjunction with the City’s Planning Department in implementing its Community Building and Neighborhood Planning Program. Because he is the Executive Director of the ABC and is a board member of the Committee, it may be perceived that selection of XYZ for services under the program benefits a City official and Executive Director under contract with the City.

Unfair Advancement of Private Interests. Part B. Section 2[2] of the Code prohibits all City officials from using their 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." Under this section, the board member must not use his position as a City official to advance the interests of XYZ 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.

Representation of Private Interests. Part B. Section 5[3] of the Code addresses representation of private interests and includes those issues brought forth by a member of a board before the City. Section 5(a)[4] states:

 

"A city official . . . who is a member of a board . . . shall not represent any person, group or entity:

before that board or body;

before city staff having responsibility for making recommendation to, or taking any action on behalf of, that board or body;"

Under section 5(a)[5], the board member must not represent XYZ in the above situations. Despite this prohibition, he may represent XYZ before other boards and commissions and city staff as long as the staff contacted does not provide support to the Committee.

Disclosure of Benefit to City Official. Part D[6] of the Code addresses the standards of conduct for those doing business with the City. Section 2(a) of this part requires that, "if a person who requests official action on a matter knows that the requested action will confer an economic benefit on any city official . . . that is distinguishable from the effect that the action will have on members of the public in general, . . . he shall disclose that fact in a signed writing . . . filed with the City Clerk." Because the City has contracted with the ABC to aid in implementation of a City program, as Executive Director of the ABC, the board member is also governed by this part of the code. Under Section 2(a)[7] of this part, if he represents XYZ and if XYZ is selected for the program, the perception is that an economic benefit will have been bestowed on a City official. Therefore, the board member should disclose said conflict to the City Clerk.

 Issue 2. Whether Ms. Pepper may interview, vote, and/or discuss the XYZ application given that she is the representative of the ABC, of which the board member is the Executive Director; and

The Ethics Code applies not only to City officials and employees but also those doing business with the City. Ms. Pepper, as an employee of the ABC, is required to disclose any benefit to a City official. Given her employment with the ABC, if Ms. Pepper participates in the selection of the XYZ application, such action would arguably confer an economic benefit to a Neighborhood Association she is a member of. Therefore, Ms. Pepper must disclose in writing the potential conflict to the City Clerk and should refrain from participation in the matter.

Issue 3. Whether Ms. Peace may interview, vote, and/or discuss the XYZ application given that she is a City employee in the City Department providing support to the Committee.

All City employees, whether part-time or full-time, are required to follow the standards of conduct as set forth in the Ethics Code. Ms. Peace is a City employee in the City department providing support to the Committee and who may, on occasion, work with the board member in his position as a member of the Committee.

Unfair Advancement of Private Interests. As stated above, Part B. Section 2[8] of the Code prohibits all City employees from using their position for undue advantage. Therefore, Ms. Peace must not use her position on the Team to advance the interest of XYZ in its application efforts. If Ms. Peace believes her working relationship with the board member will be affected if she participates in the XYZ evaluation, then she should not participate in the evaluation of XYZ’s proposal.

SUMMARY

 

City officials and employees, as well as those doing business with the City, are subject to the Ethics Code of the City of San Antonio. Pursuant to the standards of conduct as set out in the Code, the Executive Director of the ABC Organization who is also a board member of one of the City’s Advisory Committees should not represent his neighborhood association in its application for planning services under the Community Building and Neighborhood Planning Program, recusing himself from any discussion on the matter and disclosing the conflict to the City Clerk. Moreover, an employee of the ABC should not participate in the review of the applicant neighborhood association of which the Executive Director of the ABC is the president. Finally, a City employee may participate in the review of the applicant neighborhood association provided she does not advance or impede the interests of said association.

 

FRANK J. GARZA

City Attorney



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

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

[3]   Currently codified in Ethics Code Section 2-47

[4]   Currently codified in Ethics Code Section 2-47(a)

[5]   Currently codified in Ethics Code Section 2-47(a)

[6]   Currently codified in Ethics Code Division 4: Persons Doing Business With the City

[7]   Currently codified in Ethics Code Section 2-60(a)

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