City of San Antonio, Texas

 

Ethics Advisory Opinion No. 19

 

March 22, 1999

Issued By: City Attorney’s Office

 

Whether an individual whose company appears before the Board of Adjustment of the City of San Antonio may serve as a member of that Board.

 

The Planning Department has asked whether an individual whose company appears before the Board of Adjustment of the City of San Antonio may serve as a member of that Board. This opinion is based on the following facts:

The Board of Adjustment ("BOA") is responsible for hearing appeals from enforcement of and special exceptions to the Zoning Code. An individual is scheduled to be appointed to the BOA by the City Council on March 25, 1999. This individual is employed by the ABC Company ("ABC"), a company which appears before the BOA on occasion. He is also a member of the Electrical Examining and Supervising Board ("Electrical Board").

The issue is whether serving on the Board of Adjustment violates the Code of Ethics given the individual’s employment. Part A. Section 2[1]. of the Code of Ethics 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 individual is a City official for being a member of both BOA and Electrical Board, 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 his outside employer 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.

Therefore, if the Electrical Board or BOA has to make a recommendation on a matter for which the board member is required to take action that may result in an economic benefit for ABC, he must disclose this potential conflict to the City Clerk and recuse himself from any discussion or voting on the matter. This would mean that each time ABC appears before either board, the board member would be prohibited from participating in any and all discussions on the matter.

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." Currently, the board member is prohibited from using his position as a member of the Electrical Board to advance the interests of ABC or give the impression of such. Should he be appointed to the BOA, the same standard of conduct would apply, and he would be prohibited from using his position as a board member from advancing the interests of ABC.

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. Should ABC apply for a variance or other relief authorized by the Electrical Board or the BOA, the board member is and would be prohibited from divulging any information confidential in nature, resulting from his position as a member of these respective boards. Here again, however, the perception is that, because he is a board member of the BOA, he has access to information beneficial to advancing the interests of ABC. This may call into question any ruling made by the BOA on an issue involving ABC.

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) 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; or

before a board or other city body which has appellate jurisdiction over the board or body of which the city official or employee is a member, if any issue relates to the official’s or employee’s duties."

Under section 5(a)[4], should he be appointed to the BOA, the individual would be prohibited from representing ABC before the Board of Adjustment and the Electrical Board. He may, however, represent the company before other boards and commissions, and city staff as long as the staff contacted does not provide support to the BOA or the Electrical Board.

Prohibited Financial Interest. Part B, Section 10[5] of the Ethics Code prohibits city officers from having a financial interest in a contract with the City or its agencies, including SAWS. Under this section, a City officer includes, among others, "members of any board or commission which is more than advisory in function." The Board of Adjustment and the Electrical Board are such boards. To be in violation of this section, the City officer must have a financial interest in a contract with the City. A financial interest includes, but is not limited to, owning 10% or more of the voting stock or shares of the business or owning 10% or more of the fair market value of the business. If the board member owns such an interest in ABC, and ABC had a contract with the City, then he would not only be prohibited from being appointed to the Board of Adjustment, he would have to resign from the Electrical Board.

 

SUMMARY

 

Under the Ethics Code of the City of San Antonio, there is no legal impediment preventing an individual who appears before the Board of Adjustment from appointment to said Board provided he abide by the standards of conduct as set forth. There is, however, the appearance that an individual whose company appears before a board on which he is a member has an unfair advantage, calling into question the validity of any ruling by the Board. That is why he would be required, among other things, to recuse himself and disclose in writing to the City Clerk each time ABC Company appears before the Board of Adjustment, to refrain from representing ABC before said Board, and to refrain from disclosing confidential information. Regardless, as a current member of the Electrical Examining and Supervising Board, he must abide by the same standards of conduct set forth in the Code.

  

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 2-52