City of San Antonio, Texas

 

Ethics Advisory Opinion No. 18

 

May 31, 2005

Issued By: The Ethics Review Board

 

May an individual who served as a member of a City board enter into a contract with the City?

 

 

An individual has voluntarily served as a Member of the Board of Trustees for the San Antonio Public Library for several years. As a member of the library board, the individual is a city official under Section 2-42 of the City Ethics Code. As an official, this individual has submitted the annually required Financial and Discretionary Contracts Disclosure form to the City of San Antonio on which he identified himself as a member of that board.

 

While a member of the board, this individual engaged in negotiations to obtain a license agreement and a related Tax Phase-In Agreement between the city and a business in which this individual has an ownership interest. The project is a significant construction development. Through the license agreement, the business would receive permission to enter onto city-owned property to construct, maintain and operate traffic lanes and parking areas. The project qualifies for consideration for the Tax Phase-In agreement because of its location in an underdeveloped area of the city.

 

During negotiations of these agreements, the individual raised the issue of his membership on the library board. In response the City recently informed him that he was ineligible to participate in the award of a contract (the License Agreement and the Tax Phase In Agreement) that the City believed was discretionary. The reasoning for his ineligibility was that he was deemed an “officer” because of his voluntary involvement as a Member of the Board of Trustees, and therefore subject to the prohibition on awards of discretionary contracts to “officers” currently serving or within one year following termination of official duties.

 

Section 141 of the City Charter states and Section 2-52 of the City Ethics Code reiterates that

 

No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies, or service, except on behalf of the City as an officer or employee. Any willful violation of this Section shall constitute malfeasance in office, and any officer or employee guilty thereof shall thereby forfeit his office or position. Any violation of this Section, with the knowledge, expressed or implied, of the person or corporation contracting with the Council shall render the contract involved voidable by the City Manager or the Council.

 

Under Section 2-58 of the Ethics Code, the prohibition for city officers continues for one year after termination of service where the contract is discretionary in nature. The term “officer” includes members of boards or commissions that are more than advisory in nature. [Section 2-52(e) and Section 2-58(c)(2)]. Under the Charter, the sanction for a willing violation of this provision is forfeiture of office. The contract also becomes voidable by the City Council or the City Manager’s Office.

 

Upon learning of this determination, the individual immediately submitted his resignation from his position as a member of the library board. He has asked the Ethics Review Board to provide an opinion on whether or not his entering into a contract with the City would violate the City of San Antonio’s Ethics Ordinance, and if so, what appropriate remedies should be imposed.

 

As noted above, the Code’s definition of an “officer” is found in Section 2-58(c). An “officer” is a more restrictive subset of the classification “official.” The individual meets the definition of an “officer” as he is a person who was a member of [a] board or commission … more than advisory in nature. The Library Board has been determined to be a board that is more than advisory in nature by the City Attorney’s office. Accordingly, the individual is a city “officer” for purposes of Section 141 of the Charter and Sections 2-52 and 2-58 of the Ethics Code.

 

Whether the submission of a letter of resignation is sufficient to terminate an individual’s status as an “officer” of the City and the effective date of that termination is not a question for the Ethics Review Board. Regardless, the contract prohibition remains in place for one year following termination of city service.

 

 

OPINION

 

It is the opinion of the Ethics Review Board that based upon the facts presented in the original request there does exist a prohibition against the individual entering into a contract with the City for a period of one (1) year after the termination of his official duties on the board.

 

Although the Ethics Review Board has determined a violation would occur if the individual entered into a contract with the City, the possible sanctions for this action, forfeiture of position and/or voiding of the contract, lie outside the authority of the ERB, though this board has the authority to issue recommendations on these sanctions. Should the City Council and the City Manager’s Office determine that entering into these development agreements is in the best interests of the city and decide to do so, with the full knowledge of this individual’s restrictions under Section 141 of the Charter and Sections 2-52 and 2-58 of the Ethics Code, this board would conclude that the individual’s voluntary forfeiture of his board membership would be a sufficient sanction. Acceptance of the contract with full disclosure of the circumstances would contraindicate the option of the City Council or the City Manager to later void the contract under these provisions.

 

 

 

 

________________________________                                     ­­­­­­­­_May 31, 2005_______

Arthur Downey, Jr.                                                                  Date

Chairman, Ethics Review Board