City of San Antonio , Texas
Ethics Advisory Opinion No. 18
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
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