City of San Antonio, Texas

Ethics Advisory Opinion No. 45

July 3, 2000

Issued By: City Attorney’s Office

Whether a City employee may contract with the City of San Antonio to provide maintenance for the trees at Espada Park.

The Department of Public Works has asked whether a City employee may contract with the City of San Antonio to provide maintenance for the trees at Espada Park. The following facts are presented:

As part of the Mission Trails tree planting program partnered by the Alamo Area Council of Governments ("AACOG"), the Texas Forest Service, the Master Gardeners, the Master Naturalists, the San Antonio Trees, Inc., and the City, a Request for Proposal for tree maintenance for Espada Park at Southeast Military and the San Antonio River was released in March 2000. The Request was sent to a number of persons and businesses. However, no proposals were submitted.

A Senior Plans Examiner in the Department of Building Inspections has expressed interest in the proposed contract. The contract for one (1) year is $3,000, with costs to be shared by the City and the AACOG. The issue is whether, under the City’s Ethics Code, the employee may enter into such a contract given his position with the City. All City employees, whether part-time or full-time, are required to follow the standards of conduct as set forth in the Code.

 

Unfair Advantage of Private Interest. Part B. Section 2 of the Code[1] prohibits all City employees 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." In the instant case, there is no evidence that the employee has used his position as a Senior Plans Examiner to obtain this contract. Provided he does not do so, there is no violation of this section.

Conflicting Outside Employment. Generally, a City employee may not engage in outside employment that may influence the performance of his official duties. More specifically, "a City . . . employee shall not provide services to an outside employer related to the . . . employee’s City duties." The essential job functions for a Senior Plans Examiner include, among others, supervising the processing of commercial and residential plans submitted for plan checking. These job functions do not conflict with the proposed contract position as such position requires watering and general maintenance (weed removal, mulching, and litter removal) of the trees at Espada Park. Therefore, as long as the services the employee provides to the City do not relate to his duties as an Examiner, there is no violation of this standard of conduct. He must, however, comply with Administrative Directive 4.47 that requires the employee to obtain written approval from the Department Director prior to engaging in outside employment.

Public Property and Resources. Section 7 of the Code[2] prohibits City employees from using "City facilities, personnel, equipment or supplies for private purposes." Because the employee’s duties with the City are different from his duties offered under Contract, the likelihood of using City equipment is slim. However, the employee must remain cognizant that he may not use City equipment and/or perform said work on City time. Provided he complies with this standard of conduct, there should be no violation of this section.

Prohibited Interest in Contract. Part B. Section 10[3] prohibits City employees from having a financial interest in a contract with the City or its agencies, including SAWS. Under this section, a City employee is "any employee of the City who is required to file a financial disclosure statement pursuant to Section 1(a) of Part G.[4]" Because the employee is not a City employee as defined in this section, he is not prohibited from contracting with the City and may provide the tree maintenance service under contract with the Department of Public Works.

 

SUMMARY

City employees are governed by the standards of conduct as set forth in the Ethics Code of the City of San Antonio. Pursuant to said standards, an employee must obtain written approval from the Department Director prior to engaging in outside employment, employment which must not be related to his duties with the City. Under the facts presented, it does not appear that the employment relates to the employee’s position with the City. Therefore, there should be no violation of the Code. However, the employee must remain cognizant of the standards of conduct as provided in the Ethics Code, including, refraining from using City equipment or time to perform said work.

 

 

 

FRANK J. GARZA

City Attorney

 

 

 

 



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

[2]   Currently codified in Ethics Code Section 2-49

[3]   Currently codified in Ethics Code Section 2-52

[4]   Currently codified in Ethics Code Section 2-73