City of San Antonio, Texas

Ethics Advisory Opinion No. 46

August 28, 2000

Issued By: City Attorney’s Office

 

Whether the San Antonio Area Foundation may establish a scholarship in the name of a City Councilmember.

A City Councilmember has asked whether the San Antonio Area Foundation may establish a scholarship in his name. The following facts are presented:

 

The San Antonio Area Foundation ("Foundation") is a community foundation, representing various funds and trusts. These funds include the following: (1) a field of interest fund; (2) a designated fund; (3) a scholarship fund; (4) an endowment fund; and (5) an advised fund. The Foundation has expressed interest in establishing a scholarship in the name of a current member of the City Council. This scholarship would be funded by donations from various individuals and entities and would be distributed by the Foundation’s Board of Directors as an academic scholarship to students who meet certain criteria.

 

The issue is whether the Councilmember may agree to accept establishment of a scholarship in his name from the Foundation. The Ethics Code defines a "city official" to include, among others, a member of the City Council. As a city official, the Councilmember is required to follow the standards of conduct as set forth therein.

 

Unfair Advancement of Private Interests. Part B, Section 2 of the Code[1] 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." Pursuant to this section, the Councilmember must not use his position as a City official to advance the interests of the Foundation or give the impression of such.

 

The Foundation has, at least on one (1) occasion, received monies from the City for start up operations to renovate Centro Alameda. The monies awarded were part of a grant fund balance to a delegate arts agency that had ceased operations. As a result, the monies were reprogrammed to the Foundation in order to provide assistance to Centro Alameda.

 

More often than not, however, the Foundation funds grants to the City to provide various services, including, but not limited to, the expansion of a pediatric clinic program. Although unlikely, should the Foundation appear before the City Council to receive funds and should a scholarship be established as stated above, it is advised that the Councilmember recuse himself from awarding funds to the Foundation.

 

Moreover, given that funding of this scholarship is to be done through donations from various individuals and entities, the Councilmember should also refrain from advancing the interests of donors to said scholarship. Although technically not a violation of the Ethics Code, a perception of impropriety is created where those doing business or seeking to do business donate to the Councilmember’s scholarship fund.

 

Elections Code, Contingency Funds, and Special Projects Activity. Title 15 of the Texas Elections Code enumerates the restrictions on campaign expenditures. Section 253.035 of this Code prohibits an officeholder from using political contributions for personal use. Personal use is defined as "a use that primarily furthers individual or family purposes not connected with the performance of duties or activities as a candidate for or holder of a public office." Elec. Code Sec. 253.035(d). Therefore, should a scholarship be established in his name, the Councilmember may not use campaign contributions to fund said scholarship, as such use would be for a personal purpose.

In addition to campaign funds, each Council District has been allocated in the past $10,000 and $350,000 to budget for contingency expenses and special projects, respectively. Expenditure of contingency funds must be approved by ordinance and may be used to assist non-City groups on projects which advance a City purpose, are a public benefit, and are open to the public. Funds allocated in the Special Projects Activity fund may be expended on projects designated by the individual Councilmember for a public purpose. A public purpose includes, but is not limited to, street maintenance and community services. Although funding of a scholarship may be an appropriate expenditure under either of these categories, the perception remains that such funding advances the interest of the Councilmember by aiding the establishment of a scholarship in his name. Therefore, it is advised that the Councilmember refrain from allocating any monies to the furtherance of this scholarship from either of these funds.

 

SUMMARY

 

The San Antonio Area Foundation may create a scholarship in the name of a Councilmember. Should a scholarship be so established, the Councilmember is advised to recuse himself where the Foundation appears before the City Council to receive monies, an event that is unlikely to occur. He is further advised to refrain from providing monies to said scholarship out of his campaign fund, his district’s contingency funds, or his Special Projects Activity funds.

 

FRANK J. GARZA

City Attorney



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