Ethics
Advisory Opinion No. 46
August
28, 2000
Issued
By: City Attorney’s Office
Whether the
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