City of San Antonio, Texas

Ethics Advisory Opinion No. 1

.January 14, 1999

Issued By: Ethics Compliance Officer

 

 

Whether the provision of free office space by Yanaguana Cruises, Inc. to the San Antonio Parks Foundation whose Executive Director is a member of the Downtown Advisory Board and is the Co-Chair of the San Antonio River Oversight Committee presents conflicts or problems under the Ethics Code effective January 1, 1999,

and

Whether the Executive Director of the San Antonio Parks Foundation is required to register as a lobbyist under the Ethics Code.

 

 

The Executive Director of the San Antonio Parks Foundation (the Foundation) has asked about the propriety of a contribution of free office space by Yanaguana Cruises, Inc. (Yanaguana) to the Foundation in light of the fact that the Executive Director is a member of the Downtown Advisory Board (an advisory board created by the City Council of the City of San Antonio) and also serves as Co-Chair (appointed as such by Resolution No. 98-40-4 1 of the City Council) of the San Antonio River Oversight Committee. The following facts are presented:

1. The President of Yanaguana is a board member of the Foundation and was primarily responsible for developing the concept of the Foundation while she was employed in the past with the City of San Antonio.

2. Neither the Foundation nor its Executive Director have any financial interest in Yanaguana.

3. Yanaguana has a contract with the City of San Antonio for providing the River Cruises Concession on the San Antonio River.

Before addressing the specific questions, it is pointed out that the provisions of the Ethics Code apply to "officials" as defined therein. The Code does not apply to boards and commissions as such. Therefore, there is no issue relating to whether the Code applies to the San Antonio River Oversight Committee. The issue is whether the Co-Chair of that Committee is an "official" within the meaning of the Code. Under Section 2 of Part A[1] of

the Code, the term "official" includes, among others, "members of all boards, commissions (except the Youth Commission whose members are minors), committees,and other bodies created by the City Council pursuant to federal or state law or City ordinance, including entities that may be advisory only in nature; and board members of any entity who were appointed by the City Council to such board membership." Thus, the Executive Director of the Foundation is an official of the City because such person is a member of the Downtown Advisory Board and also because of her appointment by the City Council to serve as Co-Chair of the San Antonio River Oversight Committee.

Therefore, the question relating to the contribution of free office space by Yanaguana to the Foundation resolves itself to whether the provisions of the Code apply to the Executive Director of the Foundation relating to this transaction/circumstance. A review of the provisions of Part B of the Code[2] relating to Present City Officials and Employees indicates that the provisions of Part B have no application to the Executive Director of the Foundation with regard to the contribution of free office space by Yanaguana to the Foundation.

Whether the Executive Director of the Foundation is required to register as a lobbyist turns on the requirements for registration set forth in Section 3 of Part E[3] of the Code. Section 3 provides as follows[4]:

Except as provided by Section 4, a person who engages in lobbying must register with the City Clerk if

(a) with respect to any client, the person engages in lobbying activities for compensation of more than one thousand dollars ($1009) in a calendar quarter; or

(b) the person expends more than one thousand dollars ($1000) for lobbying in a calendar quarter.

The terms “compensation” and "expenditure" are defined in Section 2 of Part E[5].

Therefore, unless and until the Executive Director of the Foundation either engages in lobbying activities (as described in Section 2(h) of Part E[6]) for compensation of more than one thousand dollars ($1000) in a calendar quarter or expends more than $1,000 for lobbying in a calendar quarter, the Executive Director of the Foundation is not required to register as a lobbyist. Whether the Executive Director receives compensation of more than $1,000 in a calendar quarter for lobbying (if any lobbying activity is undertaken by the Executive Director) must be determined in accordance with Section 2(c) of Part E[7]. The status of the Foundation as a 501(c)(3) not for profit corporation does not create for its Executive Director an exception from the registration requirements set forth in Section 3 of Part E[8].

A review of the provisions of Part B of the Ethics Code[9] relating to Present City Officials and Employees indicates that the provisions of Part B have no application to the Executive Director of the San Antonio Parks Foundation with regard to the contribution of free office space by Yanaguana Cruises, Inc. to the Foundation.

Unless and until the Executive Director of the Foundation either engages in lobbying activities (as described in Section 2(h) of Part E[10]) for compensation of more than one thousand dollars ($1000) in a calendar quarter or expends more than $1,000 for lobbying in a calendar quarter[11], the Executive Director of the Foundation is not required to register as a lobbyist. Furthermore, the status of the Foundation as a 501(c)(3) not for profit corporation does not create for its Executive Director an exception from the registration requirements set forth in Section 3 of Part E[12].

 

 

 

/s/ Frank J. Garza

FRANK J. GARZA

Ethics Compliance Officer

 

 

 

Reliance. A person who reasonably and in good faith acts in accordance wit an advisory opinion issued by the Ethics Compliance Officer may not be found to have violated the ethics laws by engaging in conduct approved in the advisory opinion, provided that: (i) he or she requested the issuance of the opinion; (ii) the request for an opinion fairly and accurately disclosed all relevant facts; and (iii) less than five years elapsed between the date the opinion was issued and the date of the conduct in question. (Ethics Code, Part H, Section 10(b)(2)[13]).

 



[1]   Currently codified in Ethics Code Section 2-42

[2]   Currently codified in Ethics Code Division 2: Present City Officials and Employees

[3]   Currently codified in Ethics Code Section 2-63

[4]   Currently codified in Ethics Code Section 2-63, with the following language:

Except as provided by section 2-64 (Exceptions), a person or entity who engages in lobbying must register with the city clerk if:

(1)    with respect to any client, the person or entity engages in lobbying activities for compensation; or

(2)    the person or entity expends monies for lobbying activities.

The terms “compensation” and  “expenditure” are defined in section 2-62 (Definitions)

[5]   Currently codified in Ethics Code Section 2-62(i)

[6]   Currently codified in Ethics Code Section 2-62(i)

[7]   Currently codified in Ethics Code Section 2-62(c) Compensation

[8]   Currently codified in Ethics Code Section 2-63 Persons Required to Register as Lobbyists

[9]   Currently codified in Ethics Code Division 2: Present City Officials and Employees

[10]  Currently codified in Ethics Code Section 2-62(i)

[11]  NOTE:  Compensation and Expenditures definitions have been significantly changed. You must refer to the current code for the full and complete updated information regarding lobbying.  Current  definitionss read as follows from Section 2-62:

(c) Compensation means money or any other thing of value that is received, or is to be received, in return for or in connection with lobbying services rendered, including reimbursement of expenses incurred in lobbying…

(d) Expenditure means a payment, distribution, loan, advance, reimbursement, deposit, or gift of money or anything of value, including a contract, promise, or agreement to make an expenditure, regardless of whether such contract promise, or agreement is legally enforceable….

 

[12]   Currently codified in Ethics Code Section 2-63

[13]   Currently codified in Ethics Code Section 2-89(b)(2)