Ethics Advisory Opinion No. 52
March 26, 2001
Issued By: City Attorney’s Office
Whether an Assistant Director of a City Department may serve on the Carver Development Board.
An
Assistant Director of a City Department has asked whether he may serve on the
Carver Development Board. The following
facts are presented:
The Department of Community Initiatives is comprised of a
number of divisions including, among others, the
Pursuant
to its bylaws, the Board is comprised of no less than 12 members nor more than
27 members, exclusive of ex-officio members.
Members do not receive compensation for services unless voted and
determined on by the Board. Moreover,
members are prohibited from “engag[ing]
in any activity that would permit them to profit or materially benefit from
activities sponsored by the
An
assistant director of a City Department has expressed interest in becoming a
member of the board. The assistant
director is responsible for, among other things, “assisting in the supervision, planning and coordination of the
activities and operations of [his] department” including all
divisions. This responsibility extends
to the assisting in the administration of the City’s annual contract, formal
and informal bid process.
Currently,
the City is in the process of approving a development agreement with the Carver
Development Board for construction of improvements to the City owned Little
Carver Building. The contract is between
the Board and an outside construction company and is being funded by the Board.
The
issue is whether the assistant director may serve on the board of the Carver
Development given his position with the City.
The Ethics Code defines a “city official” to include, among others, all
assistant department heads. As a city
official, the assistant department director is required to follow the standards
of conduct as set out in the Ethics Code.
Improper
Economic Benefit. As a general rule, a City official may not
take any official action that he knows is likely to have an effect on, among
others, his economic interest or the economic interest of a nonprofit entity on
which the official serves in a policy making position. Should such occur, the City official is
required to recuse himself immediately, refraining from any further
participation in the matter, and disclose in writing to the City Clerk
the economic benefit. Therefore, if an
issue involving the Board requires action by the City official in his position
as an assistant director, he must recuse himself from any and all discussions,
including voting. Moreover, he must
disclose the situation to the City Clerk’s Office and his director.
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.” Under this section, the assistant
director must not use his position as a City official to advance the interests
of the Carver Development Board or give the impression of such. Therefore, it
is advised that, if a matter of the Board comes before the assistant director
in his official position with the City, the director recuse and disclose the
matter, thereby eliminating any perception of impropriety.
Confidential
Information. All City officials are prohibited from using
their position to obtain confidential information for purposes other than the
performance of their duties and/or from intentionally or knowingly disclosing
such information gained as a result of their position. Pursuant to that end, the director must
refrain from disclosing information received in his position to aid the Board
in obtaining favorable treatment from the City.
Representation
of Private Interests. Part B,
Section 5 of the Code[2] prohibits
City officials from representing private interests before their City body
and/or for compensation. Therefore, given his position as an assistant
director, the individual may neither represent the Board before his department
or before any member of City Council or City staff nor assert his position in
approval of any project between the City and the Board.
SUMMARY
An
assistant department director must abide by the standards as set forth in the
Ethics Code, including recusal and disclosure, in order to serve on the Carver
Development Board. Provided the Assistant Director abides by the City’s Ethics
rules, there is no prohibition on serving on the board.
FRANK
J. GARZA
City
Attorney