City of San Antonio, Texas

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 Carver Community Cultural Center ("Center"). The building that houses the Center was conveyed by the Carver Development Board (“Board”), a Texas non-profit corporation, to the City in 1989. Since that time, the City has made improvements to the building through the CDBG Funds and as part of the Capital Improvement Program, while occupying and maintaining said building. The Board continues to support the Center in part, not only monetarily, but also as provided for in its bylaws.

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 Carver Community Cultural Center or the corporation.”

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 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 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