City of San Antonio, Texas

 

Ethics Advisory Opinion No. 54

 

May 7, 2001

Issued By: City Attorney’s Office

 

Whether members of City boards and commissions who meet with City staff regarding project related issues are lobbying as that term is defined in the Ethics Code.

 

 

Two members of City boards have inquired as to whether their interaction with City staff constitutes “lobbying” as defined in Part E, Lobbyists, of the Ethics Code of the City of San Antonio (currently codified in Ethics Code Division 5: Lobbyists).  The following facts are presented:

 

The Board of Adjustment (the “BOA”) is created by Section 35-3031 of the City Code, and its members have all the powers and duties as provided in Chapter 211 of the Texas Local Government Code.  These powers include, but are not limited to, hearing and deciding appeals from enforcement of and special exceptions to the zoning ordinance, authorizing variances when applicable.  Because its decisions are appealable to the district court, county court or county court of law where an individual believes that the decision is illegal, the BOA is more than advisory in nature.

 

The Open Space Advisory Board, on the other hand, is an advisory board to the Planning Commission and the City Council on matters relating to the implementation of the Open Space Plan.  In addition, the Board provides recommendations to staff on issues regarding open space.

 

A member of the Board of Adjustment and a member of the Open Space Advisory Board are architects in private practice.  In the course of their professional duties, each of these members meets with City staff to discuss project related issues.  Such issues may include building code matters or requirements of the Unified Development Code.  The issue is whether, in making such presentations, these board members are “lobbying” as that term is defined in Part E of the Ethics Code.[1]


 

Section 2(h) of Part E of the Ethics Code defines lobbying as follows:

“any oral or written communication . . . to a city official, made directly or indirectly by any person in an effort to influence or persuade an official to favor or oppose, recommend or not recommend, vote for or against, or take or refrain from taking action on any [public policy issue of a discretionary nature pending or impending before city council or any board or commission].”

 

Public policy issues include all proposals for action such as ordinances, bids, and recommendations.  Although it does not include the “day-to-day application, administration, or execution of city programs and policies such as permitting, platting and zoning matters,” it does include any revision of the City of San Antonio Unified Development Code and all matters before the BOA.  Where an individual attempts to influence a member of the City Council, a high level employee in City management, a member of a board that is more than advisory in nature, or a member of the Historic and Design Review Commission, on such a public policy issue, he is lobbying as that term is defined under the code.  Moreover, if the individual lobbying receives $1,000 or more in a calendar quarter, he is required to register as a lobbyist pursuant to Section 3 of Part  E [2].

 

In the instant case, the interactions between the two board members and city staff are those in the normal course of business.  Such interactions may include meetings with a plans examiner or manager to discuss a project in development or a code issue.  At times, however, these individuals and City staff may differ on the interpretation of the code.  Although these individuals may attempt to influence staff regarding the interpretation, such action is part of the day to day administration of city permits and/or other programs.  Moreover, these board members do not contact members of the City Council, high level employees in City management, members of boards or commissions that are more than advisory in nature, or members of the Historic and Design Review Commission regarding matters of interpretation or other such issues relating to pending projects.  Provided they do not contact such individuals and provided that the matters are ones done in the normal course of business with the City, the board members are not “lobbying” as that term is defined in Section 2 of Part E of the Code[3].

 

SUMMARY

 

A member of the Board of Adjustment and a member of the Open Space Advisory Board are not “lobbying” as that term is defined in Section 2 of Part E of the Ethics Code[4]  when either individual meets with City staff to discuss a project in development or a code issue.

 

 

 

 

FRANK J. GARZA

 

City Attorney

 

 



[1]   Currently codified in Ethics Code Section 2-62(i).Current Ethics Code defines lobbying as follows:

                “…any oral or writtend communication (including an electronic communication) to a city official, made directly or indirectly by any person in an effort to influence or persuade an official to favor or oppose, recommend or not recommend, vote for or against, or take or refrain from taking action on any municipal question. …”

 

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

[3]   Currently codified in Ethics Code Section 2-62

[4]   Currently codified in Ethics Code Section 2-62