City of San Antonio, Texas

 

Ethics Advisory Opinion No. 6

 

February 23, 1999

Issued By: City Attorney’s Office

 

May an individual whose firm does work for the San Antonio Water Systems and the City of San Antonio serve as a member of the Capital Improvements Advisory Board?

Mark R. Johnson, P.E., has asked whether he may serve as a member of the Capital Improvements Advisory Board given that the firm for whom he is employed with does work for the San Antonio Water Systems and the City of San Antonio. The following facts are presented:

Mr. Johnson, an associate with Bury & Pittman-SA, Inc., was appointed to the Capital Improvements Advisory Board ("the Board"). Bury & Pittman-SA, Inc. is a consulting firm that does work for the San Antonio Water Systems ("SAWS") and the City of San Antonio. On occasion, Mr. Johnson, represents the firm’s clients before the City Council, the Planning Commission, and the Board of Adjustments.

The issue is whether serving on the Board violates the Code of Ethics given his employment. Part A. Section 2[1]. of the Code of Ethics states that an "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..." Under this definition, Mr. Johnson is a City official, and as such, must follow the standards of conduct as set out in the Code.

Improper Economic Benefit. As a general rule, a City official may not take official action that he knows is likely to have an effect on, among others, his economic interest or on the economic interest of his outside employer that is distinguishable from the effect on the public in general. 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. Mr. Johnson has informed this office that his outside employer, Bury & Pittman-SA, Inc., does work for the City of San Antonio and SAWS. Therefore, if the Capital Improvements Advisory Board has to make a recommendation on a matter for which Mr. Johnson is required to take action that may result in an economic benefit on his employer, he must disclose this potential conflict to the City Clerk and recuse himself from any discussion or voting on the matter.

Representation of Private Interests. Part B. Section 5[2] of the Code addresses representation of private interests and includes those issues brought forth by a member of a board before the City. Section 5(a)[3] states:

"A city official . . . who is a member of a board . . . shall not represent any person, group or entity:

before that board or body;

before city staff having responsibility for making recommendation to, or taking any action on behalf of, that board or body; or

before a board or other city body which has appellate jurisdiction over the board or body of which the city official or employee is a member, if any issue relates to the official’s or employee’s duties."

Under section 5(a[4]), Mr. Johnson must not represent his firm and its clients in the above situations. Pursuant to section 5(b[5]), Mr. Johnson is allowed to represent his firm and its clients before other boards and commissions and city staff as long as the staff contacted does not provide support to the Capital Improvements Advisory Board.

Part B, Section 10[6] of the Ethics Code prohibits city officers from having a financial interest in a contract with the City or its agencies, including SAWS. This section is not subject to violation for two reasons. First, city officer is defined as a person who is a member of a board or commission which is more than advisory in function. The SAWS Board is an advisory board. Secondly, in order for Mr. Johnson to have a financial interest, he must own 10% or more of the voting stock or shares of Bury & Pittman or own 10% or more of the fair market value of the business. Mr. Johnson is an Associate of the company, not partial owner. However, even if Mr. Johnson were an owner, it would not be a violation of the Code because he is not a city officer under this section of the code.

SUMMARY

 

A member of the Capital Improvement Advisory Committee whose firm does work for the San Antonio Water Systems ("SAWS") and the City of San Antonio and who, on occasion, represents the firm’s clients before the City Council, the Planning Commission, and the Board of Adjustments must abide by the standards of conduct as set forth in the Ethics Code including conduct governing economic benefits and representation of private interests. As long as he abides by such standards, he may serve on the Committee given his employment.

 

 

FRANK J. GARZA

City Attorney



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

[2]   Currently codified in Ethics Code Section 2-47

[3]   Currently codified in Ethics Code Section 2-47(a)

[4]  Currently codified in Ethics Code Section 2-47(a)

[5]   Currently codified in Ethics Code Section 2-47(b)

[6]   Currently codified in Ethics Code Section 2-52