City of San Antonio, Texas

Ethics Advisory Opinion No. 10

August 2, 1999

Issued By: City Attorney’s Office

Whether a City employee and member of a City Commission may serve as Executive Director of the ABC Fund.

A City Department has asked whether a City employee and member of a City Commission may serve as Executive Director of the ABC Fund. The following facts are presented:

Mr. John Doe is an employee with the City of San Antonio and a member of a City Commission ("Commission"). A local organization voted to support Mr. Doe for the position of Executive Director of the ABC Fund (the "Fund").

The Fund is a statutory trust governed by a nine (9) member board of trustees, independent of the control of the City. The Board is responsible for holding the fund’s assets for the benefit of its members and retirees and their spouses. To administer the fund, the Board may employ an executive director.

The issue is whether Mr. Doe may serve as Executive Director of the Fund without violating State law or the Ethics Code.

Texas Constitution. Article XVI, Section 40 of the Texas Constitution states that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument, except [as provided herein]." What distinguishes an "office" from mere "employment" is "whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). Using this basis, Texas courts focus on the independence exercised by the individual, holding that individuals who are under the direction and control of others are not public officers for purposes of Article XVI, Section 40.

Mr. Doe is employed by the City in one of its departments. His duties include, among others, responding to fire alarms in his district and supervising the procedures at a site until relieved of command by a superior officer, duties that are under the supervision of another individual. Applying the Aldine test, Mr. Doe is under the direction and control of his superior officers. Therefore, he does not hold a "civil office" as that term is used in Article XVI, Section 40 of the Texas Constitution.

Moreover, Mr. Doe is a member of a City Commission. This Commission is authorized to make recommendations for changes in districts and for setting the boundaries in said districts. Although the Commission is considered "more than advisory in nature" under the City Code, the actions by the Commission are, for the most part, recommendations that require City Council action. Therefore, because the Commission does not exercise its functions "largely independent of the control" of the City Council, membership is not a "civil office."

In sum, there is no violation of Article XVI, Section 40 of the Texas Constitution. Neither employment by the City nor membership on the Commission is a "civil office" as used therein.

Ethics Code. Mr. Doe is both a City official and a City employee as defined in the Ethics Code. As such, he is required to follow the standards of conduct as stated therein.

Improper Economic Benefit. As a general rule, a City official or a City employee may not take any official action that may affect his economic interest or the economic interest of his outside employer distinguishable from its effect on members of the public. If such occurs, the City official or employee is under a duty to recuse himself and disclose, in writing, to the City Clerk the prohibited conduct.

In the instant case, it is unlikely that this would occur given the fact that, although funded in part by the City, the Fund is independent of the City’s control. Mr. Doe, as either an employee or City official would not be required to take official action with respect to the Fund. However, the perception that an improper benefit exists may be drawn from the fact that the City and the local organization ("Organization") are currently in negotiations over the collective bargaining agreement, a process in which Mr. Doe is acting as the Organization’s chief negotiator. Therefore, should Mr. Doe be required to take official action in his position as either a City employee or a Commission member, on a matter that has an effect on the economic interest of the Fund, he must recuse himself from the matter and file the appropriate form with the City Clerk.

Unfair Advancement of Private Interests. Part B. Section 2[1] of the Code prohibits all City officials and employees from using their position to unfairly advance private interests. More specifically, a City employee "may not enter into any agreement . . . with any other person that official action by the . . . employee will be rewarded . . . .by the other person [ ]." Given this standard of conduct, Mr. Doe must not use either position he holds to advance the interests of the Fund or give the impression of such. Failure to abide by this standard of conduct is a violation of the Ethics Code and subject to the penalties therein.

Representation of Private Interests. Part B. Section 5[2] of the Code addresses representation of private interests before the City. This section prohibits a City officer or employee from representing for compensation any group before the City.

The statute that addresses the trust for the Fund provides for employment of an executive director and staff to administer the fund. If, as executive director, Mr. Doe must appear before the City, a violation of this section may be found. Therefore, should Mr. Doe serve as the Fund’s executive director, he must not represent the Fund for compensation before the City, which not only includes elected city officials, but also city employees.

Conflicting Outside Employment. Generally, a City employee may not engage in outside employment, which may influence the performance of the employee’s official duties. More specifically, "a City ... employee shall not provide services to an outside employer related to the . . . employee’s City duties." His essential job functions as a City employee are stated above. These services do not appear to be related to the job requirements of executive director. Therefore, as long as the services Mr. Doe provides to the Fund are not related to his duties with the City, there is no violation of this standard of conduct. He must, however, comply with Section 2/4.18, Outside Jobs, of the Department Rules and Regulations. Section 2/4.18 requires the employee to obtain written approval from the Department head to work outside the City Department prior to engaging in outside employment.

Public Property and Resources. Section 7[3] prohibits City employees from using "City facilities, personnel, equipment or supplies for private purposes." Mr. Doe, therefore, must not use City equipment or perform said work on City time. Provided he complies with this standard of conduct, there should be no violation of this section.

 

SUMMARY

A City employee and City commission may serve as Executive Director of the ABC Fund. However, should Mr. Doe serve as the Fund’s executive director, he must not represent the Fund for compensation before the City. Moreover, the perception is great that, by virtue of his employment, the interests of the Fund are advanced. Though no legal impediment exists that prevents the employee from serving as Executive Director, he should be aware of the potential conflicts and the perception that a conflict exists.

 

 

 

FRANK J. GARZA

City Attorney



[1]   Currently codified in Ethics Code Section 2-44

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

[3]   Currently codified in Ethics Code Section 2-49