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
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.
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