City of San Antonio, Texas

 

Ethics Advisory Opinion No. 12

March 8, 1999

Issued By: City Attorney’s Office

 

Whether a City employee may serve on the board of directors of a non-profit organization.

An employee in a City Department has asked whether he may serve as a member of the board of a non-profit organization that receives monies from the City of San Antonio. The opinion is based on the following facts:

ABC Organization ("ABC") is a non-profit organization that helps in the revitalization of the area along XYZ Road. To aid in its revitalization efforts, Community and Development Block Grant monies have been awarded to the organization. ABC is also considering applying for the Community Building and Neighborhood Planning Program in the coming year, a program administered in conjunction with the Neighborhood Resource Center ("NRC").

An employee in a City Department has been asked by the organization to become a member of its board of directors. Although the position is a non-paid one, as a board member, he will have the power to vote on applying for CDBG grants and city contracts.

Moreover, the employee’s job responsibilities include working with neighborhood goal setting reports and serving as a liaison between the NRC and the Department. He does not, however, sit as a member of the selection team for the Community Building and Neighborhood Planning Program.

The issue is whether serving on the Board in this position violates the Code of Ethics given his employment. Under the Ethics Code of the City of San Antonio, all City employees, whether part-time or full-time, are required to follow the standards of conduct as set forth in the Code.

Improper Economic Benefit. As a general rule, a City employee may not take official action that he knows is likely to have an effect on the employee’s own economic interest or on the economic interest of a non-profit entity for which he serves as an officer. To have an economic effect, it must be distinguishable from the effect on the public in general. If the employee is required to take some official action that would benefit the non-profit entity of which he is a board member, he must notify his supervisor immediately of the conflict. In addition, the employee is required to refrain from any further participation in the matter, and disclose in writing to the City Clerk the economic benefit. The supervisor may reassign the responsibility to another employee.

Therefore, if in his position with the City, the employee has to make a recommendation on a matter for which he is required to take action that may result in an economic benefit for ABC, he must disclose the potential conflict to the City Clerk and recuse himself from any discussion or voting on the matter. This includes any and all action involving the Community Building and Neighborhood Planning Program to which ABC may apply. Though not a legal impediment, the perception is that, if ABC is selected for any City program, it may be as a result of a City employee sitting on the board, thereby calling into question the City’s selection.

nfair Advancement of Private Interests. Part B. Section 2[1] of the Code prohibits all City employees 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 City employee in the instant case must not use his position to advance the interests of ABC 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.

Confidential Information. All City employees 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. Therefore, should ABC apply for any City program, including the Community Building and Neighborhood Planning Program, the City employee must not divulge information confidential in nature, resulting from his position.

Representation of Private Interests. Part B. Section 5[2] of the Code addresses representation of private interests before the City. Section 5(a) states:

"A city . . . employee . . . who is a member of a . . . city body. . . 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."

Section 5(b) further prohibits a City employee from representing for compensation "any person, group or entity, other than . . . himself . . . , or his . . . spouse or minor children, before the city." Therefore, given his position, the employee must not represent ABC before the City Department for which he works or the City.

 

SUMMARY

 

An employee in a City Department may sit on the board of ABC Organization, a non-profit organization. However, he must abide by the standards of conduct as set forth in the Ethics Code. This includes recusing himself and disclosing a potential conflict should one arise, ensuring that no unfair advantages are given to the association because of his position with the City, and refraining from representation of ABC Organization before the City.

 

FRANK J. GARZA

City Attorney



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

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