City of San Antonio, Texas

 

Ethics Advisory Opinion No. 13

March 11, 1999

Issued By: City Attorney’s Office

 

Whether an organization may hire a member of a City of San Antonio Board to be the Executive Director of the organization.

 

The ABC Organization has asked whether it may hire a member of a City Board, to be the Executive Director of the Organization. The following facts are presented:

The ABC Organization ("ABC") is a non-profit organization which has entered into a Delegate Agency Contract with the City of San Antonio, dated February 4, 1999, to provide information, networking and technical assistance for various groups through newsletters and workshops. Pursuant to this contract, ABC, in cooperation with the City’s Planning Department, will provide a number of services, including:

Hosting four (4) programs for neighborhood associations and groups regarding, among other things, programs offered by the City of San Antonio;

Evaluating applications for the CBNP neighborhood planning service programs;

Providing volunteer faculty as part of the CBNP Neighborhood Leader Training program;

Coordinating the administrative aspects of resolving conflicts that arise within neighborhood organizations; and

Facilitating Goal and Strategy Sessions as requested by the Planning Department.

The Executive Director of ABC is a full-time position whose responsibility is to manage the ABC by, among other things, acting as a liaison between and among neighborhood groups and the City.

The issue is whether, under the City of San Antonio Ethics Code, ABC may hire the board member as its Executive Director given his position as a board member on a City Board. Part A. Section 2[1]. of the Code defines a City official to include, among others, members of all boards and commissions created by the City Council pursuant to federal or state law or City Ordinance. Under this definition, the board member is a City official, and as such, he is required to follow the standards of conduct as set forth in the Code.

Improper Economic Benefit. As a general rule, a City official may not take any official action that "is likely to have an effect on [his] economic interest that is distinguishable from its effect on members of the public in general or a substantial segment thereof." If such occurs, the City official is under a duty to recuse himself and disclose, in writing, to the City Clerk the prohibited conduct. Given the facts presented, it is unlikely that a matter of ABC would come before the City Board. Should it occur, however, the board member would be required to disclose the potential conflict to the City Clerk and recuse himself from any further participation in the matter.

Prohibited Financial Interest in Contract. Part B. Section 10[2] prohibits City officers from having a financial interest in a contract with the City or its agencies, including SAWS. Under this section, a City officer includes, among others, "members of any board or commission which is more than advisory in function." Because the City Board at issue is an advisory board, the board member is not a City officer for purposes of this section. Therefore, there is no violation of the Ethics Code.

Delegate Agency Contract. The contract between the City and ABC contains a conflict of interest provision stating:

"[ABC] certifies, and this CONTRACT is made in reliance thereon, that neither it, its individual officers, employees or agents, nor any person having a substantial interest in this CONTRACT is an officer or employee of CITY or any of its agencies."

Although "officer" is not defined in the contract, the intent was to prohibit elected officials and members of boards and commission that are more than advisory in nature from having a substantial interest in a contract with the City. Therefore, as stated above, because the City Board at issue is advisory in nature, the board member is not a City officer under the contract, and no violation of the conflicts of interest provision exists.

 

SUMMARY

 

The ABC Organization ("ABC") may hire a member of a City Advisory Board to serve as its Executive Director. However, should a matter involving ABC come before that Board, the board member is required to recuse himself and disclose the prohibited conduct to the City Clerk.

 

FRANK J. GARZA

City Attorney



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

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