Ethics Advisory Opinion No. 15
March 30, 1999
Issued By: City Attorney’s Office
Whether a member of the Board of Adjustment may purchase houses from an individual who appears frequently before the Board.
A member of the Board of Adjustment has asked whether he may purchase houses from an individual who appears frequently before the Board. The opinion is based on the following facts:
A member of the Board of Adjustment is also an administrator of a family trust. This trust is in need of purchasing two (2) or three (3) houses for properties owned by the trust. He has expressed interest in contacting an individual regarding such purchases. This individual, however, appears frequently before the Board regarding house moving and selling.
The issue is whether the board member may contact the individual regarding the purchase of houses given his membership on the Board of Adjustment ("BOA"). Part A. Section 2. 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, the board member 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 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. The board member has stated that he would like to contact the individual regarding the purchase of two or three houses. If he purchases a house from this individual, it may be perceived that action taken by the board member on a matter for which the individual appears before the BOA has resulted in an improper economic benefit. Therefore, the board member should disclose the potential conflict and recuse himself from any discussion on any matter dealing with the individual while this transaction is pending.
Unfair Advancement of Private Interests. Part B. Section 2 of the Code prohibits City officials from using their position to advance private interests. More specifically, "[a] city official . . . may not enter into an agreement . . . with any other person that official action by the official . . . will be rewarded or reciprocated by the other person, directly or indirectly." In the instant case, the board member must not use his position as a board member to advance his interests or the interests of the individual in negotiating a purchase 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.
A member of the Board of Adjustment may purchase houses from an individual who appears before the Board of Adjustment. However, should he purchase a house from this individual, the board member must not only disclose in writing to the City Clerk and recuse himself from discussion on any matter for which the individual appears before the Board, but also refrain from entering into any agreement to take requested action in return for a benefit.
FRANK J. GARZA