City of San Antonio, Texas

 

Ethics Advisory Opinion No. 21

 

April 19, 1999

Issued By: City Attorney’s Office

 

Whether the Director of Finance may serve on the Board of a local non-profit organization that receive monies from Alamo Workforce Development, Inc.

 

 

The Director of Finance has asked whether he may serve on the Board of a local non-profit organization that receives monies from Alamo Workforce Development, Inc. The following facts are presented:

 

Octavio Peña is the Director of Finance for the City of San Antonio. He has been asked to sit on the board of a local non-profit organization, Project SER. Project SER funds its programs, in part, from monies awarded by Alamo Workforce Development, Inc. ("AWD").

 

AWD is the local workforce development board that oversees the workforce centers, child care delivery and various job training and support service programs in Bexar, Atascosa, Bandera, Comal, Frio, Gillespie, Guadalupe, Karnes, Kendall, Kerr, Medina and Wilson Counties pursuant to State law. AWD is comprised of three (3) principals, the City of San Antonio, Bexar County, and the Area Judges representing the surrounding 11 rural counties ("AACOG"). The City Council, in conjunction with Bexar County and AACOG, approves the Plan by which AWD accomplishes its mission of job training. This Plan does not, however, include which entities receive monies from AWD for their services.

 

The issue is whether Mr. Peña may serve on the board of Project SER given his position with the City. The Ethics Code defines "city official" to include, among others, all department heads. As a city official, a Department Director is required to follow the standards of conduct as set out in the Ethics Code.

 

Improper Economic Benefit. As a general rule, a City official may not take any official action that he knows is likely to have an effect on, among others, his economic interest or the economic interest of a nonprofit entity for which he serves as an officer 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. In the instant case, it is unlikely that this would occur given the fact that the City neither funds Project SER or AWD nor determines who receives funding from AWD. However, should Mr. Peña be required to take official action in his position as Finance Director on a matter that has an effect on the economic interest of Project SER, he must simply 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 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, Mr. Peña must not use his position as a City official to advance the interests of Project SER 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 officials 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, Mr. Peña should refrain from disclosing information received in his position as Director of Finance to aid Project SER in obtaining monies from AWD or in passage of a Plan that provides monies to Project SER.

 

Representation of Private Interests. Part B. Section 5[2] of the Code prohibits City officials from representing private interests before their City body and/or for compensation. Section 5(b)(3)[3] states that:

 

"In connection with the representation of private interests before the city, a city official . . . shall not:

 

    1. assert the prestige of the official’s . . . city position for the purpose of advancing private interests or;
    2. state or imply that he . . . is able to influence city action on any basis other than the merits."

 

Therefore, given his position as Department Director, Mr. Peña cannot represent Project SER before the Finance Department or the City and should not assert his position in approval of a Plan providing monies to Project SER if and when it comes before City Council.

 

 

SUMMARY

 

A department director must abide by the standards as set forth in the Ethics Code including recusal and disclosure should an economic benefit that is distinguishable from the public in general be conferred on a nonprofit entity for which he serves as an officer and for which he is required to take official action as director. Provided he abides by such standards, the department director may serve on the board.

 

 

 

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 2-47(c)