99-029

City of San Antonio, Texas

Ethics Advisory Opinion No. 29

July 27, 1999

Issued By: The City Attorney’s Office

Whether the City of San Antonio may employ the spouse or other relatives of a City Councilmember.

City Councilmember Raul Prado, District 4, has asked whether the City of San Antonio may employ his spouse or other relative. The issue is whether such employment violates state law or the Ethics Code of the City of San Antonio given Councilmember Prado’s position.

State Law. The State’s nepotism provision is found in Section 573.041 of the Texas Government Code. This section prohibits a public official from appointing or voting for the appointment of an individual, including independent contractors, to a position that is compensated from public funds if the individual is related within the third degree by consanguinity or within the second degree by affinity to the public official or another member of the board. The prohibition, however, applies only to an official who has control over the hiring of an employee.

Generally, employment with the City requires Council action only through the adoption of the budget. Pursuant to the City Charter, the power to "appoint and remove all officers and employees in the administrative services of the City" is vested in the City Manager who may, in turn, vest such hiring power in department heads or offices. In so doing, the actual hiring is done by the department in which the vacancy is had, a process that does not involve or require Council action.

There are, however, certain positions -- the City Manager, the City Clerk, Municipal Court judges, and staff positions in the Councilmember’s office -- that require Council action. Should an individual related to a Councilmember within the requisite degree vie for one of these positions, there may be a violation of the nepotism provisions. For all other City positions of employment with the City, Section 573.041 of the Government Code does not apply, as the City Council does not exercise actual control over the hiring process.

The Ethics Code. The Ethics Code defines a "city official" to include, among others, members of the City Council. As a city official, a Councilmember is required to follow the standards of conduct as set out in the Code.

Part B. Section 2[1] of the Code prohibits City officials from using their position to advance or impede private interests. More specifically, "a city official shall not appoint or employ or vote to appoint or employ any relative within the third degree of consanguinity or affinity to any office or position within the City." Relationships within the third degree of consanguinity include children, parents, grandparents, grandchildren, siblings, nephews and nieces, and uncles and aunts. An individual is related by affinity if the individual is the Councilmember’s spouse or is related by consanguinity to the spouse.

The same rationale as stated above applies under the Ethics Code. Provided the individual does not vie for the position of City Manager, City Clerk, Municipal Court Judge, or staff to the Councilmember, it is unlikely that a Councilmember would be required to appoint or employ an individual within the requisite degree to a position within the City. Therefore, there would be no violation of this section.

SUMMARY

A City official must abide by the standards of conduct as set forth in the Ethics Code of the City of San Antonio, including, but not limited to, using his position to advance or impede the private interests of any person. Pursuant to said standard, a City Councilmember may neither appoint nor vote to employ his spouse or other relative within the third degree of consanguinity or affinity to a position within the City. It is unlikely, however, that such appointment or employment would require the Councilmember’s action, and therefore, no violation would be found.

FRANK J. GARZA

City Attorney