Ethics Advisory Opinion No. 35

 October 6, 1999

Issued By:  City Attorney’s Office

 

 Whether a member of the zoning commission who resides in the general vicinity of a proposed zoning change may participate in the discussion of and voting on said change.

  

A member of the Zoning Commission has asked whether he may participate in the discussion of and voting on a zoning change located within the general vicinity of his residence.  The following facts are presented:

 

The Zoning Commission, comprised of eleven members, is authorized to make recommendations for changes in zoning districts and for setting the boundaries in said districts.  Although the commission is considered "more than advisory in nature" under the Ethics Code, the actions by the commission are, for the most part, recommendations that require City Council action.

 

On October 19, 1999, the Zoning Commission is scheduled to hear Zoning Case Number Z99210.  This case involves a request from Barrett Construction Company to rezone the following areas:

 

·                     “MM” Second Manufacturing District and “B” Residence District to “B-1” Business District, 1.31 acres, 2.34 acres and 5.02 acres out of NCB 11186;

·                     “MM” Second Manufacturing District to “B-3” Business District, 12.78 acres out of NCB 11186 and NCB 17380;

·                     “B” Residence District to “B-2” Business District, 7.37 acres out of NCB 11186;

·                     “B” Residence District, “H” Local Retail District and “MM” Second Manufacturing District to “I-1” Light Industry District, 67.97 acres out of NCB 11186;

·                     “B” Residence District, “H” Local Retail District and “R-3” Multiple Family Residence District to “R-1” Single Family Residence District 24.01 acres out of NCB 11186 and NCB 17366; and

·                     “B” Residence District and “H” Local Retail District to “R-5” Single Family Residence District, 158.89 acres out of NCB 11186.

 

City staff recommends denial of the request as proposed.  However, it is recommended that a portion of the property be zoned “B-2” and the remainder be zoned “R-5.”  In so doing, the zoning change would provide neighborhood support business, as well as provide compatibility with existing residential development and businesses in the area.

 

Notice of such change has been provided to those owners of real property within 200 feet of the property proposed to be changed as required under Section 211.007(c) of the Texas Local Government Code.  This 200 foot boundary line extends to, among other places, NCB 12730, Block 211, Lot 14. 

 

A member of the Zoning Commission who resides within the general vicinity of the proposed zoning change is requesting that he be allowed to participate in discussions and vote on the change.  The legal description of his property is NCB 12730, Block 211, Lot 13, a residence that does not lie within 200 feet from the proposed zoning change.  Rather, the property abuts the 200 foot boundary line.  He has further indicated that, as a practical matter, he investigates all zoning cases in his district, meeting with developers and neighborhood associations on every case, and has done so in this case.

 

The issue is whether, under the City of San Antonio Ethics Code, a member who resides in the general vicinity of a proposed zoning change may participate in the discussion of and voting on said change.  The resolution of such issue is determined on a case by case basis, given the facts as presented.

 

Part A, Section 2 of the Code[1] defines a City official to include, among others, “members of all boards, commissions (except the Youth Commission whose members are minors), committees, . . . created by the City Council pursuant to federal or state law or City ordinance [ ]..  As a city official, members are required to follow the standards of conduct as set forth in the Code.

 

Improper Economic Benefit.  Under the Ethics Code, 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 a substantial segment of the public.  If such occurs, the City official is under a duty to recuse himself and disclose, in writing, to the City Clerk the economic benefit. 

 

Moreover, Section 35-3021 of the City Code states, as follows:

 

“A member shall not vote or participate as a member in any matter before the Commission if the member has any interest in this matter, whether such interest is direct or indirect, financial or otherwise.  In any case, where the question of a member’s interest is raised, the Chairman shall rule on whether the member should be disqualified.

 

In making such determination, the proximity of the Commissioner’s property to the proposed rezoning site is considered.  The more remote the property, the less impact a zoning change will have; the closer the property to the proposed change, the greater probability the change will impact the value of the Commissioner’s property.  Previously, it has been ruled that, because of the nature of zoning, a Commissioner who resides within two (2) blocks from the proposed zoning change will more than likely be affected by such change.  Therefore, the Commissioner should and has recused himself.

 

Although in the instant case the Commissioner has stated that he will not in anyway change or benefit from this situation in the neighborhood, given the proximity to the Commissioner’s residence, within two blocks of the property to be rezoned, coupled with the magnitude of the proposed zoning change, the effect of any action taken on this case is more than likely to have an effect on the Commissioner’s economic interest, the value of his residence.  Therefore, it is recommended that he should recuse and disclose the situation, refraining from participating in or voting on the matter.

 

Unfair Advancement of Private Interests.  Part B. Section 2 of the Code[2] 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 [ ] any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons.  Under this section, the Commissioner may not use his position as a City official to advance the interests of either the neighborhood in which he resides and/or the business proposing the zoning change. 

 

Representation of Private Interests. Part B, Section 5 of the Code[3] addresses representation of private interests and includes those issues brought forth by a member of a board before the City.  Section 5(a)[4] states:

 

“A city official . . . who is a member of a board . . . shall not represent any person, group or entity:

 

1.      before that board or body;

2.      before city staff having responsibility for making recommendation to, or taking any action on behalf of, that board or body; or

3.      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.

 

Under section 5(a)[5], the Commissioner may not represent his neighborhood or himself before the Zoning Commission, before City staff that provides support to the Zoning Commission or before the City Council on a matter that came before the Zoning Commission. The Commissioner may, however, represent himself before other boards and commissions and city staff as long as the staff contacted does not provide support to the Zoning Commission.

  

SUMMARY

 Members of the Zoning Commission must abide by the standards as set forth in the Ethics Code.  Pursuant to such standards, Commissioners are required to recuse and disclose regarding any official action that they know is likely to affect their economic interests, among others.  The economic impact, however, must be distinguishable from the economic impact on the public, or a segment thereof, and must be evaluated on a case by case basis.  Given the magnitude of the proposed zoning change and the proximity of the Commissioner’s residence, the member should recuse and disclose with the City Clerk.

FRANK J. GARZA
City
Attorney



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

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

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

[4]   Currently codified as Section 2-47(a)

[5]   Currently codified in Ethics Code Section 2-47(a)