Ethics
Advisory Opinion No. 60
May
2, 2002
Issued
By: City Attorney’s Office
Whether a City
employee may run for Fiesta Mud Queen.
An employee has asked whether she may run
for Fiesta Mud Queen 2003. The following facts are presented:
The Paseo Del Rio is a nonprofit
organization that "promote[s] and support[s] the
A City employee has expressed an interest in
running for the Paseo Del Rio Fiesta Mud Queen 2003. If permitted, the
individual will hold fundraisers to collect monies for the Association. In
addition, the employee will be requesting support from lobbyists and those
doing business with the City. Part A, Section 2 (o)[1]
defines an employee as "any person listed on the City of
Unfair Advantage of Private Interest. Part B, Section 2 of the Code[2] prohibits
all City employees 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 [ ] herself) any form of special consideration,
treatment, exemption, or advantage beyond that which is lawfully available to
other persons." Representations that an employee’s position with the
City provides an advantage to another individual causes the appearance of
impropriety and may, depending on the representation, be a direct violation of
the Ethics Code.
The individual at issue is employed as a
senior executive secretary to a member of the City Council. Among her job
functions, she has the responsibility to perform all secretarial and
administrative duties, including, but not limited to, screening calls and
visitors and maintaining the Councilman’s calendar. Moreover, because of her
position, she may interact with individuals seeking business with the City as
well as registered lobbyists to, among other things, schedule meetings between
these individuals and the City councilman. Provided she neither give favorable
treatment to those who support her quest to be Mud Queen, she does not violate
this rule. If, however, she represents to any individual that she can provide
special consideration to that person based on her position with the City in
return for supporting her for Mud Queen, she violates this rule.
Gifts. A gift is defined as "a voluntary transfer of property
(including the payment of money) or the conferral of a benefit having pecuniary
value, [ ] unless consideration of equal or greater value is received by the
donor." Part B, Section 3[3] speaks
to the prohibition on gifts. This section has two rules, as follows: Section
3(a)(1)[4]
prohibits an employee from soliciting or accepting any gift that reasonably
tends to influence or reward official conduct or that the employee knows is
being given to influence or reward official conduct; and Section 3(a)(2)[5]
prohibits an employee from soliciting or accepting anything of value from a
person or business entity that does business with the City, seeks to do
business with the City, or a registered lobbyist.
Section 3(a)(2)[6]
has two (2) exceptions to its rule. If the gift is nominal in value or it is a
meal greater than $100 at one occurrence[7],
the employee may accept the gift. In addition to these two (2) exceptions, nine
(9)[8] other
exceptions apply to both Section 3(a)(1) and Section 3(a)(2)[9].
One of these nine (9)[10]
exceptions is a solicitation for civic and/or charitable causes. (currently
codified in Section 2-45(b)(6)). A civic cause is one that is "concerned
with or contributory to general welfare and the betterment of life for the
citizenry of a community or enhancement of its facilities." Because
the monies raised by the individuals vying for Mud King and Mud Queen are used
to promote the mission of the Association, including, but not limited to "advocating
the preservation of the River Walk’s character and ambiance," these
monies are for a civic cause. Therefore, solicitation and/or acceptance of such
monies is not a gift prohibited under the Ethics Code.
Representation of Private Interest. Part B, Section 5(b)[11] prohibits
a City employee from representing any entity, other than herself, her spouse,
or minor children, before the City for compensation. Representation before the
City includes actions by word or conduct made to induce either the City Council
and/or City staff to take action on behalf of the outside entity. Because the
City employee is not receiving compensation from the Paseo del
Public Property and Resources. Part B, Section 7[12] of
the Code prohibits City employees from using "City facilities,
personnel, equipment or supplies for private purposes." Pursuant to
this section, the employee may neither use City of
SUMMARY
City employees are governed by the standards
of conduct set forth in the Ethics Code of the City of
However, the employee may not solicit or
fundraise for this event using City equipment and/or on City time. The employee
must remain cognizant of these as well as all of the standards of conduct under
the Code, many of which are discussed in this opinion.
ANDREW MARTIN
City Attorney