City of San Antonio, Texas

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 San Antonio River Walk." Each year, the organization, along with private business, sponsors a Mud Festival on the River Walk. As part of the Mud Festival, candidates vying for Mud King and Mud Queen raise monies to benefit the Paseo Del Rio Association ("Association"). The individual who raises the most monies is selected as the Mud King and the Mud Queen.

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 San Antonio payroll as an employee, whether part-time or full-time." As an employee, she is required to follow the standards of conduct set forth in the Ethics Code of the City of San Antonio. The issue is whether, given her City employment, the individual may run for Mud Queen.

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 Rio to run for Mud Queen, she is not in violation of this section.

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 San Antonio equipment in raising monies for this event nor perform any such fundraising on City of San Antonio time. It is the understanding of this office that any requests for monies and/or fundraising will be performed after work hours and will not interfere with the employee’s duties with the City. Provided that this is adhered to, there is no violation of this section.

 

 

SUMMARY

City employees are governed by the standards of conduct set forth in the Ethics Code of the City of San Antonio. Pursuant to said standards, an employee may not use her City position to obtain monies for her quest to be Fiesta Mud Queen 2003. These monies are not a prohibited gift under the Code as any solicitation and/or acceptance falls under the civic cause exception, therefore, the City employee may run for Fiesta Mud Queen.

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



[1]   Currently codified in Section 2-42(n)

[2]   Currently codified in Section 2-44

[3]   Currently codified in Section 2-45

[4]   Currently codified in Section 2-45(a)(1)

[5]   Currently codified in Section 2-45(a)(2)

[6]   Currently codified in Section 2-45(a)(2)

[7]   Current language in Section 2-45 (a)(2) reads “meals in an individual expense of $50 or less at any occurrence, and no more than a cumulative value of $500 in a single calendar year from a single source.”

[8]   Currently eleven (11) exceptions

[9]   Currently codified as Sections 2-45 (a)(1) and (a)(2)

[10]  Currently eleven (11)

[11]  Currently codified in Section  2-47(b)

[12]  Currently codified in Section  2-49