City of San Antonio, Texas

Ethics Advisory Opinion No. 61

May 9, 2002

Issued By: City Attorney’s Office

 

Whether the employer of a commissioner on the San Antonio Housing Authority may contract with the SAHA under the Ethics Code of the City of San Antonio.

A commissioner on the San Antonio Housing Authority has asked whether his employer may contract with the Authority. The following facts are presented:

A commissioner on the San Antonio Housing Authority ("SAHA") is an employee of Habitat for Humanity of San Antonio, Inc. ("HFHSA"). HFHSA is a non-profit organization dedicated to helping build affordable housing for lower income families. Funding for HFHSA "comes through partnerships from individuals, corporations, foundations, churches, and civic groups." Funds from government entities are used to purchase land. HFHSA is interested in acquiring property from the SAHA.

The SAHA, created in accordance with Chapter 392 of the Texas Local Government Code, is responsible for "building and maintaining affordable housing for the citizens [of San Antonio]." The Board of Commissioners of the SAHA are appointed by the City Council and are authorized to, among other things, acquire and sell land, sell bonds, and take other action necessary to construct and operate public housing projects.

Because the SAHA Board is appointed by the City Council, its members are city officials as defined in Part A,Section 2[1] of the Ethics Code and are subject to the standards of conduct set forth therein. The issue is whether the employer of a SAHA commissioner may contract with the SAHA without violating the Ethics Code.

Improper Economic Benefit. As a general rule, a City official may not take any official action that is likely to have an effect on, among others, his economic interest or the economic interest of his employer. The effect must be one that is distinguishable from its effect on the public or a substantial segment thereof. If such action is required, the City official is under a duty to recuse himself and disclose, in writing, to the City Clerk the economic benefit.

It is the understanding of this office that the commissioner has been advised regarding the abstention requirements. Provided he adhere to these requirements, including, but not limited, to refraining from discussing and/or voting on a matter involving HFHSA, there is no violation of this section.

Representation of Private Interests. Part B, Section 5[2] of the Code addresses representation of private interests before the City by a member of a City board. Section 5(a)[3] 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 recommendations 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."

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.

Pursuant to Section 5(a)[4], the Commissioner may not represent HFHSA before the SAHA, before City staff providing support to the SAHA, or before the City Council on the issue of the sale to HFHSA. The Commissioner may, however, represent himself and/or HFHSA before other boards and commissions and city staff provided he neither assert nor imply that, by virtue of his membership on the SAHA, he is able to influence City action.

Prohibited Financial Interest in Contract. Part B, Section 10[5] prohibits City officers from having a financial interest in a contract with the City or its agencies. Under this section, a City officer includes, among others, "members of any board or commission which is more than advisory in function." Because the SAHA is more than advisory in nature, the individual is a City officer for the purposes of this section.

To be in violation of this section, the officer must have a financial interest in a contract with the City or its agencies, such as the San Antonio Water System or City Public Service. Unlike the SAWS and/or CPS, no provision exists in Chapter 392 of the Texas Local Government Code to empower the City to assume the powers of the SAHA. As such, the SAHA is not a City agency.

Moreover, a violation of this section requires that the officer have a financial interest in such a contract. A financial interest includes, but is not limited to, a contract in which the officer, the officer’s parent, child or spouse or a business entity in which any of those named owns 10% or more of the voting stock or shares or 10% or more of the fair market value of the business that is a party to a City contract. Because the individual is employed by HFHSA, he does not have the requisite financial interest. This, coupled with the fact that the SAHA is not an agency of the City, renders no violation of this section where HFHSA contracts with the SAHA.

 

SUMMARY

Members of Boards and Commissions appointed by the City Council are governed by the standards of conduct set forth in the Ethics Code of the City of San Antonio. Pursuant to said standards, a commissioner is required to recuse and disclose on matters that may affect the economic interests of his outside employer. Provided the commissioner remain cognizant of this standard as well as all of the standards of conduct under the Code, there is no violation of the Ethics Code for the Commissioner’s employer, Habitat for Humanity San Antonio, to contract with the San Antonio Housing Authority.

 

 

 

ANDREW MARTIN

City Attorney



[1]   Currently codified in Section 2-42

[2]   Currently codified in Section 2-47

[3]   Currently codified in Section 2-47(a)

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

[5]   Currently codified in Section 2-52