Ethics
Advisory Opinion No. 61
May
9, 2002
Issued
By: City Attorney’s Office
Whether the
employer of a commissioner on the
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
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:
- before that board or body;
- before city staff having responsibility for
making recommendations to, or taking any action on behalf of, that board
or body [ ]; or
- 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
ANDREW MARTIN
City Attorney