City of San Antonio, Texas

Ethics Advisory Opinion No. 62

May 13, 2002

Issued By: City Attorney’s Office

 

Whether a business owned by a member of the GKDA may contract with the City of San Antonio.

A member of the Greater Kelly Development Authority has asked whether his business may contract with the City of San Antonio. The following facts are presented:

On September 1, 1999, the Texas Legislature enacted Senate Bill 655, codified in Chapter 378 of the Texas Local Government Code, providing for the establishment of a special district inside the boundaries of Kelly Air Force Base. To comply with the requirement of the new legislation, the City Council passed and approved Ordinance Number 90826, creating the Greater Kelly Development Authority ("GKDA"), on November 4, 1999. The Board of the GKDA is appointed by the City Council and is authorized to, among other things, "oversee[ ] the redevelopment of Kelly Air Force Base."

A member of the Board of the GKDA is currently a majority partner of a small minority woman owned business seeking to contract with the City of San Antonio. Pursuant to the City Charter and the Ethics Code, the member is considering relinquishing ownership in the business to an amount less than 10%.

Because the members of the GKDA are 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 a member’s business may contract with the City if he relinquishes ownership interest to less than 10%.

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 a business in which he holds an economic interest. 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 unlikely that a matter involving the member’s business will come before the GKDA. If, however, that should occur, the member need only recuse himself from discussing and/or voting on the matter and disclose such to the City Clerk.

Representation of Private Interests. Part B, Section 5 of the Code[2] 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 the business before the GKDA, before City staff providing support to the GKDA or before the City Council on an issue involving his duties on the GKDA. The Commissioner may, however, represent himself and/or the business before other boards and commissions and city staff provided he neither assert nor imply that, by virtue of his membership on the GKDA, 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 GKDA 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. 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. If the member owns less than 10% of the business, the business may seek to contract with the City. If, however, the member retains ownership interest of 10% of more in the business, a violation of this section will exist where the business contracts with the City and/or any of its agencies or subcontracts on a City contract.

 

 

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, members of the Greater Kelly Development Authority may not own 10% or more of a business that contracts with or seeks to contract with the City or any of its agencies or subcontracts on a City contract.

 

 

 

 

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