Ethics
Advisory Opinion No. 63
May
28, 2002
Issued
By: City Attorney’s Office
Whether an
employee of the City who also serves as the Executive Director of Keep San
Antonio Beautiful may attend meetings as the director on City time and other
related question.
The Environmental Services Department has
asked whether an employee of the City who also serves as the Executive Director
of Keep San Antonio Beautiful may attend meetings as the director on City time.
The following facts are presented:
Ordinance Number 53176, passed and approved
on December 18, 1980, established the Clean Community Commission
("Commission"). The purpose of the Commission is to advise the City
Council on ways to reduce the amount of litter in the City. To aid this effort,
a Clean Communities System Office was established in the Department of Public
Works. In addition to the office, the Department provides the services of one
(1) staff person to act as Executive Director of the program and as staff
liaison for the Commission.
Subsequently, on June 6, 1985, the
Commission was renamed Keep San Antonio/Bexar County Beautiful
("KSAB") pursuant to Ordinance Number 60828. The purpose of KSAB,
however, remained the same, to advise the City Council on ways to reduce litter
in the City.
The Executive Director of KSAB is also the
City’s Clean Community Coordinator ("Coordinator"), in which capacity
she is responsible for implementing the Clean Community Program. As a City
employee, she is subject to the standards of conduct set forth in the Ethics
Code of the City of
- Whether the Coordinator may be present at solicitation meetings in
her capacity as the Executive Director of the KSAB on City time and/or
using a city-assigned vehicle; and
- Whether a City employee may serve as a board member or officer on
the KSAB board.
Each issue will be discussed below.
Issue One:
Whether the Coordinator may be present at solicitation meetings in her capacity
as the Executive Director of the KSAB on City time and/or using a city-assigned
vehicle.
Part B, Section 7, Public Property and
Resources, of the Code[1] prohibits
City employees from using "City facilities, personnel, equipment or
supplies for private purposes." As stated above, the position
of Coordinator was created to support KSAB. Funding for the position lies
solely with the City. Although raising monies for KSAB is not one of her twelve
listed essential job functions, the Coordinator is responsible for, among other
things, "assist[ing] in the development and implementation of the
public-private partnerships, and neighborhood self-help/volunteer
programs." Her attendance at these meetings serves to provide
information on the programs KSAB and the City offer to increase the awareness
of solid waste issues and recycling programs to the citizens of
Because the dual role of Coordinator and
Executive Director serves to further the activities under the Clean Community
Program, a matter in which the public as a whole has an interest, there is no
violation of this section where the employee attends meetings on City time and/or
using a City vehicle.
Issue Two: Whether a City employee may serve as a board member
or officer on the KSAB Board.
A City employee who is also a member of a
board created pursuant to state law or city ordinance serves in two (2)
capacities with respect to the Ethics Code, as: (1) a City official; and (2) a
City employee. In each capacity, the individual is subject to the Code.
Improper Economic Benefit. As a general rule, a City official or employee 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 non profit entity for which
the City employee serves in a policy making position. 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 or employee is under a
duty to recuse himself and disclose, in writing, to the City Clerk the
economic benefit.
Pursuant to this section, a city employee
who serves on KSAB and is required to take official action as a city employee
on a matter involving KSAB must recuse himself from the action and disclose
such to the City Clerk.
Unfair Advancement of Private Interests. Part B, Section 2 of the Code[2] prohibits
all City officials and 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 himself [ ]) any form of special
consideration, treatment, exemption, or advantage beyond that which is lawfully
available to other persons." Under this section, a City employee may
not use his position to advance the interests of KSAB to the detriment of
another organization.
Confidential Information. All City officials and employees are prohibited from
using their position to obtain confidential information for purposes other than
the performance of their duties and/or from intentionally or knowingly
disclosing such information gained as a result of their position. Pursuant to
that end, the employee must refrain from disclosing information received in his
position to aid the Board in obtaining favorable treatment from the City,
including funding.
Representation of Private Interests. Part B, Section 5(a) of the Code (currently
codified in Section 2-47(a)) addresses representation of private interests
before the City by a member of a City board. Section 5(a) 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, unless the board [ ] is only advisory in nature; 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)[3], a
board member may not represent the City before KSAB or before the City Council
on an issue involving his duties on KSAB.
Part B, Section 5(b) of the Code[4]
prohibits City employees from representing private interests before any City
staff for compensation. Because members of KSAB do not receive compensation for
their service, Section 5(b)[5]
does not apply.
In both cases, the individual may represent
himself and/or KSAB before other boards and commissions and city staff provided
he neither assert nor imply that, by virtue of his membership on the KSAB, he
is able to influence City action.
SUMMARY
The dual role of Coordinator and Executive
Director serves to further the activities under the Clean Community Program, a
matter in which the public as a whole has an interest. Therefore, there is no
violation of this section where the employee attends meetings on City time
and/or using a City vehicle.
All City employees must abide by the
standards as set forth in the Ethics Code, including recusal and disclosure, in
order to serve on Keep San Antonio Beautiful. Provided the employee abides by
the City’s Ethics rules, many of which are discussed above, there is no
prohibition to serving on the board.
ANDREW MARTIN
City Attorney