City of San Antonio, Texas

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 San Antonio. The issues are as follows:

  1. 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
  2. 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 San Antonio. The partnerships further the objectives of the alliance of the City and KSAB regarding these issues.

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:

    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, unless the board [ ] is only advisory in nature; 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)[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



[1]   Currently codified in Section  2-49

[2]   Currently codified in Section 2-44

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

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

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