Ethics
Advisory Opinion No. 66
September
9, 2002
Issued
By: City Attorney’s Office
Issue:
May a director of the Small Business Economic Development
Advocacy
Advisory Committee (SBEDA) obtain a loan from
San
Antonio Local Development Company (SALDC)?
I. Factual Background
The
San Antonio Local Development Company, Inc. (SALDC) received an application for
financing from a member of the Small Business Economic Development Advocacy
Advisory Committee (SBEDA). SALDC asks whether the City of
SALDC
was created in 1978 as a non-profit corporation to carry out the Small Business
Association’s (SBA) loan programs. Projects financed through SALDC must create
or preserve jobs and promote the economic development of the City. An
individual or small company, defined by the SBA as having a net worth under $6
million or net profits after taxes under $2 million, may apply to SALDC for
various loan programs depending on the needs and objectives of the business.
SBEDA
is a committee appointed by City Council to review programs concerning minority
and women’s participation in business in
II. The Ethics Code
Part
A, Section 2[1]
of the City of
A.
Improper Economic Benefit
A City official may not take any official
action that is likely to have an effect on his or her economic interest or the
economic interest of someone in the official’s immediate family, household or
business entity with whom the individual is closely connected. Ethics Code Part
B, Section 1[2].
Part
A, Section 2(o)[3]
defines "official action" as
1. any affirmative
act (including the making of a recommendation) within the scope of, or in violation
of, an official or employee’s duties, and
2. any failure to
act, if the official or employee is under a duty to act and knows that inaction
is likely to affect substantially an economic interest of the official or
employee or other closely related person or entity.
Nothing
indicates that the issue of the member’s loan from SALDC has come before or
will come before SBEDA. However, given the board’s purpose of advising City
Council on minority and women’s participation in business in
B.
Unfair Advancement of Private Interests
Part B, Section 2[5] prohibits
the use of City official’s position to unfairly advance or impede the private
interests of another or to grant or secure for any person, including the
official herself, any form of special consideration or advantage beyond that
which is lawfully available to other persons.
The
official, just as any other member of the general public, may make any
application and receive financing if qualified under SALDC’s criteria. She may
not, though, use her official position to obtain any special consideration from
SALDC. She should also take care to ensure that there is no appearance or
suggestion of unusual or special treatment of her application.
Again,
should the issue of her application come before SBEDA, she must disclose the
potential conflict in writing to the City Clerk and recuse herself from any
discussion related to the matter.
C. Confidential Information
As a City official serving on a board, the
member may have access to confidential information not available to the general
public. Under Part B, Section 4[6],
an official cannot obtain or disclose confidential information for any purpose
other than the performance of her official duties. Although the facts available
do not indicate that the use of confidential information is at issue, the
member should be cognizant of the prohibition as part of the required standard
of conduct.
D.
Representation of Private Interests
Part B, Section 5[7] precludes
a board member from representing any person or entity before the board on which
she sits or before City Council, if the issue concerns her official duties. It
also prohibits any representation before city staff providing support to the
board, unless the board is an advisory board. Since SBEDA is advisory in
nature, the latter provision would not apply.
This
section expressly states that the official cannot use her position to advance
any private interest, nor can she state or imply that she is able to
"influence city action on any basis other than the merits." As with
the prohibition against the unfair advancement of private interests, the member
should take care to avoid even the appearance of special treatment.
Again, although the facts available do not
indicate that the restrictions of this section would apply, the member should
bear them in mind as part of the required standard of conduct.
E.
Prohibited Financial Interest in Contract
Part B, Section 10[8]
bars a City officer or employee from having a financial interest in a contract
with the City or its agencies. For purposes of Section 10[9],
"employee" is defined as any City employee who is required to file a
financial disclosure statement pursuant to Part G, Section 1(currently codified
in Section 2-73). An "officer" is the mayor, a member of the Council,
a municipal judge or magistrate or a member of any board or commission that is
more than advisory in nature.
Because
SBEDA acts only as an advisory body, the members of that board are
III. Summary
The
SBEDA board member may apply to SALDC for a loan in accordance with its normal
and customary procedures. Because the board member is a City official, she
should remain mindful of the Code’s restrictions and standards of conduct,
including, but not limited to, using her position to facilitate the application
for the loan.
Andrew Martin
City Attorney