City of San Antonio, Texas

 

Ethics Advisory Opinion No. 70

 

January 31, 2003

 

Issued By:  City Attorney’s Office

 

I.  Issue

 

May a uniformed employee accept a cash award from a private business?

 

 

II.  Background Information

 

A local media agency has expressed interest in recognizing a uniformed city employee on a weekly basis with a cash award of $100.  The selection would be on a random basis.  The agency also contemplates a similar recognition for acts that merit immediate recognition, such as saving a life.  Once selected, the agency would feature the employee’s biography and picture through the media for public recognition.

 

 

III.  State Law

 

Section 36.07 of the Texas Penal Code (acceptance of honorariums) and Section 36.08 (gift to public servant by person subject to his jurisdiction) prohibit public servants from accepting certain benefits. Section 36.07 prohibits a city employee from accepting a fee or benefit “in consideration for” or “in appreciation of” services rendered if the services would not have been requested but for the employee’s city employment.  See Texas Ethics Commission Advisory Opinion No. 97 (1992) (acceptance of an engraved clock in appreciation for speech is a prohibited benefit under Section 36.07 if the individual would not have been asked to speak but for his official position).   

 

However, where no services will be provided in exchange for a cash award, Section 36.07 does not apply.   See Texas Ethics Commission Advisory Opinion No. 226 (1994) (award from foundation to city police officers was not a payment for requested services). The Texas Ethics Commission noted that the prohibition under Section 36.07

 

applies to a payment made “in consideration for services” that the public servant would not have been “requested” to provide except for the public servant’s official position.

 

Ethics Advisory Opinion No. 226 (1994). 

 

The agency in this matter is not offering payment for services that it has requested, nor has this agency received any direct benefit from the uniformed employee’s work. Rather, the agency is offering an award to recognize services performed. Section 36.07, therefore, would not preclude the uniformed employee from accepting the award.

 

Section 36.08 of the Texas Penal Code prohibits a city employee who performs regulatory functions or who conducts inspections or investigations from “solicit[ing], accept[ing], or agree[ing] to accept any benefit from a person the [employee] knows to be subject to regulations, inspection, or investigation by the [employee] or his agency.”  Whether this section applies depends on “the duties of the public servant and on the identity of the person who is [bestowing the benefit and the nature of the benefit].  If the public servant neither performs a regulatory function nor conducts inspections or investigations, this section is not subject to the exceptions set forth in Section 36.10[1] of the Texas Penal Code. Therefore, although one public servant may be prohibited from accepting a benefit under Section 36.08, another may accept the benefit, depending on their respective duties.[2] 

For example, a uniformed employee serving in the fire prevention division would be prohibited from accepting an award from an entity, such as a media agency, that may be subject to inspection or investigation by that division.  That employee could only accept a gift if one of the exceptions listed in Penal Code Section 36.10 applied. See note 1.  If an employee were prohibited from accepting a gift or award under Section 36.08 and none of the exceptions in Section 36.10 applied, he could still be recognized for a statement of appreciation since would not be receiving anything of tangible monetary value. 

 

 

IV.  The City Ethics Code

 

The city’s Ethics Code defines a “gift” as a “voluntary transfer of property (including the payment of money) or the conferral of a benefit having pecuniary value, [ ] unless consideration of equal or greater value is received by the donor.”  Part B, Section 3 of the code (currently codified in Ethics Code Section 2-45) sets out two prohibitions.

 

Section 3(a)(1) (currently codified in Ethics Code Section 2-45(a)(1) prohibits an employee from soliciting or accepting any gift that reasonably tends to influence or reward official conduct or that the employee knows is being given to influence or reward the official conduct.  This is similar to Section 36.07 of the Texas Penal Code Section 36.07 which prohibits a public servant from accepting a gift “in appreciation of” services rendered if the services would not have been requested but for the employee’s city employment.  

 

Section 3(a)(2) of the Ethics Code (currently codified in Ethics Code Section 2-45(a)(1)) prohibits an employee from soliciting or accepting anything of value from a person or business entity doing business or seeking to do business with the city, or from a registered lobbyist. There is no indication in this inquiry that the media agency is doing or seeking to do business with the city.   Even if it were, Section 3(b)(3) (currently codified in Ethics Code Section 2-45(b)(3)) provides that a public award or reward for meritorious service or professional achievement that is reasonable in light of the occasion is excluded from the gift restrictions. 

 

The media agency anticipates giving awards to uniformed employees on a random basis, unless an individual is singled out for a particularly meritorious act. For the individuals randomly selected, receipt of the cash awards would neither influence nor reward a specific act of the employee. For the individual selected for extraordinary service, the award is excluded from the definition of gift under Section 3(b)(3) (currently codified in Ethics Code Section 2-45(b)(3)). 

 

The uniformed personnel of the City of San Antonio work to prevent and minimize the loss of life and property of the citizens.  Their service is deserving of praise and the anticipated award program would be reasonable in light of these circumstances. 

 

 

V.  Summary

 

In summary, all city employees are governed by the standards of conduct set forth in the Ethics Code of the City of San Antonio, and many are governed by relevant state statutes.  The City’s Ethics Code would allow uniformed personnel to receive recognition of meritorious service.  Under state law, however, whether a uniformed employee may accept a cash award for recognition of his or her service to the city depends upon that individual’s duties.  Where uniformed personnel have regulatory functions or investigative powers, they may not accept a benefit from a person, including a corporation, subject to such functions and powers, unless permissible under the exceptions listed in Texas Penal Code Section 36.10.   

 

 

 

 



[1]   Section 36.10 of the Texas Penal Code provides: 

 

     (a) Sections 36.08 (Gift to Public Servant) and 36.09 (Offering Gift to Public Servant) do not apply to:

 

(1) a fee prescribed by law to be received by a public servant or any other benefit to which the public servant is lawfully entitled or for which he gives legitimate consideration in a capacity other than as a public servant;

 

(2) a gift or other benefit conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the recipient; or

 

(3) a benefit  to [state officers or candidates for state office required to file financial disclosure statements under Government Code 572.021 or Title 15 of the Election Code] that is derived from a function in honor or appreciation of the recipient if (A) the benefit and source of any benefit in excess of $50 is reported in the statement; and (B) the benefit is used solely to defray the expenses that accrue in the performance of duties or activities in connection with the office which are nonreimburseable by the state or political subdivision;

 

(4) a political contribution as defined by Title 15, Election Code

 

(5) a gift, award, or memento to a member of the legislative or executive branch that is required to be reported under Chapter 305, Government Code;

 

(6) an item with a value of less than $50, excluding cash or a negotiable instrument[ ];

 

(7) an item issued by a governmental entity that allows the use of property or facilities owned, leased, or operated by the governmental entity. 

 

   (b)  Section 36.08 (Gift to Public Servant) does not apply to food, lodging, transportation, or entertainment accepted as a guest and, if the donee is required by law to report these items, reported by the donee in accordance with the law.

 

[2]  An individual who is subject to Chapter 36 of the Texas Penal Code, may request an opinion from the Texas Ethics Commission that advises how the law applies to that person in a specific, real or hypothetical factual situation.   Ethics Commission Rule §8.5.