City of San Antonio, Texas

Ethics Advisory Opinion No. 71

March 13, 2003

Issued By: City Attorney’s Office

 

I. Issues

 

1) Can city employees serve on the Downtown Advisory Board?

 

2) If so, may they attend Downtown Advisory Board meetings during city business hours?

 

II.  Background Facts

 

Two city employees, one a community development analyst and the other an employee of the library, seek appointment to the Downtown Advisory Board. Both reside in the in the southern sector of downtown San Antonio. The Downtown Advisory Board is comprised of seventeen members who own property in the downtown area or who own, manage, or represent an organization located in the downtown area. The members are appointed at-large by the City Council.   Meetings take place during city office hours and the board takes action concerning projects of the city departments. 

 

 

III.  The Ethics Code -- May City Employees Serve on City Boards?

 

The Ethics Code imposes a standard of conduct upon all city employees and officials. Two city employees have inquired whether, under the code, they may serve as members of the Downtown Advisory Board while employed by the City of San Antonio.  The code defines a “city employee” as “any person listed on the City of San Antonio payroll as an employee, whether part-time or full-time.”  Ethics Code Part A, Section 2(o) (currently codified in Ethics Code Section 2-42(n).  The definition of “city official” includes members of all city boards and commissions and other bodies created by City Council pursuant to federal or state law or city ordinance. Ethics Code Part A, Section 2(u) (currently codified in Ethics Code Section 2-42(u).  The two individuals, therefore, would be subject to the requirements of the Ethics Code both in their capacity as city employees and as city board members.  The code does not prohibit city employees from serving on city boards. Several provisions, though, may restrict or limit these individuals in some situations within their dual roles.

 

A.  Improper Economic Benefit 

 

Part B, Section 1 of the Code (currently codified in Ethics Code Section 2-43) prohibits city officials and employees from realizing an improper economic benefit. Specifically, city officials and employees may not take any official action that they know is likely to have an effect on, among others, their economic interests or the economic interest of a nonprofit entity for which they serve in a policy-making position. Part B, Section 1(a)(8) (currently codified in Ethics Code Section 2-43(a)(8)). Should this occur, the official or employee is required to recuse him or herself immediately, refraining from any further participation in the matter, and disclose in writing to the City Clerk the economic benefit.  Part B, Section 1(b) (currently codified in Ethics Code Section 2-43(b)) 

 

B.  Unfair Advancement of Private Interests 

 

Part B, Section 2 (currently codified in Ethics Code Section 2-44) prohibits 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, the individuals could not use their positions as city employees to advance the interests of the Downtown Advisory Board or give the impression of such.  If a matter concerning the board were to come before these employees in their official position with the city, they would be required to recuse and disclose the matter. Similarly, should a matter involving the departments for which they work as employees come before the board, they would be required to recuse themselves from that issue as well. Part B, Section 2(c) (currently codified in Ethics Code Section 2-44(c));  See also Ethics Advisory Opinion No. 63 (city employee may not use position to advance the interests of KSAB to the detriment of another organization).

 

C.  Confidential Information 

 

Under Part B, Section 4 (currently codified in Ethics Code Section 2-46), all city officials and employees are prohibited from using their position to obtain confidential information for purposes other than the performance of their duties.  They are also precluded from intentionally or knowingly disclosing such information gained as a result of their position. Accordingly, the employees must refrain from disclosing information received in their position with the city to aid the Downtown Advisory Board in obtaining favorable treatment from the city, including funding.  See Ethics Advisory Opinion No. 63.

 

D.  Representation of Private Interests 

 

Part B, Section 5(b) of the Code (currently codified in Ethics Code Section 2-47(b)) prohibits city employees from representing private interests before their city body for which they work or before the city for compensation. Board members are restricted from representing private interests before the board they serve, regardless of whether they are compensated. Part B, Section 5(a) (currently codified in Ethics Code Section2-47(a)).

 

The Ethics Code would not prohibit the employees from becoming members of the Downtown Advisory Board, though some restrictions as discussed above might apply. The inquiry, though, poses a second issue:

 

IV.  The Ethics Code -- May the Employees Attend Board Meetings During City Business Hours?

Part B, Section 7 (currently codified in Ethics Code Section 2-49) prohibits city employees from using "city facilities, personnel, equipment or supplies for private purposes." In this inquiry, the two employees’ participation at the Downtown Advisory Board meetings would constitute city work performed for the benefit of the community. Because they are serving a public interest in both capacities as employee and board member, there is no violation of this section were the employees to attend board meetings during city business hours. See Ethics Advisory Opinion No. 63. 

However, the individuals should remain cognizant of their obligation to completely fulfill their responsibilities in both their employment with the city and to the board for which they seek membership. While participation on the Downtown Advisory Board constitutes work for the public interest, it does not excuse or exempt the employees from their regular employment. Whether the employees may make arrangements to participate on the board and completely fulfill their responsibilities as employees in their regular employment is a personnel matter to be resolved by their department directors.[1]

 

 

V.   Summary

 

The Ethics Code does not preclude city employees from becoming members of the city’s boards and commissions. However, as employees and as board members, such individuals must abide by the standards as set forth in the Ethics Code, including recusal and disclosure, when conflicts arise. Provided the employees abide by these standards, they may seek appointment and serve on the Downtown Advisory Board.

 

 

[1} In  Advisory Opinion No. 63, the issue was raised of whether the City’s Clean Community Coordinator  who was also the Executive Director of Keep San Antonio Beautiful Board (KSAB) could attend the KSAB meetings on city time.  As the Clean Community Coordinator, the employee was responsible for implementing the Clean Community Program.  The opinion concluded that the dual role of Coordinator and Executive Director both served to further the activities under the Clean Community Program.  Because the two roles were interrelated, it was appropriate to allow the employee to attend the board meetings on city time.

 

 

 

 

 


[1]   In Advisory Opinion No. 63, the issue was raised of whether the city’s Clean Community Coordinator who was also the Executive Director of Keep San Antonio Beautiful Board (KSAB) could attend the KSAB meetings on city time.   As the Clean Community Coordinator, the employee was responsible for implementing the Clean Community Program.   The opinion concluded that the dual role of Coordinator and Executive Director both served to further the activities under the Clean Community Program.  Because the two roles were interrelated, it was appropriate to allow the employee to attend the board meetings on city time.