City of San Antonio, Texas

Ethics Advisory Opinion No. 72

March 17, 2003

Issued By: City Attorney’s Office

 

I. Issue

 

May a trustee for the San Antonio Water System (SAWS) 

 

1) make a campaign contribution to a City Council candidate;

 

2) actively campaign for a City Council candidate.

 

 

II.  Background Facts

Under Section 49 of the City Charter, the City Council may, by ordinance, create boards, commissions or committees to assist in an advisory capacity. Under Section 154, the council can appoint members to the regulatory and zoning boards and commissions. On April 30, 1992, the council adopted Ordinance No. 75686, which consolidated the existing water utilities and created the San Antonio Water System (SAWS). 

The San Antonio Water System is managed by a board of trustees consisting of seven members appointed by the City Council, including the mayor who serves as an ex-officio member. Each trustee represents a certain sector of the city; South Sector, Southeast Sector, North Sector, Northeast Sector and Northwest Sector.  The Board is vested with the complete management, control and operation of the Water System, including expenditures and application of revenue. The Board also determines rates, fees and charges for the utility’s services. Under Section 32(T) of enabling ordinance, the board is required to establish personnel policies parallel to those of the city.

III.  The Ethics Code and Political Activity

 

The City Ethics Code sets out standards of conduct for city officials and employees. Under Part A, Section 2 (currently codified in Ethics Code Section 2-42), officials include

 

members of all boards, commissions, committees, and other bodies created by the City Council pursuant to federal or state law or City ordinance, including entities that may be advisory only in nature; and board members of any entity who are appointed by the City Council to such board membership.

 

Under this definition, a trustee of the San Antonio Water System Board is a city official.  As a city official, the trustee is subject to the standards of conduct set out in the Code of Ethics. 

Part B, Section 8 of the Ethics Code (currently codified in Ethics Code Section 2-50) imposes the following restrictions on a city official’s political activity:

a. Influencing Subordinates. A city official or employee shall not, directly or indirectly, induce or attempt to induce any city subordinate of the official or employee:

1. to participate in an election campaign, contribute to a candidate or political committee, or engage in any other political activity relating to a particular party, candidate or issue, or

2. to refrain from engaging in any lawful political activity;

A general statement merely encouraging another person to vote does not violate this rule.

b. Paid Campaigning. A city official or employee shall not accept any thing of value, directly or indirectly, for political activity relating to an item pending on the ballot, if he or she participated in, or provided advice relating to, the exercise of discretionary authority by a city body that contributed to the development of the ballot item.

c. Official vehicles. A city official or employee shall not display or fail to remove campaign materials on any city vehicle under his or her control.

Limitations on the use of public property and resources for political purposes are imposed by Section 7 of Part B (Public Property and Resources) (currently codified in Ethics Code Section 2-49).

Under Part B, Section 7 (currently codified in Ethics Code Section 2-49), the trustee, as a city official, cannot use, request or permit the use of city facilities, personnel, equipment or supplies for private purposes, including political activities.

 

 

IV.  Other Limitations on Political Activity

A.  State Law

Part B, Section 8 (currently codified in Ethics Code Section 2-50) of the Ethics Code refers also to the limitations on political activity set out in state law, the City Charter and the City Personnel Rules. State law prohibitions apply to state employees. Because the member is not a state employee, these provisions would not apply. See V.T.C.A. Government Code §§556.001 – 556.005.

B. The City Personnel Rules

The City Personnel Rules impose far stricter limits on political activity than the City Ethics Code. Rule III precludes any employee from making a campaign contribution or from taking part in the management affairs or political campaign of any political party. Rule I defines "employee" as “one filling a position under “Classified or Unclassified Service," with the exception of elected officials and boards or commissions or individuals appointed by City Council.” The SAWS trustee, therefore, is specifically excluded from the definition of employee for purposes of the City Personnel Rules and these limitations are inapplicable.

C. The SAWS Personnel Rules

As noted above, under its enabling ordinance, the SAWS board is required to develop personnel rules parallel to those of the city.  Ordinance No. 75686, Section 32(T).    The SAWS Personnel Rules state:

            SAWS prohibits its employees from the following activities:

Displaying signs, bumper stickers, political pictures, buttons, badges or any political material on SAWS vehicles or property;

Distributing campaign literature or making contributions to a campaign on SAWS property or during working hours or in a SAWS uniform;

Additionally, SAWS prohibits employees from the following activities when involving City of San Antonio elections:

Serving as a campaign manager or in a leadership or administrative role in election or campaign activity;

Soliciting votes or contributions, assisting voters at polls, or helping take voters to polls for a particular candidate or issue;

Becoming a candidate for a City office.

The SAWS Personnel Rules regarding political activities apply to the utility’s employees. Neither the SAWS rules nor the bylaws of the SAWS Board of Trustees provide that the trustees are employees, or require trustees to follow the standards of conducts required of employees. Accordingly, the limitations on political activity set out in the SAWS Personnel Rules are not applicable to the trustees. 

D. The City Charter

Article VI of the City Charter established the Municipal Civil Service and provisions related to the management of that service.  Section 78(c)-(g) within Article VI sets out specific limitations on political activity:

(c) No City employee shall continue in such position after becoming a candidate for nomination or election to any City or Bexar County elected office;

(d) No City employee may circulate petitions for city council candidates or city elections, receive or solicit any contribution for any city council candidate or city election;

(e) No City employee shall make any contribution to the campaign funds of any candidate for City office or take any part in the management or affairs or political campaign of any candidate for City office, further than in the exercise of his rights as a citizen to express his opinion and to cast his vote:

(f) No employee of the City may wear city council campaign buttons nor distribute literature at work or in a city uniform or in the offices or building of the City of San Antonio.

(g) City employee organizations shall not be allowed to make any contribution to the campaign funds of any candidate for City office or take part in the management or affairs of a political campaign for City office, further than to express opinions, except as authorized by state law. 

As with the City Personnel Rules, the trustee is not an employee and therefore is not subject to the restrictions listed in Section 78.    

Article XII (General Provisions), Section 140(b) of the charter, though, does impose one limitation on board members.  It states:

No appointee of any City board or commission shall continue in such position after becoming a candidate for nomination or election to any City or Bexar County elected office.

With only that exception, the City Charter does not restrict a SAWS trustee from engaging in political activity, including contributing or participating in a city election campaign.

V.  Summary of Prohibitions and Restrictions

Under the Ethics Code, a city official, including a SAWS trustee must abide by the restrictions on political activity as set out in Part B, Section 8 (currently codified in Ethics Code Section 2-50). In short, an official cannot induce or attempt to induce any city subordinate of that official to participate or contribute to a campaign, or to refrain from any lawful political activity. The official cannot accept anything of value for political activity relating to an item pending on the ballot if that person contributed to the development of the ballot item.   Further, the official cannot display campaign materials on any city vehicle. Under Part B, Section 7 (currently codified in Ethics Code Section 2-49) the official cannot use or permit the use of city facilities, personnel or equipment for private purposes including political activity.

Some of the general provisions of the Ethics Code may also apply in this situation:

Part B, Section 2 of the Code (currently codified in Ethics Code Section 2-44) prohibits all city officials 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 . . . any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons." Under this section, the official cannot use his position as a SAWS trustee to advance the interests of the campaign for which he might work.

Part B, Section 4 (currently codified in Ethics Code Section 2-46) also imposes an on-going obligation upon city officials to refrain from using their position to obtain confidential information for any purpose other than the performance of their duties and from intentionally or knowingly disclosing such information gained as a result of their position. Therefore, the official cannot obtain or disclose confidential information for any purpose, other than those related to carrying out his duties as a member of the SAWS Board. 

In addition, under the City Charter, a trustee would resign his position upon filing for election to a city or county office.  Article XII, Section 140(b)

VI. Conclusion

The SAWS trustee may contribute to or work for the campaign of a candidate for City Council or Mayor. However, the trustee must abide by the standards set forth in the City Ethics Code as discussed in this memorandum.