City of San Antonio, Texas

Ethics Advisory Opinion No. 73

March 30, 2004

Issued By: City Attorney’s Office

 

I. Issues

 

May a Zoning Commissioner host a fundraiser for an incumbent Council Member? 

 

May a Zoning Commissioner represent or lobby for an architectural firm before a school board?

 

 

II.  Background Facts

 

The Zoning Commission consists of eleven members appointed by the City Council. The Commission recommends the boundaries of original zoning districts and appropriate regulations to be enforced within those boundaries.  It also holds public hearings and prepares final reports for the City Council on recommendations for changes for boundaries or regulations within a zoning district. 

 

In this inquiry, a zoning commissioner asks whether he may host a fundraiser for the campaign of an incumbent City Council member.  The zoning commissioner also asks whether he may represent or lobby for an architectural firm before a school board. This anticipated representation would not involve zoning issues and nor would it be brought before the Zoning Commission for consideration. 

 

 

III.  The Ethics Code – 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 member of the Zoning Commission is a city official. As a city official, the commissioner 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 zoning commissioner, 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

Section 8 (currently codified in Ethics Code Section 2-50) 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 zoning commissioner 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 zoning commissioner, therefore, is specifically excluded from the definition of employee for purposes of the City Personnel Rules and these limitations are inapplicable.

C. 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), 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 the commissioner from engaging in political activity, including contributing or participating in a city election campaign.

V.  Summary of Prohibitions and Restrictions on Political Activity

Under the Ethics Code, a city official, including a zoning commissioner, 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 zoning commissioner to advance the interests of any 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. It also prohibits them 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 Zoning Commission. 

Finally, under the City Charter, the zoning commissioner would resign his position if he or she were to file for election to a city or county office. Article XII, Section 140(b).

VI.  The Ethics Code – Representation of Private Interests before a School Board

The inquiry also addresses whether a zoning commissioner may represent or lobby on behalf of an architectural firm before a school board for compensation.  The matter in question does not involve zoning and will not come before the Zoning Commission for consideration. 

Part B, Section 5(a) and (b) of the Ethics Code (currently codified in Ethics Code Section 2-47 (a) and (b)) states the following:

a) Representation by a Member of the Board. A city official or employee who is a member of a board or other city body 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 taken any action on behalf of, that board or body, unless the board or body 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 official duties.

            b) Representation Before the City. 

1) General Rule.  A city official or employee shall not represent for compensation any person, group, or entity, other than himself or herself, or his or her spouse or minor children, before the city.   .  .  .

2) Exception for Board Members.  The rule stated in subsection (b)(1) does not apply to a person who is classified as a city official only because he or she is an appointed member of a board or other city body. 

As was described in the inquiry, the proposed representation or lobbying will take place before a school board.  The school board is a separate political subdivision from the city.  Tex. Const. art. VII. The commissioner anticipates no contact with the Zoning Commission or associated city staff members.  Under the Code, a city official who is classified as an official solely due to his or her appointment to a city board may represent private interests before the city for compensation, so long as the work is not done before that official’s board or the staff working with that board. In this instance, though, the commissioner’s work before this school district would not constitute representation before either the commission or the city. The Ethics Code, therefore, would not preclude this individual from the anticipated employment.

To avoid any appearance of impropriety, the commissioner should take care in his non-city employment to not use city property or resources, including the prestige of his office with the Zoning Commission, to advance any outside private interest. Part B, Section 7 (currently codified in Ethics Code Section 2-49).

VI. Conclusion

The zoning commissioner may contribute to or work for the campaign of a candidate for City Council or Mayor.  He may also participate in outside employment in representing an architectural firm before an independent school district. However, the he must continue to abide by the standards set forth in the City Ethics Code as discussed in this memorandum.