City of San Antonio, Texas

Ethics Advisory Opinion No. 80

October 15, 2003

Issued By: City Attorney’s Office

 

I. Issue

 

May city staff accept an invitation from a city contractor to attend a private party that would include dinner?

 

II.  The City Ethics Code’s Gift Provisions

 

The Ethics Code of the City of San Antonio sets forth standards of conduct applicable to all city officials and employees. The policy underlying the code and its restrictions on employee conduct is to promote the public confidence in city government. Ethics Code Part A, Section 1[1]

 

In accordance with this policy, the code includes provisions that speak specifically to the solicitation or acceptance of gifts by city personnel.  “Gifts” are defined as

 

the voluntary transfer of property (including the transfer of money) or the conferral of a benefit having pecuniary value (such as the rendition of services or forbearance of collection on a debt), unless consideration of equal or greater value is received by the donor.

 

Ethics Code Part A, Section 2(q). [2]

 

Regarding the receipt of gifts, Part B, Section 3[3] sets out two general rules.  First:

 

(a)      General Rule.

 

(1)          A city official or employee shall not solicit, accept, or agree to accept any gift or benefit for himself or herself or his or her business:

(A)    that reasonably tends to influence or reward official conduct; or

(B)     that the official or employee knows or should know is being offered with the intent to influence or reward official conduct.

 

Regardless of the source of a gift, a city official or employee cannot accept any gift, if the intent of the individual giving the gift is to influence or reward official conduct.   “Official conduct” would include any act or failure to act within the scope of or in violation of an official’s or employee’s duties to the city. Part A, Section 1(v)[4].

 

City officials and employees should also be cognizant of the state Penal Code, Section 36.02(a)(1).  Section 36.02(a)(1) provides that a person commits the offense of bribery if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another any benefit as consideration for the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant.    See also Ethics Advisory Opinion No. 70.

 

The Ethics Code’s second general gift rule addresses the receipt of gifts from three specific sources:

 

(a)   General Rule.

 

(2)          A city official or employee shall not solicit, accept, or agree to accept any gift or benefit, save and except for items received that are of nominal value and meals in an individual expense of $50 or less at any occurrence, or meals with no more than a cumulative value of $500 in a single calendar year, from a single source, from:

 

(A)    any individual or business entity doing or seeking to do business with the City; or

(B)     any registered lobbyist or public relations firm; or

(C) any person seeking or advocating on zoning or platting matters before a city body.

 

In this inquiry, the city staff member has inquired whether he could accept the invitation from a city contractor to attend a private party that will include dinner.  Under the general rule set out in Part B, Section 3(a)(2)[5], the employee may accept a meal from the contractor up to $50 in value per event, with a limit of meals of a cumulative value of $500 in a calendar year from that source. 

 

Part B, Section 3(b)[6] provides other exceptions:

 

(b)      Special Applications.  Subsections (a)(1) and (a)(2) do not include:

(1)          a gift to a city official or employee relating to a special occasion, such as a wedding, anniversary, graduation, birth, illness, death, or holiday, provided that the value of the gift is fairly commensurate with the occasion and the relationship between the donor and recipient;

(2)          reimbursement of reasonable expenses for travel authorized in accordance with city policies;

(3)          a public award or reward for meritorious service or professional achievement, provided that the award or reward is reasonable in light of the occasion;

(4)          a loan from a lending institution made in its regular course of business on the same terms generally available to the public;

(5)          a scholarship or fellowship awarded on the same terms and based on the same criteria that are applied to other applicants;

(6)          admission to an event in which the city official or employee is participating in connection with official duties;

(7)          any solicitation for civic or charitable causes;

(8)          admission to an event in which the city official or employee is participating in connection with his or her spouse’s position;

(9)          ceremonial and protocol gifts presented to city officials from a foreign  government or international or multinational organization and accepted for the City of San Antonio;

(10)      admission to a widely attended event, such as a convention, conference, symposium, forum, panel discussion, dinner, viewing, reception or similar event, offered by the sponsor of the event, and unsolicited by the City official or employee, if

(A)  the official or employee participates in the event as a speaker or panel participant by presenting information related to matters before the City; or

(B)  the official or employee performs a ceremonial function appropriate to that individual’s position with the City; or

(C)  attendance at the event is appropriate to the performance of the official duties or representative function of the official or employee;

(11)      admission to a charity event provided by the sponsor of the event, where the offer is unsolicited by the City official or employee;

(12)      admission to training or education program, including meals and refreshments furnished to all attendees, if such training is related to the official or employee’s official duties and the training is in the interest of the City;

(13)      lodging, transportation, or entertainment that the official or employee accepts as a guest and, if the donee is required by law to report those items, reported by the donee in accordance with that law, up to $500 from a single source in a calendar year.

 

In this matter, it is anticipated that the employee will attend an event hosted by a city contractor at which dinner and possibly other entertainment may be provided.  The employee has indicated that this will be a private party, to be attended only by those invited. From this description, it does not appear that this event qualify as a “widely attended event” that would be permissible under Subsection (b)(10) (currently codified in subsection (b)(9).  As a private party, the employee may accept the invitation under the general exception set out in Part B, Section 3(a)(2) (currently codified in Ethics Code Section 2-45(a)(2).  He should be mindful, though, of the limit of $50 for the meal.  If there are other entertainments, under (b)(13)[7], he may accept such gifts up to $500 in a calendar year, so long as all parties required to report the gift comply with the reporting requirements.

 

 

III.  Reporting Requirements

 

Should officials or employees choose to accept a gift from an individual or entity doing business with the city under Part B, Section 3[8], they must comply with any applicable reporting requirements.   The Ethics Code imposes reporting requirements on two categories of city personnel. First, Part G, Section 1[9]  requires all city officials and designated city employees to file a full financial disclosure form, which includes the disclosure of any gifts received in the previous calendar year with a value in excess of $100.   Part G, Section 2(n)[10].   The officials are listed in Part A, Section 2(u)[11]:

 

·        The Mayor;

·        Members of the City Council;

·        Municipal Court Judges and Magistrates;

·        The City Manager;

·        Deputy City Manager;

·        Assistant City Managers;

·        Assistants to the City Manager;

·        City Clerk;

·        Assistant City Clerk;

·        All department heads and assistant department heads;

·        Market Square Superintendent;

·        Assistant to City Council;

·        Assistant to Mayor;

·        Secretary to City Manager;

·        Executive Secretaries;

·        Community Action Manager;

·        Public Utilities Supervisor; and

·        Members of all boards, commissions (except the Youth Commission whose members are minors), 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.

 

Part G, Section 1(a)[12] also includes San Antonio Police Department and Fire Department personnel to this list of officials as well:

 

Police Department Captains, Assistant Chiefs, and Deputy Chiefs, all appointed Deputy Fire Chiefs and appointed Assistant Fire Chiefs, and any Assistant Fire Chief who either works in the Fire Administration Building or any other division and is involved in having input to any contract, vehicle specification, or who is otherwise involved with the purchasing of any product, service, or land for the Fire Department, any fire Inspector, Plan Reviewer or Uniformed Administrator of the Fire Prevention Division, any uniformed employee involved in maintaining Departmental Personnel Records located at the Fire Administration Building, any uniformed Personnel utilized in evaluating or purchasing equipment, vehicles or any other purchases who also have contact with contractor(s) who provide such equipment or vehicles, and any Uniformed Personnel utilized in providing input to any contract or composing specifications of equipment and vehicles, who also have contact with contractor(s) who provide such services, equipment or vehicles[.]

 

In addition to the financial disclosure reports filed by city officials, Part G, Section 6[13]  requires a category of “specified employees” to file an annual gift report, disclosing the receipt of gifts from the previous calendar year with a cumulative value of more than $100. These employees are specified on a list compiled annually by the Human Resources Department. City council contract employees are also subject to this reporting provision. 

 

Excluded from both the financial reports filed by city officials and the gift reports filed by the specified employees are gifts received from family members within the second degree and gifts between city employees and officials.   Part G, Section 2(n)[14] and Part G, Section 6[15].

 

 

IV.  Summary

 

Under the general rule set out in Part B, Section 3(a)(2)[16], the employee may accept a meal from the contractor up to $50 in value per event, with a limit of meals of a cumulative value of $500 in a calendar year from that source.  Under Part B, Section 3(b)(13)[17], the employee may also accept admission to entertainment offered by the contractor valued up to $500 in a calendar year, so long as the employee attends as the contractor’s guest and all parties comply with applicable reporting requirements.  If a city official or employee accepts gifts pursuant to these provisions, they must also comply with any applicable reporting requirements under Part G of the code.[18]

 

 



[1] Currently codified in Ethics Code Section 2-41

 

[2]  Currently codified in Ethics Code Section 2-42(q)

 

[3]  Currently codified in Ethics Code Section 2-45

 

[4]  Currently codified in Ethics Code Section 2-42(v)

 

[5]  Currently codified in Ethics Code Section 2-45(a)(2)

 

[6]  Currently codified in Ethics Code Section 2-45(b): NOTE: this section has sinde been revised, please refer to updated code for current execptions.

 

[7]  Entertainment exception formerly found under Part B, Section 3(b)(13) repealed 6-25-09

 

[8]  currently codified in Ethics Code Section 2-45

 

[9]  Currently codified in Ethics Code Section 2-73

[10]  Currently codified in Ethics Code Section 2-74(14)

 

[11] Currently codified in Ethics Code Section 2-42(u)

 

[12] Currently codified in Ethics Code Section 2-73(a)(1)

 

[13]  Currently codified in Ethics Code Section 2-78

 

[14]  Currently codified in Ethics Code Section 2-74(14)

 

[15]  Currently codified in Ethics Code Section 2-78

 

[16]  Currently codified in Ethics Code Section 2-45(a)(2)

 

[17]  Entertainment exception formerly found under Part B, Section 3(b)(13) repealed 6-25-09

 

[18]  Currently codified in Ethics Code Section 2-73