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
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
(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;
·
· Assistant City Managers;
· Assistants to the City Manager;
· 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]