City of San Antonio, Texas

 

Ethics Advisory Opinion No. 111

November 16, 2006

Issued By: City Attorney’s Office

 

I.  Issue: 

 

May business owned by family members of a Zoning Commissioner seek and accept contracts with the city?

 

II. Inquiry

 

A member of the Zoning Commission has inquired whether the Ethics Code would prohibit a business owned by his parents from seeking and entering into contracts with the city.   The commissioner himself is employed by the business but does not hold any ownership interest.

 

III.  The Ethics Code

 

As a city official, a member of the Zoning Commission is subject the standards of conduct set out in the city’s Ethics Code.

 

A.  Conflicts of Interest under the City’s Ethics Code

 

The city’s Ethics Code has two “conflicts-of-interest” provisions.   The first states that a city official, including a board member, cannot take any official action that is likely to affect the economic interests of the

 

1)      official,

2)      the official’s family within the 2nd degree, and members of the official’s household;

3)      businesses in which the official or his or her family members hold an ownership interest;

4)      employers of the official or the official’s family members;

5)      business entities or non-profit organizations for which the official serves in an executive or decision-making capacity;

6)      individuals or businesses with whom the official is engaged in business or employment negotiations; and

7)      any outside client of the official. 

 

Ethics Code, Section 2-43.  Should a matter that might affect the official’s financial interests or these other interests come before the official’s board, the Ethics Code requires that the official recuse himself or herself.

 

Because of his employment with family’s business of the company, this commissioner would have a conflict of interest for any matter that could affect the company’s financial interest.  Accordingly, if a matter pertaining to that business came before the Zoning Commission, this commissioner would be required to recuse himself from that particular matter.     It would not preclude him from participation on the commission for matters that did not pertain to the financial interests his family or their business.

 

The second conflict-of-interest provision states that a city official cannot use his or her position with the city to unfairly advance or impede private interests or to secure for any person any form of special consideration, treatment, exemption or advantage beyond that which is lawfully available to other persons.   Ethics Code, Section 2-44.    This provision can be more subjective than Section 2-43.   It requires that decisions or actions of city officials be made on their merits and not on personal considerations.    Where action by a board may result in some effect on the official’s non-city interests, the official must examine his or her basis for supporting or not supporting that action.   

 

B.  Representation of Private Interests before the City

 

As a board member, the commissioner should also be cognizant of the Ethics Code provisions regarding the representation of private interests before the city.     A city board or commission member cannot represent any person, group or entity before the board or commission on which they serve or before another city body that has appellate jurisdiction over the member’s board, if the issue relates to the official’s duties.   Ethics Code, Section 2-47(a).   Further, a board member cannot assert the prestige of their city office for the purpose of advancing a private interest or state or imply that he or she can influence city action on any basis of than the merits.  Section 2-47(c).

 

In addition, a board or commission member cannot represent any person, group or entity in any litigation to which the city is a party, if the interests of that person, group or entity are adverse to the city and the matter is substantially related to the official’s duties to the city.   Ethics Code, Section 2-47(d)(2).

 

 

C.  Prohibited Contracts or Business Interests between City Officers and the City

 

The “prohibited interests in contracts” provision is found in Section 141 of the City Charter and is restated in Section 2-52 of the City Code (Ethics Code).  Section 2-52(a) states:

       Charter Provision. The Charter of the City of San Antonio, in Section 141, states “No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies, or service, except on behalf of the City as an officer or employee. Any willful violation of this Section shall constitute malfeasance in office, and any officer or employee guilty thereof shall thereby forfeit his office or position. Any violation of this Section, with the knowledge, expressed or implied, of the person or corporation contracting with the Council shall render the contract involved voidable by the City Manager or the Council.”  

Section 2-52(e)(2) defines “city officers” to include

(A)  the Mayor or any Council member;

(B)  a Municipal Court Judge or Magistrate;

(C)  a member of any board or commission which is more than advisory in nature. The term does not include members of the board of another governmental entity even if some or all of these members are appointed by the city. 

The Zoning Commission is an advisory body.   Because it is not more than advisory in nature, members of the Zoning Commission are not subject to this provision.   Accordingly, the business owned by the commissioner’s family may contract with the city without creating a prohibited contractual interest for the commissioner himself under this provision of the code.

 

 

IV.  Conclusion

 

Because the Zoning Commission is advisory in nature, the “prohibited contracts” provision of the Ethics Code would not prohibit the Zoning Commissioner’s family from seeking a contract with the city.   The “conflicts-of-interest” rules, however, would apply and would require the commissioner to recuse himself from any matter before the commission that might affect the financial interests of his family or their business.