City of San Antonio, Texas

 

Ethics Advisory Opinion No. 112

January 4, 2007

Issued By: City Attorney’s Office

 

I.  Issue: 

 

May a city employee accept a hunting trip from a city vendor where the employee has no involvement in the selection of vendors?

 

II. Inquiry

 

A city employee advises that he has been invited to go on a hunting trip to be paid for by a company that does business with the city.   The employee advises that he considers the sales representative to be a friend and that he, as a city employee, has no role or responsibility in the selection of vendors by his department.  He inquires whether he may accept the invitation to the hunting trip.

 

III.  The Ethics Code  - Gifts

 

A.   Receipt of Gifts or Benefits

The Ethics Code contains two rules which regulate the acceptance of gifts by city employees.   The first restricts gifts given with the intent to influence or reward a city official or employee for official action:

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.

Ethics Code, Section 2-45(a)(1). 

The second rule restricts gifts from specific sources, regardless of the motivation for the gift:

A city official or employee shall not solicit, accept, or agree to accept any gift or benefit, 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 action or advocating on zoning or platting matters before a city body,  

save and except for  

i)  items received that are of nominal value; or  

ii) meals in an individual expense of $50 or less at any occurrence and no more than a cumulative value of $500 in a single calendar year from a single source.

Ethics Code, Section 2-45(a)(2).   

In this inquiry, there is no indication that the hunting trip is being offered for the purpose of influencing or persuading the city employee in matters of contract selection.   Accordingly, the prohibition in Section 2-45(a)(1) would not apply. 

Section 2-45(a)(2), however, restricts employees from accepting gifts from city vendors regardless of the intent of the gift donor.  The employee has pointed out that he has no personal involvement or responsibility in the selection of vendors for his department.   For purposes of these gift rules, however, the key issue is whether the gift donor is a city vendor or contractor, not whether the employee has any involvement in the award of city contracts.   Because this gift is being provided by a city vendor, the employee is subject to the restrictions.

There are some two exceptions regarding gifts from these restricted sources in Section 2-45(b)(1) and (b)(12):   Section 2-45(b)(1) provides an exception for:

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.

Section 2-45(b)(12) provides an exception for:

 

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.

As discussed above, the employee considers the sales representative to be a personal friend.  However, under the facts of this inquiry, the hunting trip is being paid for by the company, not by the sales representative as an individual.   Further, although Section 2-45(b)(1) does allow the receipt of gifts from friends who happen also to be restricted donors, the gifts must relate to a special occasion and be “fairly commensurate with the occasion and the relationship between the donor and recipient.”    From the information provided in this inquiry, it is not established that the sales representative is offering the gift in connection with a special occasion, or that the employee and the sales representative have a personal friendship outside their interactions involving the city in which gifts of this type are customary or typical.    In addition, the fact that the company is paying for this trip rather than the sales representative further indicates that this gift is not personal in nature.  Accordingly, the exception in Section 2-45(b)(1) does not apply.

Section 2-45(b)(12), however, would allow the employee to accept lodging, transportation and entertainment accepted as a guest of the vendor up to a value of $500.   The phrase “as a guest” requires the employee to accompany the donor to the event.  As described, the employee would accompany the company’s representative on this trip, so that requirement would be satisfied.   Therefore, the employee may accept the hunting trip under Section 2-45(b)(12), so long as the value of the trip does not exceed $500.   It is the responsibility of the employee to inquire about the fair market value of the gift.   If the value does not exceed $500 and the employee chooses to accept the gift, the employee must comply with any applicable gift reporting requirements.

B.  Reporting Gifts and Benefits

The Ethics Code not only regulates the receipt of gifts from certain sources, but also whether the benefit must be reported.  These are separate requirements.  A city employee may be authorized to receive a gift, but may or may not be required to disclose it.

There are two disclosure provisions.  First, all officials, including board members, and executive-level staff are required to submit a full annual financial disclosure report.   Ethics Code, Section 2-73.  Some other designated staff members, the “specified employees,” are required to submit a one-page annual gift report.   Ethics Code, Section 2-78.   The remaining employees are not subject to financial disclosure requirements.   For individuals who file financial disclosure or gift reports, they must report the receipt of gifts with more than $100, regardless of their source. 

There are exceptions, though, for the types of gifts or benefits that must be included in the report:

(1)  lawful campaign contributions which are reported as required by state statute or local ordinance;

(2)  gifts received from family members within the second degree of affinity or consanguinity;

(3)  gifts from an individual based on personal friendship who during the preceding three calendar years:  a)  has not done or sought to do business with the city;  b) has not sought city action on any issue before the City Council or any city board or commission;  c)  is not associated with any business or entity that has done or sought to do business with the city; and d) is not associated with any business or entity that has sought city action on any issue before the City Council or a city board or commission;

4)  gifts received among and between fellow city employees and city officials;

5) admission to events in which the reporting party participated in connection official duties; and

6)  payment of or reimbursement of travel and accommodation expenses accepted in connection with official duties which have been reported [on a travel report]; 

Ethics Code, Sections 2-74(n) and 2-78.    As discussed in the preceding section, under the circumstances of this inquiry, the gift would not be treated as a gift from a personal friend.  Accordingly, if the value is greater than $100 and the employee is subject to either of these reporting requirements, the gift must be listed on the employee’s disclosure reports.

IV.  Conclusion

Under the circumstances of this inquiry, the employee may accept the invitation to participate in the hunting trip so long as the value of the trip does not exceed $500 and the employee accompanies the donor or its representative as a guest.   He must also comply with any applicable gift disclosure requirements.