City of San Antonio, Texas

 

Ethics Advisory Opinion No. 2009-02

February 5, 2009

Issued By: City Attorney’s Office

 

I.  Issue: 

 

May a city employee accept the donation of office equipment by a city contractor?

 

II. Inquiry

 

A city contractor has offered to donate a new version of office equipment for demonstration purposes and to obtain feedback from potential customers.  A member of city staff has asked if he may accept the donation and use the equipment for city business.

III.  The Ethics Code

A.  Gift Restrictions

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.

Ethics Code, Section 2-45(a)(2).     

In this inquiry, a potential city contractor has offered to donate office equipment to the city for demonstration and feedback purposes.  The employee to whom the offer was made has advised that the equipment would be used only for city business.  Accordingly, the benefit offered by the potential contractor is a gift to the city, rather than a gift to the individual employee.   Because the employee will enjoy no personal benefit, this donation would not constitute a gift to the employee subject to the restrictions in Section 2-45.     As a donation to the city, the equipment must be processed into city inventory.

 

B.  Prohibition Against the Unfair Advancement of Private Interests

 

The employee who will use the donated equipment should remain cognizant of the prohibition against the unfair advancement of private interests under Section 2-44 of the Ethics Code.  Section 2-44 states in relevant part:

(a)   General Rule. A city official or employee may not use his or her official position to unfairly advance or impede private interests, or to grant or secure, or attempt to grant or secure, for any person (including himself or herself) any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons.  A city official who represents to a person that he or she may provide an advantage to that person based on the official’s position on a board or commission violates this rule.  

(b)     Special Rules. The following special rules apply in addition to the general rule: 

 (2)    Reciprocal Favors. A city official or employee may not enter into an agreement or understanding with any other person that official action by the official or employee will be rewarded or reciprocated by the other person, directly or indirectly.  

Should this employee be involved in any matter in which the donor company is seeking contracting opportunities or other action from the city, the employee must make decisions on the merits, and not based upon personal considerations or appreciation for the donated equipment provided for the city’s business use.

 

IV.    Conclusion

 

A potential contract may donate equipment or products to the city for demonstration and feedback purposes.   Donated items must be used for city business and not personal matters.   While successful or unsuccessful experience with the donated items may influence subsequent decisions with the company as a potential vendor, there should be a clear understanding that donations of products will not result in favorable treatment other than consideration based on the merits of the products.