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City of San Antonio, Texas

Ethics Advisory Opinion No. 2010-07
September 20, 2010
Issued By: City Attorney’s Office

I.  Issue

May a city employee accept financial assistance from an organization that seeks action from the city from time to time?

II. Inquiry

A city employee advises that she purchases real estate for the purpose of renovating the property.    She is aware of a private sector organization that offers financial assistance to individuals who wish to restore properties.  That organization has indicated it would be interested in providing assistance to one of her projects.  The organization seeks action from the city from time to time, including from the department for which this employee works.  In her capacity as a city employee, this individual interacts with representatives from this entity.

The employee inquires whether the Ethics Code would prohibit her from accepting this financial assistance.

III. The Ethics Code

A.  Restrictions on the Receipt of Gifts and Benefits by City Employees

The Ethics Code contains two rules which regulate the acceptance of gifts or benefits 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).   This rule provides an exception for gifts up to $50 in value.    
In this instance, the city employee is being offered a benefit with financial value of greater than $50 from a private sector organization that sometimes seeks action from the city.    There is no indication from the inquiry that the organization is trying to provide the assistance to the employee with the intent of influencing or rewarding official conduct, so the first rule does not appear to be applicable.  

The second rule imposes restrictions regardless of intent, but only on gifts from three specific sources: those doing or seeking business with the city; registered lobbyists; and those seeking action or advocating on a zoning or platting matter.   The entity offering assistance is involved in community programs and takes positions on matters pending before the city.  Its representatives may also, from time to time, seek to encourage or persuade the city to take certain courses of action on issues of interest.

However, although the entity interacts with the city, there is no indication that the entity has or is seeking a business relationship or contract with the city.  Section 2-45(a)(2) provides the meaning of “doing business:”

Doing business with the city includes, but is not limited to, individuals and entities that are parties to a discretionary contract, individuals and entities that are subcontractors to a discretionary contract, and partners and/or parents and/or subsidiary business entities of any individuals and entities that are parties to a discretionary contract and individuals or entities that seek or have low-bid contracts with the city.

The entity’s actions with the city do not seem to fit into this meaning.  Further, it is not seeking zoning or platting decisions, nor is it a registered lobbyist.    Accordingly, the entity in this inquiry does not fall into any of these three categories of those restricted in giving gifts to city officials or employees.  The gift provisions of the Ethics Code, therefore, would not prohibit the employee from accepting the financial assistance offered by the entity.

However, other provisions of the Ethics Code are relevant.  

B.  Prohibition against the Unfair Advancement of Private Interests

In its “Statement of Purpose,” the Ethics Code offers this guidance:

Public service is a public trust.  .   .   .   To ensure and enhance public confidence in city government, each city official must not only adhere to the principles of ethical conduct set forth in this code and technical compliance therewith, but they must scrupulously avoid the appearance of impropriety at all times.

Section 2-44 of the Ethics Code prohibits a city official or employee from using their official position to unfairly advance or impede private interests.  There is nothing to indicate that the employee would accept the financial assistance in exchange for providing the entity with favorable treatment or consideration.   But the code urges employees to avoid even “the appearance of impropriety.” 

In this instance, the entity is actively involved in matters pending before the city including the employee’s department and the employee herself.   The employee may find herself in a position in which she will be required to exercise her discretion in a way that affects the interests of the entity.  Although she would not be in violation of the gift provisions by accepting the assistance, there is considerable potential that the offer could be viewed as an incentive for favorable treatment.   Accordingly, this office recommends this offer of assistance be declined. 

IV. Conclusion

The employee would not be prohibited from accepting financial assistance from the private sector entity.  However, it is recommended that the employee decline the offer to avoid the appearance of impropriety.