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City of San Antonio, Texas

Ethics Advisory Opinion No. 2011-05
March 31, 2011
Issued By: City Attorney’s Office

 

I.  Issue

May the spouse of a member of the City’s Cultural Arts Board apply for and receive arts funding from the City?

II. Inquiry:

A member of the City’s Cultural Arts Board has asked whether or not the Ethics Code would prohibit his spouse from applying for or obtaining arts funding from the City. 

III. The Ethics Code:

The City’s Ethics Code applies to city-appointed members of city-created boards, and to certain other boards to which the city has appointment authority.  The Cultural Arts Board is an advisory board created by the city, and whose members are appointed by the City Council.

All city board members are city officials, but not officers.  More than advisory board members have more rules about their activities than members of purely advisory boards.

A.  Conflicts of Interests Provisions

The Ethics Code has two “conflicts-of-interest” provisions applicable to all city officials and employees.  First, a city official cannot take any official action that is likely to affect the economic interests of the official or his spouse, and any businesses in which the official or his or her family members hold an ownership interest, or any business entities or non-profit organizations for which the official serves in an executive or decision-making capacity.  Ethics Code, Section 2-43. 

The Cultural Arts Board considers requests submitted to the City for arts funding, and makes recommendations to the City Council for such funding.  Because his spouse is seeking arts funding from the City, the board member must recuse himself from all discussion related to his spouse’s application, and must fill out the conflicts disclosure forms, which must be filed with the Office of the City Clerk.

B.  Prohibition against the Unfair Advancement of Private Interests

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 requires officials and employees to render decisions based on the merits and not on personal considerations or relationships. 

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 cose 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.  The board member must recuse himself from all discussions related to his spouse’s application for arts funding,   and submit the recusal forms mentioned above.

C.  Prohibited Interests in Contracts Provisions

Section 141 of the City Charter prohibits city officers and higher-level city staff members from having an interest in a contract with the city.  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 of the Ethics Code restates and interprets this prohibition as well and defines a financial interest in a contract as follows:

2-52 (b) Financial Interest. An officer or employee is presumed to have a prohibited “financial interest” in a contract with the city, or in the sale to the city of land, materials, supplies, or service, if any of the following individuals or entities is a party to the contract or sale:

(1)  the officer or employee;
(2)  his or her spouse, sibling, parent, child or other family member within the first degree of consanguinity or affinity;
(3)  a business entity in which the officer or employee, or his or her parent, child or spouse, directly or indirectly owns:

(A) ten (10) percent or more of the voting stock or shares of the business entity, or
(B) ten (10) percent or more of the fair market value of the business entity; or

(4)  a business entity of which any individual or entity listed in Subsection (1), (2) or (3) is:

(A)    a subcontractor on a city contract;
(B)    a partner; or
(C)    a parent or subsidiary business entity.  

For purposes of applying Section 141 of the Charter under this Section, the City Code defines City officers as the Mayor and Council members, Municipal Court Judges and Magistrates, and members of boards and commissions that are more than advisory in Nature.  The Cultural Arts Board is a purely advisory board, and therefore, the application of this rule is not triggered by these circumstances.

IV. Conclusion

The Cultural Arts Board member must recuse himself from the consideration of his spouse’s application for arts funding from the City.