City of San Antonio, Texas

Ethics Advisory Opinion No. 83

January 27, 2004

Issued By: City Attorney’s Office

I. Issue

Must a city commission member recuse himself from official action

on a matter that would affect the financial interests of a

non-profit organization for which the official formerly

served as a member of its board?

II. Factual Background

A city board will consider whether to provide funds to a non-profit civic organization. One member of this board previously served as a member of the board of the non-profit organization seeking funds. This individual resigned from the non-profit organization’s board before becoming a member of the city board. This city board member has inquired whether his prior relationship to this non-profit organization requires him to recuse himself from the matter before the city board.

III. The Ethics Code Conflict-of-Interest Provisions

Section 2-43(a)(8) of the City Code (Ethics Code) states:

General Rule. To avoid the appearance and risk of impropriety, a city official or employee shall not take any official action that he or she knows is likely to affect the economic interests of:

(8)  a business entity or nonprofit entity for which the city official or employee serves as an officer or director or in any other policy making position.

Section 2-43(a)(8) would require the board member to recuse himself from the matter involving the non-profit board only if the individual were still serving on the board of the non-profit organization. Because he is not currently a member of the non-profit board, Section 2-43 would not preclude him from participating in a decision affecting the financial interests of that entity.

The board member, though, should also be cognizant of Section 2-44. Section 2-44 states:

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.

This rule requires that the board member should consider issues on their merits. The member must evaluate whether he can consider an issue before him fairly and objectively. If the member is not confident of his impartiality on the matter, then he should recuse himself pursuant to Section 2-44. If the member recuses himself, he must disclose the conflict on a form filed with the Office of the City and refrain from participating in any discussion of the matter with the other members of the board. Section 2-43(b) and Section 2-44(c).

VI. Conclusion

Because the board member no longer serves on the board of the non-profit organization seeking financial assistance from the city board, Section 2-43 does not require his recusal. Under Section 2-44, the board member must determine whether he can consider the matter fairly and impartially given his prior relationship with the non-profit entity. If he is not confident that he can impartially consider the issue on its merits, he must recuse himself.