Ethics Advisory Opinion No. 95
Issued By: City Attorney’s Office
I. Issue: Does a
city employee have a conflict of interest or an interest in a prohibited
contract if his father is an employee of an entity that is seeking a contract
with the City of
A city employee’s father is an account executive for a business entity seeking a contract with the city’s Purchasing Department. The employee’s father is actively involved in the negotiating of the contract. The employee works for a different department and he will have no involvement in the contract. The employee inquires whether this creates any conflicts of interest for him under the city’s Ethics Code.
The Ethics Code contains two types of rules that address the business interests of city personnel or their family members with the city. First is the “conflict-of-interest” rules, which do not prohibit contracts, but do require the affected city official or employee to recuse himself or herself from any involvement from any matter in which he or she may have a financial interest. The second is the “prohibited contracts” provision set out in the City Charter, which forbids certain city personnel or their family from contracting with the city. These provisions are discussed below.
A. The “Conflicts of Interest” Provisions
The Ethics Code has two “conflicts-of-interest” provisions. The first states that a city official, including a board member, cannot take any official action that is likely to affect the economic interests of the
2) the official’s family within the 2nd degree, and members of the official’s household;
3) businesses in which the official or his or her family members hold an ownership interest;
4) employers of the official or the official’s family members;
5) business entities or non-profit organizations for which the official serves in an executive or decision-making capacity;
6) individuals or businesses with whom the official is engaged in business or employment negotiations; and
7) any outside client of the official.
Ethics Code, Section 2-43. Should a matter that would affect the official’s financial interests or these other interests come before the official’s board, the Ethics Code requires that the official recuse himself or herself.
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.
In this matter, the facts indicate that the employee will have no involvement in the selection, awarding or administration of the contract being sought by his father’s employer. Accordingly, the employee has no conflict of interest which would require him to file a disclosure and recusal notice with the Office of the City Clerk.
B. Prohibited Contracts under the City Charter and Ethics Code
The “prohibited contracts” provision is set out in Section 141 of the City Charter and is restated in Section 2-52 of the Ethics Code. Section 2-52(a) states:
Charter Provision. The Charter of the City of San Antonio, in 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(e)(1) defines “employee” as any employee of the city who is required to file a financial disclosure statement pursuant to Section 2-73 of Division 7 (Financial Disclosure Report). “Financial disclosure” employees are executive-level staff such as department directors and assistant department directors.
The “prohibited contracts” provision does not apply to “specified” employees who file the one-page gift report under Section 2-78, or to the remaining employees who not subject to any financial disclosure requirement. The employee in this inquiry is a “specified” employee who files a report under Section 2-78. For this reason, the “prohibited contracts” provision of Section 141 of the City Charter does not apply to him or his family.
In addition, the provision does not apply for a second reason. Section 141 only prohibits contracts between the city and city personnel, their family or their family’s businesses in which there is an ownership interest exceeding 10%. Section 2-52(b). In this inquiry, the father does not have an ownership interest in the business seeking the city contract, but rather he is merely an employee. Accordingly, the “prohibited contracts” provision is inapplicable.
Because the city employee will have no involvement in the contract being sought by his father’s employer, the employee does not have a conflict of interest under the city’s Ethics Code. Also, the proposed business relationship does not violate the “prohibited contracts” provisions of the City Charter or the Ethics Code because the employee is not a staff member subject to that prohibition and because neither he nor his family members have any ownership interest in the entity seeking the contract.
 Section 2-52(e)(2) defines “city officers” to include (A) the Mayor or any Council member; (B) a Municipal Court Judge or Magistrate; (C) a member of any board or commission which is more than advisory in nature. The term does not include members of the board of another governmental entity even if some or all of these members are appointed by the city.