Ethics Advisory Opinion No. 12
September 16, 2003
Issued By: The Ethics Review Board
Whether the City’s Ethics Code precludes an entity doing business with the City from inviting City Officials and/or City Employees to events at the entity’s leased suite at the SBC Center
Whether that accepting that invitation would constitute an Ethics Code violation on the part of the City Official or Employee.
An attorney represents a client currently holding a contract issued by The City of San Antonio. The client is the lessee of a suite at the SBC Center. As a suite lessee, the client occasionally receives complimentary tickets to various functions from the SBC center with a zero face value allowing entry into the suite along with complimentary parking passes with no face value. In addition, the client may purchase standing room only tickets to functions at a face value of forty-six ($46.00) dollars. As the suite lessee, the client occasionally chooses to give away such tickets to various governmental entities and organizations.
In regards to the Ethics Rule on "Gifts," Sec. 2-45(2), which states that: "a city official or employee shall not accept any gift or benefit, except for those that are $50 or less at any occurrence and $500 cumulative value in a single calendar year,” the attorney requests an advisory opinion/clarification on the following questions(s) on behalf of her client:
The applicable definitions and standards of conduct as set forth in the City’s Ethics Code are:
SECTION 2. DEFINITIONS
As used in this code of ethics, the following words and phrases have the meaning ascribed to them in this Section, unless the context requires otherwise or more specific definitions set forth elsewhere in this code apply:
(o) Employee. Except as provided in Section 10 of Part B (Prohibited Interests in Contracts), Section 4(c) of Part C (Discretionary Contracts), and Part G (Financial Disclosure), the term “employee” or “city employee” is any person listed on the City of San Antonio payroll as an employee, whether part-time or full-time
(p) Gift. “Gift” means a voluntary transfer of property (including the payment of money) or the conferral of a benefit having pecuniary value (such as the rendition of services or the forbearance of collection on a debt), unless consideration of equal or greater value is received by the donor.
(u) Official. Except in Part E (Lobbyists), the term “official” or “city official” includes the following persons:
Members of the City Council;
Municipal Court Judges and Magistrates;
The City Manager;
Deputy City Manager;
Assistant City Managers;
Assistants to the City Manager;
Assistant City Clerk;
All department heads and assistant department heads;
Market Square Superintendent;
Assistant to City Council;
Assistant to Mayor;
Secretary to City Manager;
Community Action Manager;
Public Utilities Supervisor; and
Members of all boards, commissions (except the Youth Commission whose members are minors), committees, and other bodies created by the City Council pursuant to federal or state law or City ordinance, including entities that may be advisory only in nature; and board members of any entity who are appointed by the City Council to such board membership.
SECTION 2. Gifts
(a) General Rule.
(1) 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.
(2) A city official or employee shall not solicit, accept, or agree to accept any gift or benefit, save and except for items received that are of nominal value and meals in an individual expense of $50 or less at any occurrence, or meals with no more than a cumulative value of $500 in a single calendar year, from a single source, 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 or advocating on zoning or platting matters before a city body.
Doing business with the city includes, but is not limited to, individuals and business entities that are parties to a discretionary contract, individuals and business entities that are subcontractors to a discretionary contract, and partners and/or parents and/or subsidiary business entities of any individuals and business entities that are parties to a discretionary contract.
(b) Special Applications. Subsections (a)(1) and (a)(2) do not include:
(1) a gift to a city official or employee relating to a special occasion, such as a wedding, anniversary, graduation, birth, illness, death, or holiday, provided that the value of the gift is fairly commensurate with the occasion and the relationship between the donor and recipient;
(6) admission to an event in which the city official or employee
is participating in connection with official duties;
(8) admission to an event in which the city official or employee is participating in connection with his or her spouse’s position;
(10) lodging, transportation, or entertainment that the official or employee accepts as a guest and, if the donee is required by law to report those items, reported by the donee in accordance with that law, up to $500 from a single source in a calendar year.
(d) Gifts to Closely Related Persons. A city official or employee shall take reasonable steps to persuade:
(1) a parent, spouse, child, or other relative within the second degree of consanguinity or affinity, or
(2) an outside business associate
not to solicit, accept, or agree to accept any gift or benefit:
(3) that reasonably tends to influence or reward the city official’s or employee’s official conduct, or
(4) that the official or employee knows or should know is being offered with the intent to influence or reward the city official’s or employee’s discharge of official duties.
If a city official or employee required to file a financial disclosure report under Part G (Financial Disclosure) knows that a gift or benefit meeting the requirements of Subsections (d)(3) or (d)(4) of this rule has been accepted and retained by a person identified in Subsections (d)(1) or (d)(2) of this rule, the official or employee shall promptly file a report with the City Clerk’s office disclosing the donor, the value of the gift or benefit, the recipient, and the recipient’s relationship to the official or employee filing the report.
Before addressing the individual questions posed in the request, it is worthwhile to restate the purpose of the Ethics Code: “It is essential in a democratic system that the public have confidence in the integrity, independence, and impartiality of those who act on their behalf in government… 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.” Accepting gifts from an entity doing business with the City can create the appearance of impropriety even if the letter of the Code has not been violated.
The quoted reference to the Code in the request is, unfortunately, incorrect. As can be seen in the extracts from the Code cited above, the terms “$50 or less at any occurrence and $500 cumulative value in a single calendar year,” refer to meals; the value of gifts is limited to those of “nominal” value.
The answers to the individual questions posed are as follows:
1. Yes, the Ethics Rules apply to ALL city entities, including but not limited to, city agents, employees, and council members as defined in the Code (see above).
2. Yes, the complimentary tickets with a zero ($0.00) face value fall under the above-mentioned Ethics Rule; if the general public would pay for admission, then the tickets have value greater than nominal. An approximation of that value might be the average cost of a general admission seat for the event attended.
3. Yes, the standing room only tickets ($46.00) face value fall under the above-mentioned Ethics Rule; once again the value is more than nominal. $46 is not the true market value of those tickets.
4. If the beverages/food could be termed “refreshments” such as would be common in social gatherings or business meetings, they would not fall under the above-mentioned Ethics Rule. If on the other hand they could be considered to be a meal, even of the buffet variety, they would fall under the restrictions of the Code. The interpretation and the possible value assigned should be consistent with that expected of a reasonable citizen. If a value is assumed, that value is separate from the value of the ticket.
5. No, if the City employee or official has purchased a ticket to the SBC event and is merely “visiting” the client’s suite, there would be no issue under the Code. If a meal was consumed that would be reportable under the Code.
6. Yes, the complimentary (no face value) parking passes fall under the abovementioned Ethics Rule; if a member of the general public would pay for a similar parking permit, then the pass has a value greater than nominal. The value can be assumed equivalent to that paid by the public.
7. Yes, the city official/employee's spouse or family member fall under the “Gifts to Closely Related Persons” provisions of the Code; and if both the City official/employee and the spouse or family member attended it would be considered separate occurrences.
In general, the instances of gifting SBC suite access that would have the greatest likelihood of creating the perception of impropriety and thus the possibility of Code violation would be when the City employees or officials are directly involved in awarding, evaluating or administrating the contract between your client and the City. In the end, the burden falls upon the individual to whom the gift is offered to understand its fair market value and the possible ethical impact of accepting it. The Ethics Review Board evaluates each Ethics Complaint on its individual merits; there is no “one-size-fits-all” opinion.
ARTHUR DOWNEY, District 9