City of San Antonio, Texas
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
and
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:
- Question: Does the above-mentioned Ethics Rule
apply to ALL city entities, including but not limited to, city agents,
employees, and council members?
- Question: Do the complimentary tickets with a
zero ($0.00) face value fall under the above-mentioned Ethics Rule, and if
so, at what value?
- Question: Do the standing room only tickets
($46.00) face value purchased by either my client or a city
official/employee fall under the above-mentioned Ethics Rules?
- Question: Do the beverages/food catered by my
client for the suite fall under the above-mentioned Ethics Rule, and if
so, is this considered a separate occurrence or a cumulative amount from
either a complimentary or a standing room only ticket, and at what value?
(i.e. count the number of chips and salsa he/she consumes)?
- Question: If the City employee purchases a
ticket on his/her own, or has access to the Bexar County's SBC suite, may
the employee attend my client's suite since there is no charge (i.e. the
employee has gained entry into the SBC center by other means)?
- Question: Do the complimentary (no face value)
parking passes fall under the abovementioned Ethics Rule and at what value?
- Question: Does the
city official/employee's spouse or family member fall under the
above-mentioned Ethics Rule, and if so, do both the city official/employee
and their spouse or family member count as one or separate occurrences
under the rule?
The applicable definitions and
standards of conduct as set forth in the City’s Ethics Code are:
PART A:
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:
The Mayor;
Members of the City Council;
Municipal Court Judges and Magistrates;
The City Manager;
Deputy City Manager;
Assistant City Managers;
Assistants to the City Manager;
City Clerk;
Assistant City Clerk;
All department heads and assistant department heads;
Market Square Superintendent;
Assistant to City Council;
Assistant to Mayor;
Secretary to City Manager;
Executive Secretaries;
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.
PART B: PRESENT CITY OFFICIALS AND EMPLOYEES
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.
OPINION
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
Chair