City of San Antonio, Texas

Ethics Advisory Opinion No. 14

September 1, 2004

Issued By: The Ethics Review Board

If an attorney or engineer is engaged for his or her professional services in relation to a discretionary contract with the City of San Antonio, and that attorney or engineer is a registered lobbyist, is disclosure required if the attorney or engineer does not engage in lobbying activities related to the contract?

The Ethics Review Board has been asked to review the issue of when a prospective city contractor is required to disclose the name of any lobbyists it has retained in connection with the contract. The requestor offers two examples to illustrate his inquiry.

Example 1: “Bob Smith” is an engineer and registered lobbyist. “ABC Company” hires Bob Smith to provide engineering advice related to the discretionary contract, but engages in no lobbying;

Example 2: “Sally Jones” is an attorney and registered lobbyist. “ABC Company” engages Sally for legal advice pertaining to the discretionary contract, but Sally does not participate in any lobbying activities.

Part D, Section 1 of the Ethics Code states:

Persons Seeking Discretionary Contracts:

(a) Disclosure of Parties, Owners, and Closely Related Persons. For the purpose of assisting the city in the enforcement of provisions contained in the City Charter and this code of ethics, an individual or business entity seeking a discretionary contract from the city is required to disclose in connection with a proposal for a discretionary contract on a form provided by the city:

(1) the identity of any individual who would be a party to the discretionary contract;

(2) the identity of any business entity that would be a party to the discretionary contract and the name of:

(A) any individual or business entity that would be a subcontractor on the discretionary contract; and

(B) any individual or business entity that is known to be a partner, or a parent or subsidiary business entity, of any individual or business entity who would be a party to the discretionary contract; and

(3) the identity of any lobbyist or public relations firm employed for purposes relating to the discretionary contract being sought by any individual or business entity who would be a party to the discretionary contract.

The requestor inquires whether under Part D, Section 1 the “ABC Company” would be required to list Bob Smith or Sally Jones as lobbyists.

The inquiry demonstrates that an individual may play more than one role in connection with a contract. As an engineer, Mr. Smith can provide technical services related to his expertise in engineering. However, Mr. Smith is also a registered lobbyist.

Under Part E, Section 1, a “lobbyist” is a person who

1) communicates, either verbally or in writing

2) with a city official

3) in an effort to influence or persuade the official

4) regarding a municipal question.

Engineers, attorneys and other professionals in the course of their work, may also come to develop an expertise in handling the process of navigating through contracting procedures with the City of San Antonio. As they become more familiar with such processes and procedures, they may be retained to assist with the process of applying for contracts in addition to or instead of providing services related only to their technical expertise.

In the set of facts put forth by the requestor, Mr. Smith has not engaged in any lobbying activity. Assuming Mr. Smith has provided engineering work for ABC Company, but has not communicated with a city official on behalf of his employer to influence or persuade that official regarding the contract in question, then Mr. Smith has not engaged in lobbying. If he has not engaged in any lobbying activity, Mr. Smith is not a lobbyist for purposes of this contract. Accordingly, ABC would not have to disclose Mr. Smith’s participation on the discretionary contract disclosure form as a lobbyist. ABC would treat Mr. Smith as it would any other engineer providing engineering services who was not also a registered lobbyist. However, if Mr. Smith participated in the contract in both his capacity as an engineer and as a lobbyist, then ABC Company would be required to list him as its lobbyist.

The same would apply to Sally Jones. If she has provided legal advice to assist on the contract but has not contacted city officials for the purpose of influencing or persuading them to favor her employer’s application, then ABC Company would not be required to list her as one of its lobbyists, either.

The Ethics Review Board cautions lobbyists and their employers that if a person engages in both lobbying activities and other activities on behalf of a client, the person may not structure the receipt of compensation in a way that unreasonably minimizes the value of the lobbying activities. Compensation structured in such a way still constitutes compensation in connection with lobbying activities. Part E, Section 1(c) (definition of compensation).

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ARTHUR DOWNEY, District 9

Chair

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MICHAEL ARIENS

Mayor Appointee

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CHARLES CODD

District 1

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DAVID DE LA GARZA

District 4

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STEVEN G. GENGENBACHER

District 3

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AUGUST STEPHEN JOHNSON

District 2

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ELIZABETH BENAVIDES MELSON

District 7

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LOREN WOOD

District 10

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BENJAMIN F. YOUNGBLOOD, III

District 8