Ethics Advisory Opinion No. 37

 January 19, 2000

Issued By:  City Attorney’s Office

 Whether members of the Zoning Commission and/or the Planning Commission may participate in mediating or contributing to the development of a property which has an application pending before the Commission. 

  

The Planning Department has asked whether members of the Zoning Commission and/or the Planning Commission may participate in mediating or contributing to the development of a property which has an application pending before the Commission.  The following facts are presented: 

The Zoning Commission is established pursuant to Texas Local Government Code Section 211.007.  The Commission is empowered to, among other things, make recommendations for changes in zoning districts.  The Planning Commission, on the other hand, is established pursuant to Section 117 of the San Antonio City Charter.  This Commission acts as an advisory board to the City Council.  Among its duties, the Planning Commission amends the master plan for the physical development of San Antonio

The issue is whether an individual who serves on either of these two (2) commissions may participate in the development of a property which has an application pending before the commission.  Part A, Section 2. of the Code of Ethics[1] states that an “official” includes, among others, “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...  Therefore, an individual who sits on either of these two (2) commissions is a City official, and as such, is required to follow the standards of conduct as set out in the Code.

 Unfair Advancement of Private Interests.  Part B, Section 2 of the Code[2] prohibits all City officials from using their position to unfairly advance or impede private interests.  More specifically, a City official “may not enter into any agreement . . . with any other person that official action by the . . . official will be rewarded . . . .by the other person [ ].

 It is my understanding that members of the Zoning Commission and Planning Commission often meet individually with the applicants requesting the proposed changes in the member’s district and the adjacent property owners.  In an effort to resolve any disagreements between the two (2) parties, the commission member may agree to support a proposed change, subject to the applicant’s agreement to limitations requested by the adjacent property owners.  Such an agreement does not violate this section of the Code in that a commission member who works to resolve the disagreement is presumably acting with the best interests of his district in mind and not with the interests of one particular individual or entity.

 Representation of Private Interests. Part B, Section 5 of the Code[3] prohibits a City official from representing any group before the board on which he sits, before city staff providing support to that board or before City Council on matters previously heard before the board.  Under the present situation, members of these commissions may meet on an individual basis with applicants and property owners in an effort to resolve any disagreements between the two (2) parties.  Once a resolution is reached, the matter is brought before the respective commission and presented for its approval.  The commission member may recommend approval of the change given the resolution between the parties.  This action does not violate this section of the Code as the member, in advocating his approval, does so as the representative for his district.

 SUMMARY

Members of the Zoning Commission and the Planning Commission may participate in mediating and contributing to the development of a property which has an application pending before their respective commission.  However, they should remain cognizant of the standards of conduct set forth in the Code, including, but not limited to, recusing and disclosing any official action that may confer an economic benefit on an individual or entity as prohibited in the Code.

  

FRANK J. GARZA

City Attorney

 

 



[1]   Currently codified in Ethics Code Section 2-42

[2]   Currently codified in Ethics Code Section 2-44

[3]   Currently codified in Ethics Code Section 2-47