Ethics Advisory Opinion No.  39

January 31, 2000

Issued By: City Attorney’s Office

Whether a uniformed City employee may serve as City Manager for the City of Pleasanton.

A City employee in the Fire Department has asked whether he may serve as the City Manager for the City of Pleasanton.  The following facts are presented:

 Albert Uresti is one of the District Chiefs in the Fire Department.  As a District Chief, he is responsible for, among other things, commanding and coordinating activities related to fire fighting work within his assigned area.  This includes responding to fire alarms and directing fire fighting and lifesaving operations until relieved of command by a superior officer.  Pursuant to Section 2/4.18, Outside Jobs, of the Fire Department Rules and Regulations, District Chief Uresti is requesting permission for outside employment as the City Manger for the City of Pleasanton. 

The issue is whether, under state law and the Ethics Code of the City of San Antonio, Mr. Uresti may be employed as the City Manager for the City of Pleasanton while also employed with the City of San Antonio.  Under the Ethics Code of the City of San Antonio, all City employees are required to follow the standards of conduct as set forth in the Code.

 Texas Constitution.  Article XVI, Section 40 of the Texas Constitution states that “[n]o person shall hold or exercise at the same time, more than one civil office of emolument, except [as provided herein].”  What distinguishes an “office” from mere “employment” is “whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.”  Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).  Using this basis, Texas courts focus on the independence exercised by the individual, holding that individuals who are under the direction and control of others are not public officers for purposes of Article XVI, Section 40.  Aldine, 280 S.W.2d at 583; Op. Tex. Att’y Gen. No. DM-156 (1992).

 Mr. Uresti is employed by the City as a District Chief in the Fire Department.  As stated above, his duties include, among others, responding to fire alarms in his district and supervising the procedures at a site until relieved of command by a superior officer, duties that are under the supervision of the Fire Chief.  However, to determine whether a District Chief in the City’s Fire Department is a “civil office” for the purposes of Article XVI, Section 40 of the Constitution, state and local laws must be examined.

The authority of the Fire Chief and certain members of the Fire Department is addressed in Section 11 of the City Code which adopts the Uniform Fire Code. Under Section 11-40 of the City Code, Section 103.2.1.1.9 of the Uniform Fire Code, amends the authority of the Fire Chief.  Section 103.2.1.1.9 states:

“It shall be the duty of the Fire Chief and he is hereby given the necessary power to do whatever may be deemed necessary by him for the safety and protection of property and citizens from fire hazards.  The Fire Chief may delegate his power to any other member of the Fire Department.” (emphasis added).

 Despite the possibility that a District Fire Chief may, at times, be delegated with the authority vested in the Fire Chief, the City Charter expressly provides that the Fire Chief is the head of the Fire Department.  Moreover, the job description for a district fire chief expressly provides that such position is under the supervision of an Assistant Fire Chief.  The fact that the district chief reports to an assistant fire chief who, in turn, reports to the Fire Chief, takes the position of district fire chief even one step further away from the requirement of exercising “any sovereign function . . .largely independent of the control of others.”  Aldine, 280 S.W.2d at 583.  Therefore, applying the Aldine test, Mr. Uresti does not hold a “civil office” as that term is used in Article XVI, Section 40 of the Texas Constitution.[1]  Therefore, Mr. Uresti would not be in violation of the State Constitution provision.

 Ethics Code.  Mr. Uresti is a City employee as defined in the Ethics Code.  As such, he is required to follow the standards of conduct as stated therein.

 Improper Economic Benefit.  As a general rule, a City employee may not take any official action that he knows is likely to have an effect on, among others, his economic interest or the economic interest of his outside employer that is distinguishable from the effect on the public in general.  Should such occur, the City employee is required to recuse himself immediately, refraining from any further participation in the matter, and disclose in writing to the City Clerk the economic benefit.   

It does not appear from the facts presented that an economic benefit would be bestowed on the City of Pleasanton as it is does not appear from the City records that the City of San Antonio enters into interlocal agreements and/or contracts with the City of Pleasanton. However, if the City of Pleasanton seeks to do business with the City for which Mr. Uresti is required to take official action as a District Chief in the San Antonio Fire Department, he must recuse himself immediately and disclose in writing to the City Clerk the conflict.  Moreover, he must notify his supervisor immediately of the conflict.  The supervisor may, if necessary, reassign the responsibility to another employee.

 Representation of Private Interests. Part B.  Section 5 of the Code addresses representation of private interests before the City.  This section prohibits a City employee from representing for compensation any group before the City.  Pursuant to this section, if, as the City Manager, Mr. Uresti must appear before the City of San Antonio, a violation of this section may be found.  Therefore, should Mr. Uresti serve as Pleasanton’s City Manager, he would not be permitted to appear before the City of San Antonio.  This prohibition extends to both appearances before elected city officials and city employees.

 Confidential Information.  All City employees are prohibited from using their position to obtain confidential information for purposes other than the performance of their duties and/or from intentionally or knowingly disclosing such information gained as a result of their position.  Therefore, Mr. Uresti must not divulge information confidential in nature, resulting from his position as a District Chief.

 Conflicting Outside Employment.  Generally, a City employee may not engage in outside employment, which may influence the performance of the employee’s official duties.  More specifically, “a City ... employee shall not provide services to an outside employer related to the . . . employee’s City duties.”  The essential job functions of a District Chief in the Fire Department are stated above.  These services do not appear to be related to the job requirements of the City Manager for the City of Pleasanton. 

Under the City Charter of the City of Pleasanton, the City Manager is responsible for the administration of the City’s affairs, including, but not limited to, its budget and personnel matters.  As long as the services Mr. Uresti provides as City Manager are not related to his duties as a District Chief in the Fire Department, there is no violation of this standard of conduct.  He must, however, comply with Section 2/4.18, Outside Jobs, of the Fire Department Rules and Regulations which requires him to obtain written approval from the Fire Chief to work outside the Fire Department prior to engaging in outside employment.

 Public Property and Resources.  Section 7 prohibits City employees from using “City facilities, personnel, equipment or supplies for private purposes.”  Mr. Uresti, therefore, must  not use City of San Antonio equipment or perform any work as City Manager on City of San Antonio  time.

SUMMARY

A City employee may serve as the City Manager for the City of Pleasanton. Because the position of a District Fire Chief is not a “civil office,” Article XVI, Section 40 of the Texas Constitution does not preclude Mr. Uresti from serving in both capacities.  However, as a City employee, he is subject to the Fire Department Rules and Regulations and the Ethics Code of the City of San Antonio. 

 Pursuant to said standards and Section 2/4.18, Mr. Uresti must obtain written approval from the Fire Chief prior to engaging in outside employment, employment which must not be related to his duties with the City, a requirement that Mr. Uresti has fulfilled.  Moreover, he must remain cognizant of the standards of conduct as provided in the Ethics Code, including, recusing himself and disclosing any potential conflict to the City Clerk and his supervisor should he be required to take official action on a matter involving the City of Pleasanton and refraining from using City equipment or time to perform said work.

FRANK J. GARZA

City Attorney