Ethics Advisory Opinion No. 39
Issued By: City Attorney’s Office
uniformed City employee may serve as City Manager for the City of
A City employee in the Fire
Department has asked whether he may serve as the City Manager for the City of
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
The issue is whether, under
state law and the Ethics Code of the City of
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 18.104.22.168.9 of the Uniform Fire Code, amends the authority of the Fire Chief. Section 22.214.171.124.9 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. 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
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
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.
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
City Charter of the City of
Property and Resources. Section 7 prohibits City employees from using “City facilities, personnel, equipment or supplies for private
Mr. Uresti, therefore, must not
use City of
A City employee may serve
as the City Manager for the City of
Pursuant to said
standards and Section 2/.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
FRANK J. GARZA
1 Because a position as a District Chief in the Fire Department is not a “civil office” under Article XVI, Section 40, the issue of whether the position of City Manager is such an office is not addressed.
 Currently codified in Ethics Code Section 2-47
 Currently codified in Ethics Code Section 2-49