Ethics Advisory Opinion No.  40

February 8, 2000

Issued By: City Attorney’s Office

Whether the Chairperson of the Planning Commission must recuse himself from participating in a matter involving real property set to come before the Commission.

The Chairperson of the Planning Commission has asked whether he must recuse himself from participating in a matter involving real property set to come before the Commission.  The following facts are presented:

 The Planning Commission is scheduled to meet on February 9, 2000, at which time, the Commission will vote on various matters, including the Consent Agenda.  Item 8 of the Consent Agenda requires the Commission’s approval to amend a plat for real property owned by a limited partnership in which the Chairperson’s employer is the general partner.  Robert Wandrisco, the Planning Commission Chairperson, states that, in the previous year, he received more than 10% of his gross income from the employer.

 The issue is whether Mr. Wandrisco may vote on the matter given his position on the Commission and his employment.  Under Chapter 171 of the Texas Local Government Code and the Ethics Code of the City of San Antonio, a member of the Planning Commission is an “official” as that term is used in each.  As an official, Mr. Wandrisco is required to follow the standards of conduct set forth in both the state statute and the Code.

Section 171.003 of the Local Government Code prohibits an official from knowingly participating in a matter if action on the matter will have a special economic effect on the business entity in which the official has a substantial interest.  An official has a substantial interest in a business entity if, in the previous year, he receives more than 10% or more of his gross income from the entity.  Moreover, the action must have a special economic effect on the business entity.

To that end, the Attorney General has stated that the language of Section 171.004(a)(1), requiring an official to file an affidavit where conflict exists, “is broadly written and does not require that the business entity have a direct interest in the matter.  It only requires that the action on the matter have a special economic effect on the business entity.”  Op. Tex. Att’y Gen. No. DM-309 (1994).  If the official’s action may have such an effect, he should err on the side of avoiding a conflict of interest and complete an affidavit stating the nature and extent of the interest with the official recordkeeper of the governmental entity.  Failure to knowingly file an affidavit is a criminal offense.

The City’s Ethics Code reiterates this standard of conduct, stating a City official 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.  The economic interest must be one that is distinguishable from the effect on the public in general.  Should such occur, the City official 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. 

In the instant case, a matter before the Planning Commission involves the employer of the Chairperson, Mr. Wandrisco.  He states that, as chairperson, he only votes in the case of a tie, or, if needed, for the required five affirmative votes pursuant to the Rules and Regulations of the Planning Commission.  Moreover, the matter in question is on the consent agenda, an agenda that usually does not require a vote by the Chairperson.  Whether the vote on the matter will substantially affect the economic interests of his employer is a fact question and one which cannot be determined given the information received.  Arguably, the purpose in amending a plat is to benefit the owner of the property, who in this case is the limited partnership.  Given that the Chairperson received more than 10% of his gross income from the general partner of this limited partnership and his position on the Commission, he should recuse and disclose the matter to the City Clerk, in writing, thereby avoiding any question of a conflict. 

SUMMARY

A Commission member must abide by the standards as set forth in Chapter 171 of the Local Government Code and the Ethics Code, including recusal and disclosure should he be required to take official action on a matter that may confer an economic benefit distinguishable from the public in general on his outside employer.  As Chairperson of the Planning Commission, Mr. Robert Wandrisco presides over the meeting, including the Consent Agenda.  Although matters on the Consent Agenda do not usually require the Chairperson’s vote, arguably the possibility exists that he may be called upon to vote for a matter involving the economic interest of his employer.  This fact, coupled with the economic effect conferred on his employer as a result of amending the plat, requires the Chairperson to recuse and disclose the matter to the City Clerk’s Office.

FRANK J. GARZA

City Attorney