Ethics Advisory Opinion No. 43
April 26, 2000
Issued By:
City Attorney’s Office
Whether
the employer of a member of the San Antonio Local Development Company who is
also a former member of the Citizen Advisory Action Board may submit a bid for
the private process service contract with the San Antonio Police Department.
A
member of the San Antonio Local Development Company who is also a former member
of the Citizen Advisory Action Board has asked whether his employer may submit a
bid for the private process service contract with the San Antonio Police
Department. The following facts are
presented:
The
City of San Antonio issued a formal invitation for bids for an annual contract
for private process service. Under
this contract, the vendor will provide services of notification of civil suits
filed pursuant to the Asset Seizure Laws. Defendants
in such suits are required to be notified by citation that a suit in which
property may be forfeited is pending.
The
employer of a member of a City board is interested in submitting a bid for this
contract. The member does not have
a financial interest in the company seeking to submit its bid, but is an
employee of the company. He is
currently a member of the San Antonio Local Development Company (SALDC) and is a
former member of the Citizen Action Advisory Board.
The
SALDC is a corporation comprised of 33 members. It is responsible for, among other things, the issuance of
Small Business Administration 504 Loans. The
Citizen Action Advisory Board (CAAB) is comprised of six (6) members and is part
of the Police Chief’s Advisory Action Board. The CAAB presides over disciplinary cases involving
non-criminal investigations of misconduct by police officers. The issue is whether, under the City of San Antonio Ethics
Code, the employer of this individual may submit a bid for private process
service with the City given his position on the SALDC and his former position on
the CAAB.
Part
A, Section 2 of the Code defines a City official to include members of the SALDC,
and defines a former City official as one whose city duties terminate on or
after January 1, 1999. As both a
current and former city official, the individual is required to follow the
applicable standards of conduct set forth in the Code.
Standards
of Conduct governing Current City Officials.
Improper
Economic Benefit.
As a general rule, a City official may not take any official action that
is likely to have an effect on his economic interest or the economic interest of
his employer that is distinguishable from its effect on a substantial segment of
the public. If such occurs, the City official is under a duty to recuse
himself and disclose, in writing, to the City Clerk the economic benefit.
Given
the facts above, it is unlikely that a matter regarding the contract would come
before the SALDC. However, should
it occur, the individual is required to disclose the potential conflict to the
City Clerk and recuse himself from any further participation in the matter.
Unfair
Advancement of Private Interests.
Part B, Section 2 of the Code prohibits all City officials from using
their position “to unfairly advance or
impede private interests, or to grant or secure, or attempt to grant or secure,
for any person [ ] any form of special consideration, treatment, exemption, or
advantage beyond that which is lawfully available to other persons.”
Under this section, the individual may not use his position as a City
official to advance the interests of his employer or give the impression of
such. Failure to abide by this
standard of conduct is a violation of the Ethics Code and subject to the
penalties therein.
Representation
of Private Interests. Part
B, Section 5 of the Code addresses representation of private interests and
includes those issues brought forth by a member of a board before the City.
Section 5(a) states:
“A
city official . . . who is a member of a board . . . shall not represent any
person, group or entity:
1.
before that board or body;
2.
before city staff having responsibility for making
recommendation to, or taking any action on behalf of, that board or body, unless
that board or body is only advisory in nature; or
3.
before a board or other city body which has
appellate jurisdiction over the board or body of which the city official or
employee is a member, if any issue relates to the official’s or employee’s
duties.”
Under
section 5(a), the individual may not represent his employer before the SALDC or
before the City Council on a matter that relates to his board duties.
The individual may, however, represent his employer before other boards
and commissions and other city bodies if the issue does not relate to his duties
on the SALDC.
Prohibited
Financial Interest in Contract. Part B,
Section 10 prohibits City officers from having a financial interest in a
contract with the City or its agencies. Under
this section, a City officer includes, among others, “members
of any board or commission which is more than advisory in function.”
Because the SALDC is advisory in nature, its members are not City
officers, and, therefore, this section does not apply.
Standards
of Conduct for Former City Officials.
Former
City officials are required to abide by three (3) standards of conduct
regarding: (1) continuing confidentiality; (2) subsequent representation; and
(3) interests in discretionary contracts. Continuing
confidentiality is not at issue in the facts presented and the other two (2)
standards are discussed in detail below.
Subsequent
representation. Part C, Section 2(a) of the Code prohibits a
former City official from representing anyone for a period of two (2) years
before the City board or commission on which he sat, before city staff providing
support to said board or commission unless the board is advisory in nature, or
before City Council if the issue relates to his former duties. It further prohibits a former City employee from implying
that he is able to influence City action as a result of his former position.
Under
the facts presented, the individual could not represent his employer before the
CAAB or before the City Council on a matter relating to his former duties for
two (2) years from the date his membership on the CAAB expired.
He may, however, appear before City staff providing support to the CAAB,
as the CAAB is advisory in nature. Should
his employer be selected and should he be employed to provided the services
under the contract, he may interact with city staff in the Police Department in
providing these services.
Financial
interest in Discretionary Contract or Sale.
Part C, Section 3 of the Code prohibits former City officials from having a
financial interest in a contract with the City or its agencies, including SAWS.
Under this section, a former City official is defined as any person who, prior
to termination of official duties, was a member of a board or commission that is
more than advisory in nature. Here
again, the CAAB is an advisory board, and, therefore, the individual is not a
former city officer as that term is defined for the purposes of this section.
As such, it does not apply.
SUMMARY
The
employer of a member of the San Antonio Local Development Corporation who is
also a former member of the Citizen Advisory Action Board may submit a bid for
the annual contract for private process service. The member should, however, remain cognizant of both the
standards governing current city officials and former city officials, including,
but not limited to, refraining from using his position with the City to acquire
said contract.
FRANK
J. GARZA
City Attorney