Ethics Advisory Opinion No. 44

May 2, 2000

Issued By:  City Attorney’s Office

Whether a member of the Planning Commission who is also a member of the Board of Appeals may serve on the Board of Trustees of the San Antonio Water System; and

If appointed, whether a conflict of interest exists where the engineering firm that is owned by the member’s brother and that employs his sister in law, a former SAWS employee, contracts with the SAWS.

A member of the Planning Commission who is also a member of the Board of Appeals has asked whether he may serve on the Board of Trustees of the San Antonio Water System.  If appointed, does a conflict of interest exist where the engineering firm that is owned by his brother and that employs his sister in law, a former SAWS employee, contracts with the SAWS?  The following facts are presented:

The Planning Commission, established pursuant to Section 117 of the San Antonio City Charter, acts as an advisory board to the City Council.  Among its duties, the Commission amends the master plan for the physical development of San Antonio.  The Board of Appeals, on the other hand, is established pursuant to the City Code.  The Board is authorized to, among other things, hear appeals regarding the application and interpretation of the building and fire code.

Michael W. Lackey was originally appointed to the Board of Appeals (“Board”) and to the Planning Commission (“Commission”) in 1994 and 1997, respectively.  He also serves on two advisory boards to the Commission, is chairman of the Land Development Services Committee, and is a member of the Unified Development Code Oversight Committee.  Mr. Lackey is interested in applying for a seat on the Board of Trustees of the San Antonio Water System (“SAWS”).

Currently, the SAWS is under contract regarding the O’Connor Road Project with River City Engineering, a firm solely owned by Mr. Lackey’s brother, Pat Lackey.  Although the work under the contract is complete, it remains open.  This contract was originally awarded in 1995 to Blackwell, Lackey & Associates, a firm in which Pat Lackey was a 50% owner and was later assigned to River City.  In March 2000, Pat Lackey’s wife, a former SAWS employee, began employment with River City.

The issues are:

1.      Whether a member of the Planning Commission who is also a member of the Board of Appeals may serve on the Board of Trustees of the San Antonio Water System; and

2.      If appointed, whether a conflict of interest exists where the engineering firm that is owned by his brother and that employs his sister in law, a former SAWS employee, contracts with the SAWS.

Each issue will be discussed below.

Issue One.  Whether a member of the Planning Commission who is also a member of the Board of Appeals may serve on the Board of Trustees of the San Antonio Water System.

Resolution No. 87-30-48, passed and approved by the City Council on June 18, 1987, sets the guidelines for the appointment of members to serve on the City’s Boards and Commissions.  Attachment I of the Resolution states “[e]ach citizen [is] limited to membership on two (2) Boards or Commissions at the same time . . . “  Given that Michael Lackey is a member of both the Planning Commission and the Board of Appeals, membership on the SAWS Board violates these guidelines and is prohibited.  Mr. Lackey has, however, indicated that, should he be appointed to the SAWS Board, he will resign as a member of the Planning Commission, an act necessary prior to such appointment.

Issue Two.  If appointed, whether a conflict of interest exists where the engineering firm that is owned by his brother and that employs his sister in law, a former SAWS employee, contracts with the SAWS.

Part A, Section 2 of the Code defines a City official to include all board and commission members appointed by the City Council.  As a city official, Mr. Lackey is required to follow the applicable standards of conduct set forth in the Code.[1]

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 a family member within the second degree that is distinguishable from its effect on a substantial segment of the public.  An individual within the second degree includes, but is not limited to, the member’s sibling.  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 existing contract between the SAWS and his brother’s engineering firm, it is probable that such a contractual relationship between the two entities will reoccur.  SAWS may still enter into the contract, but Mr. Lackey will be 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, Mr. Lackey may not use his position as a City official to advance the interests of his brother’s business 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.

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 Board of Appeals and the Planning Commissions are more than advisory in nature, Mr. Lackey is a City officer for the purposes of this section. 

To be in violation of this section, the officer must have a financial interest in a contract with the City.  A financial interest includes, but is not limited to, a contract in which the officer, the officer’s parent, child or spouse or a business entity in which any of those named owns 10% or more of the voting stock or shares or 10% or more of the fair market value of the business is a party to the contract.  Because Mr. Lackey does not have the requisite financial interest under the facts given, there is no violation of this section where the City or the SAWS contracts with River City Engineering.

SUMMARY

A member of the Planning Commission who is also a member of the Board of Appeals may serve on the San Antonio Water System Board of Trustees provided he resign one of the positions previously mentioned prior to serving on the SAWS Board.  Should be become appointed to the SAWS Board, he is required to follow the standards of conduct set forth in the City’s Ethics Code, including, but not limited to, recusing and disclosing a matter on which he is required to take official action that may affect the economic interests of his sibling’s business.

FRANK J. GARZA
City Attorney