Ethics
Advisory Opinion No. 31
August
23, 1999
Issued
By: City Attorney’s Office
Whether a member of the zoning commission may accept employment with a political consultant for the Spurs.
A member of the Zoning Commission has asked
whether she may accept employment with a political consultant for the Spurs.
The following facts are presented:
A political consultant has been hired by the
Spurs for the November 2nd arena referendum. A member of the Zoning
Commission has been offered employment with the political consultant to help
organize the Spurs campaign. Her duties will include, among others, posting
signs and organizing the November 2nd vote. She may also man a
potential Northside office for such endeavors should an office be established.
The issue is whether, under the City of
Improper Economic Benefit. As a general rule, a City official may not take any
official action that is likely to have an effect on her economic interest or
the economic interest of her 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 herself and disclose, in writing, to the City
Clerk the economic benefit.
Given the facts above, it is unlikely that a
matter regarding the political consultant or the Spurs would come before the
Zoning Commission. However, should it occur, the Commissioner is required to
disclose the potential conflict to the City Clerk and recuse herself from any
further participation in the matter.
Unfair Advancement of Private Interests. Part B. Section 2 of the Code[2] 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 Commissioner may not use her position as a City official to
advance the interests of the political consultant and/or the Spurs 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[3] addresses
representation of private interests and includes those issues brought forth by
a member of a board before the City. Section 5(a)[4]
states:
"A city official . . . who is a member of a board . . . shall not represent any person, group or entity:
- before that board or body;
- before city staff having responsibility for
making recommendation to, or taking any action on behalf of, that board
or body; or
- 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)[5],
the Commissioner may not represent the political consultant and/or the Spurs
before the Zoning Commission or City staff that provides support to the Zoning
Commission or before the City Council on a matter that came before the Zoning
Commission. The Commissioner may, however, represent the political consultant
and/ or the Spurs before other boards and commissions and city staff as long as
the staff contacted does not provide support to the Zoning Commission.
Prohibited Financial Interest in Contract. Part B, Section 10[6] 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."
The Zoning Commission is such a commission, and therefore, the member is a City
officer.
To be in violation of this section, the City
officer must have a financial interest in a contract with the City. In order
for the Commissioner to have a financial interest, she must own 10% or more of
the voting stock or shares of the political consulting business or own 10% or
more of the fair market value of the business. Because she would be an employee
of the political consultant, she would not own the requisite amount necessary
to violate this section of the Code.
SUMMARY
Members of the Zoning Commission must abide
by the standards as set forth in the Ethics Code. Pursuant to such standards, a
Commissioner must recuse herself and disclose any economic benefits to her or
her employer that are distinguishable from the public in general. Provided she
abide by such standards, a Commissioner may accept employment with a political
consultant who has been hired by the Spurs to organize the vote for the
November 2nd arena referendum.
FRANK J. GARZA
City Attorney