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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Honorable mayor and members of the city council
FROM: Debra A. Drayovitch, City Atto':ney
SUBJECT! conflict of interest for Board Members
DATE: December 71 1990
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At the last council meeting, councilmember Alexander asked me to
prepare a complete briefing regarding the issue of conflict of
interest for members of city boards and co.nm.issions. A brief
j history of developments in this regard follows;
i In March of 1989, Denise Harpool, Purchasing Buyer, realized that
some City boardmembers were accepting work from the city and
submitted a request for a legal "ruling on the eligibility of any
i ! board or committee member to be a vendor/contractor of the City of
Denton." Attached as Exhibit "A" is a copy of the opinion I
prepared in response to her request. Upon receipt of this opinion,
f John McGrane sent every boardmember a copy of the opinion, together
with a memo. A copy of John's memo is attached as Exhibit "B".
In the summer of 1989, the council. considered this subject at a
work session. Jesus Nava presented options for the council's
consideration, as outlined in his memo of June 16, 1989, a copy of
which is attached as Exhibit "C". You considered these options at
your council meeting of June 20, 1989 and determined to,
(1) Leave the boards as they currently were,
(2) Enlarge the selection pool of potential appointees,
(3) Advise the members of the boards that they could bid on
a city contract but must resign if they received the
contract,
(4) Rotate members for only two year termsf and
(5) Publish a news release by the Mayor to seek
additional volunteers.
Despite this consensus, Mr. Mulroy continued to write the City
letters indicating he felt he could continue to serve as a board
member when working for the City. When he was the low bidder, hi.s
bide were accepted and the purch4ssing department wrote him that
upon accepting the bid, he was resigning his position as a board
member. However, I do not know if the Mayor or any councilmembers
ever advised him that continuing to accept work would result in his
removal from office.
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Honorable m 'ior and Members of the City Council
December 7, 1990
Page 2
in March, 1990, Mayor Stephens scheduled a meeting with members of
the various code boards. At the meeting, he and I explained the
city charter provision regarding conflict of interest for city
officers and ho charged the boards with making a recommendation as
to whether they should change the board structure to allow the met and
1 board members to contract with the City. T Board to Jackie ing considered these alternatives. Evidently, decided that they
Doyle's memo, attached as Exhibit "D", they
preferred to take no immediate action except for the Electric Code
Board of Appeals.
Couneilmember Alexander has requested that I summarize the history
of the conflict of interest issuadis roof de you ,t to enforce
available to the council. One option ard that
section 14.04 of the city charter, and advise o b she has resigned
upon knowingly accepting work from the City,
as a board member. If the boardmember refuses to resign, the Mayor
and councilmembers shall remove him from office. In the i
alternative, you still have available the other options Jesus
presented to you, namely:
1. Make all boards and commissions advisory in
nature, with the exception of the Civil Service
Commission and the Board of Adjustment. If their
role were to become advisory, then their members
would not be considered officers of the city
within the context of Section 14.04 of the city {
term into
charter, and would therefor be able h it enter
their
contracts with the city during
office. as final
2. dLeave the ecision-making boards and but commissions s the number
and/or tenure of membership in ointerest
lessen n the he probability
situations.
While you are considering this subject, I recommend that you may
wish to consider directing me to prepare an ordinance which
provides that a boardmember shall not appear before the board of
a acceptable
which he a member a The q uestion of whether item iwash
practice arose when I gave abriWayne on legal slues anotherto the
Building Code Board of Appeals. Allen board
member advised that they might have to appear onbehalfeoBf arclient
to present a request for a variance or an appeal to a.
wanted to know whether it was legal for them to discuss and vote on
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Honorable Mayor and members of the city Council
December 7, 1990
Page 3
the rcquests. Attached as Exhibit "E" is a draft of a memorandum
Joe has prepared in response to this request, along with a copy of I
a memo that former City Attorney C.J. Taylor wrote on the same
subject several years ago. To enact a regulation providing that a
board member shall not represent himself before the board would
alleviate any uncertainty about the question. Should you have any
questions relative to this matter, please advise.
Respectfully submitted,
Debra A. Drayovitch
DADSlkh
Attachments
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xct Lloyd V. Harrell, City Manager
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i~ O bIA
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Denise Manning, Purchasing Buyer
FROM: Debra Adami Drayovitch, City Attorney
SUBJECT; Legal Opinion No. 89-03
i 1 Whether City Board and Commission Members May Enter
Into Contracts With The City
DATE: April 20, 1989
in your request of March 30, 1989, you have requested "a ruling
on the eligibility of any board or committee member to be a
vendor/contractor for the City of Denton. Basically, you ask
{ whether city board and commission members are eligibly to be
awarded bids on city projects. If a board member submitted the
low bid for a particular project to sell goods or services to the
city pursuant to a contract. Section 14.04 of the Chaser of the
City of Denton reads as £ollowt.
Section 14.04. Personal Interest. '
No officer or employee of the City of Denton shall
have a financial interest, direct or indirect, in
any contract with the city, or be financially
interested, directly or indirectly, in the sale to
j or by the City of any land, materials, supplies or 1
services, except on behalf of the City as an officer
I or employee. Any willful violation of this section
shall constitute malfeasance in office, and any
officer or emeployse guilty thereof shall forfeit his
office or position.
The Texas courts have had several occasions to discuss charter
provistona similar to 02ection1 14.04. In city of Edinbur v.
Ellis, 5~P S.W.2d 99 (Tex. Comm n. App. 1933) tie court scussa
Me general rule that municipal contracts in which officers or
employees have a personal pecuniary interest are void as against
public policy. In Delta Electric Construction Company v. Cie of
San Antonio, 437 S.W, 20 602 ex. v. pp* an non o ,
wrd- n.r.e.) the court considered a contract between the
city and a member of the city'a electrical board and held it was
against public policy and void. The court reached this decision
even though the contract was for worS. in the water department and
the
the lelectrical dno vote on the award of the contracto
water department and had
Denise Manning
April 20, 1989
Page 2
The court in Delta Electric discussed whether a member of the San
Antonio Electrical oar was an officer and, after much
discussion, concluded lie was. The San Antonio Charter provision,
~ust as that of the Denton Charter, does not define the ter4,
'officer". The Supreme Court of Texas, in Kimbrou h v, Barnett,
93 Tex. 301, 55 S.W. 120 approved the follow ng e n t on o an
office:
The term office is defined by Mr. Mechem, in
his work on Public Officers (section 1),
thus: 'Public office is the right, authority
and duty created and conferred by law, by
which, for a given period, either fixed by
law, or enduring at the pleasure of the
creating power, an individual is interested
with some portion of the sovereign junctions
of the government, to be exercised by him for
the benefit of the public. The correctness
of this definition is nowhere questioned, so
far as we know, and it is useless to add
supporting authorities.
The Delta Court, in reaching its conclusion relied on the
follow-wing facts:
(1) The Electrical Board was created by
ordinance of the city;
(2) The Board Members are appointed by the
City Council upon recommendation of the
city Manager;
(3) The Board passes upon the qualifications
of all applicants for certificates of
electrical licenses;
(4) The Board may review all decisions of the
` Chief Electrical Inapeoator and his
assistants;
(5) The Board may alter, amend, or revoke
actions or decisions of the inspectors;
(6) The board has the power to suspend or
revoke the certificate or licensee of
persons found guilty of certain practices,;
(7) The members of the board serve for a fixed
term of office; and
Denise Manning
April 20, 1989 '
Page 3
(8) Members of the board take an oath of
office and receive a fixed compensation.
Tho court concluded that the Electrical Board "performs and sovereign
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functions of the city for the benefit of the public, thus
its members constitute officers of the city. The fact that the
officer (the Electrical Board member) did not influence in any
way the the award contact was contract vold. was held to not be determinative of
whether
Applying the definition set forth in Delta Electric, those
persons serving on boards and commissions of " the City Ti Denton
which serve purely in an advisory capacity and do not exercise
any sovereign power are not, in the opinion of the undersigned,
officers within the context of Section 14.04 of the Charter and
may enter into contracts with the city during their term of
office. Those boards and commissions are as follows:
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Library Board
i Airport Advisory Board
Citizens Traffic Safety Support Commission
Human Resources Committee
Parks and Recreation Board
Community Development Block Grant Committee
Members of the following boards and commissions perform as
officers of thr city:
Electrical Code Board
Board of Adjustment
LJ Building Code Board
Civil Service Commission
Plumbing and Mechanical Code Board
Planning and Zoning Commission
Therefore, a member of an of these boards and commissions would
' to willfully tenter into a ~oconG act with the city during his term
of office.
e ra am ayov
DAD/lh
cc: Mayor Ray Stephens
City Council Members
Lloyd V. Harrell
33031
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CITY o{pENTON, TFXAS MUNICIPAL 9UILDING DENTON, TEXAS 76201
TELEPHONE (817) 566.6
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MHM9AANDOM }
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DATEt April 26, 1989
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All Board and Commission Members i
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FRONt John F. ycGrans,
Executive Director of Finance
SU&JECTt CONTRACTS WITH THH CITY
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Attached is a copy of a legal opinion from the city Attorney's office
addressing the issue of whether city Board and Commission members may enter
into contkacts with the Clty. As
14.04 of the Charter deals with personal eInta[est" the legal opinion, Section
" or employee Of the City of Denton shall hays financialt interest, directly or and tes that
indireotly, with any contract with the City, ' ono officer
The opinion also cites case law which addresses the definition of officers of
cities, The City Attorney states that, in her opinior;, Section 14,04 of t
Charter does not include those persons that serve puroly in an advisory
Capacity and do not exercise any sovereign he
continue to purchase goods and/or services from these Individuals, heThistwould
include members of the following Boards and Commissional
o Tice Library Board
o The Human Resources Comsittee o Airport Advisory Board
o citisena Traffic safety Support Commission Parka i Recreation aoard
o Comsunity Development Block Grant Committee
However, the City Attorney does feel that members of the following Boards and
Commissions perform acts as officers of the City and would come under the
context of Section 140042
o The Electrical Code Boacd
o The Building Code Board o The Board of ACommissio mnt
o Planning and Zoning Commission o C ivil Service
o Plumbing i Mechanical anianica al Board
~r7~R~.,w.r.•~ - r _ T ..,-~.,5-- v W- - --r --,1 .--mow---
Memo to Board and Commission Members S
April 26, 1989
Page 2
The administrative staff in sympathetic with the problem and the potential
confltct that exists between having good qualified board members and receiving
lowest and best bids from its vendors, The staff has communicated this to
City Council and the subject is currently under 'review. Hopefully, the
Council will be able to implement a system that would help mitigate any
effects of Section 14.04. However, until ouch time that official action can
be taken either through Council action or a change in the section of the City
Charter, we must follow tL* advice of our City Attorney and the Chart_er_ of the
City ofi Denton which requires that Board and Commission members which can
exercise sovereign power and perform as officeri of the City shall not be able
to sell goods. or perform services to the City of Denton,
Should have any questions, or if you would like to discuss this memo in
further detailr please feel free to contact me at 566••8320.
J n plcQrane
J?Mc Os a!
✓ Attachment
cot Lloyd V. Harrell, City Manager
mayor and members of the City Council
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4469?
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Gate: June 16, 1989
To: Lloyd V. Harrell, City Manager
From: Jesus Nava •Jr., Assistant to the City Manaqer
Sub.iect: CONFLICT OF INTEREST WITH BOARDS AND COMMISSIONS
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John McGrane, Debra Eirayovitch, and I have discussed the ongainq
problem of decision making board and commission members being y
ineliqible to be awarded contracts. The following alternatives may
assist us in solving this matter.
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ALTERNATIVES
1. Male all boards and commissions advisory in nature,
with the exception of the Civil Service Commission and
the board of AdJustment. If their role became
advisory then their members would not be considered
officers of the City, !vithin the context of Section
14.o4 of the City Charter, and would therefore be able
to enter into contracts with the city during their term
i of office.
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Ordinance changes would be required to make the boards and commissions
advisory. However, there would be a neqative impact. The City
Council would be responsible for any and all appeals to decisions made
by the boards and commissions.
2. Leavp the boards and commissions as final
decision-making bodies, but reduce the number and/or
tenure of their membership in order to lessen the
probability of conflict of interest situations.
Reducing the memhership and/or tenure of boards and commissions would
lessen the need to appoint as many professionals and would thereby
increase the number of contractors that would be eligible to bid for
City business. Currently, the technical boards have 7 members
(Electrical Code, Building Code, and Plumbing and Mechanical). These
technical code boards present the greatest problem and reducing their
membership may help.
Changes in membership and tenure would also require changes in
ordinances. The negative impact of shortening the current tenure of
members would be having to make appointments mare frequently. In
addition, this action could make it more difficult to obtain a quorum.
3. Leave the boards and commissions as they are and
concentrate on enforcement of Section 14.44 of the City
Charter, "Personal Interest".
Under this option, staff would inform board and commission members of
the Municipal Code requirements and request that they complete
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Conflict of Interest Statements. The statements would require that
each appointee, as an officer of the City, disclose his or her
financial interests, direct and indirect, in any and all contracts
with the City. These statements would then be shared with the
Purchasing Department who would check them to avoid conflict of
interest situations.
r Attached is a memo from Debra giving a legal opinion an whether city
boards and commission members may enter into contracts with the city.
It represents our official position an the matter.
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If additional information is needed, please contact me.
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ccs John McGrane, Finance Director
Debra Drayovitch, City Attorney
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JAA
C1 o>I06M70N, TEXAS MUNICIPAL BUILDING Y DENTON, TEXAS 76201 / TELEPHONE (817) 566-8200
MhMORANDUM
DATE: June 290 1990
TO: Deborah Drayovitch, City Attorney
FROM., Jackie Doyle, Building Official
SUBJECT: Conflict of Interest regarding Board members
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1. Building Code Board's recommendation is to leave law
as presently written.
2, Plumbing and Mechanical Code Board's recommendation
I is to leave law as is until charter is amended and
then change law.
3. The hlectricai Code Board suggests that boards have
seven members made up oftthr a ex-officio
members and four noncontr
contractors would provide input, but would have no
vote, and the four noncontractor members would be
voting members (need an additional number of voting
members).
Sorry this is late and very brief, but I wanted to get thee
basic information to you. If you need more information, plea!
let me know.
e
Build ngoOfficial
,J~yN291996 '
0013S
CITY OF OP` '
LEGAL "eT.
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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
To: Wayne Allen, Building Code Board
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FROM. Joe D. Morris, Assistant City Attorney !
SUBJECT: Officials Representing Clients Before a Board
DATE: November 28, 1990
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You ask whether a member of the Building code Board may appear
1 before the Board to represent a client requesting a variance. For
the following reasons, we believe a public official may not
lawfully represent a client before a board of which the member
sits.
Members of the Building Code Board of Appeals are public officials
of the City. A public office is a public trust which imposes upon
the officer the performance of certain duties for the common good.
Those duties are fiduciary in character. The official is under an
obligation to serve the public with the highest fidelity and
undivided loyalty. It requires the officer to subordinate his own
private or personal interest when necessary to avoid a conflict. f
The authorities generally agree that these settled principles
I prevent a board member from representing a private party before the
board of which he is a member;
f it is the duty of public officials to refrain from
I outside activities which interfere with the proper
discharge of their duties. . . . And an officer cannot
lawfully act as the agent of one person where the private
agency will come in conflict with his official duties.
To act Per one of the parties imposes an interest adverse
to the other.
63 AM. JUR. 2d Public officials and Employe@s § 321.
If you have any questions or comments about this matter, please
call at your convenience.
J D. Morris
JDM/lkh
cc: Lloyd V. Harrell, city Manager
beb
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T rte. 1w-
~WV~
uITY OF DENTON, TEXAS
OFFICE OF THE CITY ATTORNEY
VLVORANDUM
C.J. Taylor, Jr., City Attorney
Joe D. Worris, Assistant City Attorney
Robert B. Hunter, Assistant City Attorney
DATE: July 19, 1983
TO: G. Chris Hartung, City Manager
FROM: C. J. Taylor, Jr., City Attorney
I
` SUBJECT: 0 inion NO. 346
Whether a member of the Planning and Zoning
Commission may represent clients before the
Commission i
I am in receipt of your memorandum dated July 15, 1983 wherein you
%I state that a member of the Planning and Zoning Commission, whose
occupation is velated to land development, recently presented a
zoning change request to the Commission on behalf of his client. I
You further state that the Commission member announced he had a
conflict of interest, left his seat, joined the audience, and
addressed the Commission on behalf of his client. You add that the
member also prepared the site plan which accompanied the zoning
request. You ask whether these facts may constitute a possible
conflict of interest.
It is a fundamental rule of law that`a public official is not
eligible to participate in a matter which affects his personal
pecuniary interest. Hager v. State ex rel. TeVault, 446 S.W.2d 43,
49 (Tex.Civ.App.--Beaumont, 19090 writ re ti, n.r.e.). In
recognition of this rule, it is generally held that a municipal
officer may be prohibited from representing private interests before
certain governmental agencies, using confidential information
acquired during his public tenure for personal gain and accepting
employment, either, during the course of his public duties or for a
specified period thereafter, which will require or induce the
officer to disclose confidential information or information not
available to thus public generally. Rhyne, The Law of Local
Go!lernment Operations, 1980 Ed., p. 156. Recognizing -that broad,
ars rulings relating to adverse interests may discourage qualified
persons from serving as public officers, the courts have tended to
determine the issue on a case by case basis, depending on the par-
ticular set of facts involved. Lever, the overwhelming majority
of cases have found a conflict of interest to exist where the public
official has a business relationship with an interested party
ti. Chris Hartung
July 19, 1983
Page 2
concerning the subject matter. before the same agency, board, or
commission of which the official is a member. 10 ALR3d 694,
Disqualification for Bias or interest of Administrative Officer
Sitting in Zoning Proceeding.
Once it is found that a public official has a conflict of interest,
the courts may void the action taken and hold that any action
tainted by the participation of' an officer having an adverse
interest is invalid even though the vote of the interested officer
was not determinative of the result. Rhyne, supra, at 157. Even
where the officer casts no vote at all, the courts have found that
such officer's participation in the proceedings invalidated the
action on the basis of the "mutual backscratching" theory, because "
of the possibility that the official would be in a position to trade
E favors with other officials. Sands and Libonati, Loc.Govt,Law
Section 11.10, For example, in -T Ott VI. H- ewell, 22 NJ Super
106, 91 A2d 667 (1952), the Court voided a zoning proceeding because
a member had sold the subject property to the petitioner and
participated in the discussion. Even though the vote of the
disqualified member was not necessary to the action taken, the Court
observed that the member's participation in the discussion may have
influenced the opinion of the other members and thus have cast
suspicion on the impartiality of the decision. Similarly, the Court
P nullified a zoning decision in Bove v. Board of Review, 185 A2d 751
(1962,R1) where the Chairman disqualified himself and abstained from
voting .because of a conflict of interest (he had represented the
{ petitioners in similar real estate matters in the past), yet
continued to participate in the discussion.
I In view of the foregoing, it is the opinion of this office that a
Planning and Zoning Commission member who has been retained by a `
client to perform work on any part of the subject matter pertaining
to the business of the Commission must not: only announce such con-
'flict and disqualify himself from voting, but must refrain from any
participation at every stage of the proceeding. To avoid any
charges that the proceedings were tainted by such conflict, the
safest practice would be for such member to leave the room during
the proceedings'. Of course, the City Council has the authority, by
ordinance, to prohibit any members of the various city boards and
commissions from accepting any employment or representing any
clients in connection with any matters which are before such boards
and commissions.
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C. J 4LJ
TJR:jcs
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xc: Mayor and City Council
Planning and Zoning Commission
Jeff Meyer
v
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AVI t
.3 3 MECHANICAL, INC.
7 hlecwvllcaf F WilostwIf (lolMwclors
N T ACrL A000120C
aApril 24, 1990
city of Denton
901-B Texas street
Denton, Texas 76201
ATTENTION: MR. TOM SHAW
Dear Tom,
This firm is in receipt of Purchase Order PC 96262 from your
office with amended paragraph referencing my Plumbing Board
membership (attached).
Please be advised that I was a duly appiinted Boai:d Member
prior to your issuance of subject Purchase Order and several
others in the past.
{ If the City feels its conflict of interest opinion is truly
valid and enforceable, it is questioned why the City continues is
contract with Board Members. It appears as if the
fearful of its own policy making,
Concerning this particular contract it is curious to note
that without this firm's low bid the City would be paying almost
three times the cost to an out of town contractor. }
Perhaps after a year of dellberation it should not be too
optimistic to expect a resolution in the near future.
B the way, when is the last time that you know o/f someone
a consenting to major surgery without a second doctor's opinion?
Yours very truly,
CBS MECHANICAL, INO,
Joseph S, Mulroy
President
JSM/mmk APRZ 61990
or,: city Council
Board Members
Richard Hayes C" orn~„To
City Manager ti~GAL N
%,-c.ity Attorney
5001 WEST UNIVERSITY ORWE OENTON, TEXAS 76201 (817)381.7568 MEr140(214)434-1
Ull,
i tisa`s
~ MAY 2
I~
May 22, 1989 MECHANICAL, INC.
C l
CITY
Mechanical 8 Wdu,lrlal ConlraclorS `FACLA000720C
city of Denton 1
901-B Texas Street
Denton, Texas 76201
ATTENTION: DENISE MANNINO
Dear Ms. Manning:
This Eiza is in receipt of G1tY 1989eletterurregazd~n9 emY
#PC 90734 and 90735 and your May l7, i
appointment on the Mechanical Board.
It is my understanding that the city council will soonlmeel
to resolve the issues recently brought forth by your
dpartmen. To avoid o activetparticipationp(abstain from lvoting) iuntil sthe matteraIs
n
resolved.
Please be reminded that my appointment was by the City
Council at the rerommendatlon of the Mayor, at a time when this
firm was conducting business as usual with the City. It is only
sensible that if the auspices under which I serve have been
changed by the Council, then it would be incumbent upon the
Council to rescind my appointment
issuefto be considered by
of are the matters
this npoint
their n zetime aolution there
in
the Council
+ 1. If the legal opinion is applied as written, whom from
i the active local business citizenry can the council call
upon to repzesent both the community and industry
standards?
2. How far does the legal opinion extend? Shall those who
are employed by or. contract with the City be forced to
disp^se of their securityiholdings or resign boaroaita,
s at inst that £undinghor business intanysmanasr7er(o ive city p
3. Does this legal opinion suggest that the integrity of
' previous Board activities are in question?
As you may well knov, provisions are already in force
to excuse individual members from participating in
Board action whenever a potential conflict of interest
exists. If there is a spocific complaint that this
policy is not strictly adhered to, then that would
appear to be the issue, rather thanfthe overall
integrity of the many city Boards' ioning.
8001 WEST UNlVENS17YDRfVE DENTON, TEXAS 78101 (817)387.7588 METRO (211) ,SA•11
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y, If the recent opinion is applied a without lotthat
x n it stand up 9
consideration 0 ill
reaching legal :asai flcations7
11 tha Clt:y Council WIhe gsensible ieve due nslbls dappl
I trust ication of the
matter and offe guidlncl:has t he ves:y aea~c future.
recent legal opinion
Yours very trulYr
C88-HoCRAMICALP INC.
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oseph S. Mulroy
president
f JOK/mm5
t ce% Mayor Ray Stephens
Hugh Ayer
Bob GOrtor►
Randall BOYd
Linnie HcAdams
1 Jane Hopkins
Jim Alexander Inspector
Jackie D*YIe, Chief Buildl,rsg
George Becker
Richard cooper
Bob Sullivan
JOEL Peploe -
Pete Nock.-
-Bill Burley at Law
Richard Hayes, Attorney
'E
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City of Denton City Council Minutes
June 26, 1989
Page 2
4. The Council discussed the City of Denton Boards and
Commissions relative to regulations governing conflicts of
interest.
Jesus Nava, Assistant to the City Manager, reviewed three
alternatives to the governing of conflicts of interest; (1)
make all the boards/commissions advisory - Council. would then
have to review all the recommendations from those boards, (2) i
leave the boards/commissions as final decision making but
reduce the number of members and tenure of the boards - this
would require ordinance changes for those affected boards and
would probably result in more frequent appointments with
possible difficulties obtaining a quorum, (3) leave the boards/
commissions as they presently are but have stricter enforcement
of the Cr>de of Ordinances currently governing conflicts of
j interest. The boards presenting the most problems were the
Building Code board, the Electrical Code Board, and the
Plumbing and Mechanical Code Board.
Council Member McAdams suggested a notice be published in the
newspaper requesting volunteers for certain boards such as the
Plumbing and Mechanical Board, Building Code Board and
Electrical Code Board, if there were no responses to the
notice, then look at other alternatives.
Council, Member Boyd agreed with Council Member McAdams to
enlarge the selection pool and to possibly make the boards more
advisory in nature rather than final decision making.
Council Member Hopkins did not wish to leave the boards as they
were because there appeared to be such a conflict existing with
those boards,
Council Member Gorton stated that he felt those three boards
could be made advisory because he did not see the volume of
requests that the Council would have to deal with.
Council Member Boyd suggested contacting professional agencies
to locate more people. Some individuals may not work in Denton
but would be licensed to be appointed to the boards.
Mayor Pro Tem Ayer suggested reducing the members of the
Plumbing and Mechanical Code Board plus enlarging the selection
pool,
Debra Drayovitch, City Attorney, stated that the members of the
mentioned boards could bid on contracts but must resign if they
were awarded the contract.
City of Denton City Council Minutes
June 20, 1989
Page 3
il was (1) leave the boards as they
Consensus of the Counc potential
currently were, (2) enlarge the selection pool of ust resign if they received
appointees, (3) advise the members of the boards that they
could bid on a city contract but m two year terms and
the ctt rotate to seek additional
(5) publish
volunteers.
The Council convened into Executive Session to discuss
5 Lincolnwood vs. Cit
legal matters (discussed in re. Flow and appo n men s
estate, and per-"'s eT oar
of Denton), real all City of Denton Boards and
cons dered appointments to
commissions). ~
to the Regular Session at 7:00 p.m.
The Council then convened in
in the Council Chambers.
r Pro Tem Ayer) Council Members Alexander,
PRESENT: Mayo Boyd, Gorton, Hopkins and McAdams.
ABSENT; Mayor Stephens
f received a presentation of awards for
l The Council er Recycling Contest and
winners of the City of Denton Newspaper
Yard of the Month. art of !I
Cecile Carson, Administrative Analyst, stated that as p
? the efforts to compete in thementeandrsolidh waste,~ttheaCityaof
j to be aware of littenewspapers• Pioneer Paper Stock agreed to
Denton was recycling contest.
help sponsor a recycling made the
Jack Lina, Plant Manager-Pioneer Paper stock, y
{ presentations to the following individuals:
4th Place - Alpha Lambda Delta - $50
3rd Place - Phi Chi Theta - $75
2nd Place - Preceptor Theta Chi - $150
1st Place - Grace Temple Baptist church - $300
Lena stated that 400 tons of newspaper had been col de ted i0
Denton during the last year and that the City receiye $12t
for that paper.
Carson then pr Eddie dandh Martha Harding E, Hh & awards Lindene
and Joan Lair,
and Gera Mace.
l
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CITY OF DENTON
AFFIRMATION OF QUALIFICATIONS A
A r1
As a duly appointed member of the Board of Adjustment of the City of Denton,
1
Texas, I have taken the prescribed oath of office. i
I also hereby affirm that:
(1) I am a qualified voter of the Cityr
(2) I am not in arrears in the payment of any taxes or other liabilities due
the city) Financial interests, direct or indirect in
(3) I do not and shall not have any materials, supplies of
any contracts job, work service of anywiland,1e City, or be interested
in the sale to or by the City ~
equipment) and term, I understand It shall
felony during my
(4 ) constitute cause convicted cremoval.
1 if I shall be the above qualifications, I also have been made aware of
in addition to meeting provides:
III (Rules and procedures before
section 1-44, Article which Fissions) o
i Chapter 1 of the Code of ordinances of the City f Denton,, Tex
Quotum. A quorum for the transaction of business of a board shall be a
majority of the members appointed to said board.
Voting Requited. No attending member of a board shall be excused or shall
abstain from voting on any matter before the ointerest'hish invvoted•is where such
required except where a board member's , such member shall announce such interest
enter
member's personal interest is involved,
at the commencement odefate ondauchimatter and shallsabstaineErom mvoting a thllerenoton.
i into discussion
financials interest,
could have a does affects then member*' sin
A member beshall be fore considered to
r.oci
any matter
or those of a business with which the member is asated• called and scheduled
Absentee. All board members shall attend all regularly board
unecused at
the
meetings of the board of which he is a member. The
andx scheduled n at meetings
fifty of (50)
member from more than three (3) regularly called board of which he is a member in any one year or lack of attendance
the
the mors familygillnesseeor ndeath) shall yearbe consideredh"causer" ass that
percent of
result of personal
term is used the City Council from such board~tY of Denton, 1959, foe
removal
, 19
Dated this day of J
signature
a Examples of situations where a board member has a personal interest include, but
are not limited tot ownership of real or personal ptopetty which is the subject
of a board delibeerration, an interest in the form of ownership, or In the receipt
C
services or dividends from a business which has a matter before for
of salarYr
board. If a relative within the first or second degree of affinity
office Anytime
mayy exalso ist,exist,
InterestInterest
a board member has s~oncerned interest, that a a personal personal
a of
board m
the City Attorney should be consulted.
2654a
x
: t
- - \
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CITY OF DENTON
STATEMENT OF PERSONAL
AND FINANCIAL INTERESTS
Personal and Financial IntereatlOwie.ng A peSrsoannalOffind
Texas, i hereby disclose the fol
eof Denton,
acefirnaofncithe i
alCinttyrests within
the City of Denton:
Employer:
Ownership of Business and/or, Properties:
i
Otherec
Dated this day of
Signature -
1
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2654s
i
i
LEGAL ISSUES:
AN OVERVIEW FOR MEMBERS OF CITY BOARDS AND COMMISSIONS y
Powers and Duties
1
Conflicts of Interest
Open Meetings
Personal Liability
J Criminal Misconduct
Prepared by:
Joe D. Morris
Assistant City Attorney
City of Denton
July 23, 1990
E
the Civil Service Commission, the City of Denton has
Includ og
fourteen permanent boards, committees, or commissions, The mem-
mmissions serve voluntarily without com-
rs of those boards and co
bepensation, unselfishly giving of their time for the interest of the
community. We have prepared this paper in the hope of assisting
board members by reviewing some legal issues relevant to your
duties.
er will address: (1) the creation of boards and the
ap
This p
conflicts of interest; (3) the require-
f extent of their powers (z)
ments for open meetings; (4) the personal liability of board
the laws involving criminal misconduct. For
members; and (5)
convenience, we will refer to all administrative bodies as boards.
We have attached copies of the cited provisions of state law for
t
your reference.
creation and Powers of Boards
` All permanent boards of the City are creatures of state law,
the City charter, or an ordinance or resolution. The law creating
a board establishes the number of members, their qualifications to
serve, the terms of office, and the board's powers and duties. A
owers conferred upon it by the act
board may, only exercise those p
As a board member, you have no individual authority
' creating it.
separate from that of the boards you can only act as a board. In
order to properly perform your duties you must know the extent of
When you are appointed
your delegated duties and powers. you
should receive the following!
W
4
N
3
1. A opY of the act (i.e., the state law, City charter, or
City ordinance or resolution) which establishes the board on which
you serve and sets forth it general powers and duties.
2. A copy of Article III of Chapter I of the City Code of
ordinances which sets the general rules and procedures for all City
boards and commissions. d
f
3. A copy of any written rules or procedures adopted by the
;
board on which you serve. Some, but not all boards, have adopted
rules govern'ig the procedures for conducting their meetings, ~
1
~ 4, Finally, and most importantly, a copy of the adopted
regulations or ordinances over which the board has jurisdiction.
You should generally be familiar with the regulations or ordinances
or a keep a copy with you for reference at your meetings.
k Boards may generally be divided into two types: boards that
i
exercise the sovereign (governmental) functions of the government
and boards that perform strictly advisory functions. Boards do not
have any legislative or law-making authority themselves; all
legislative powers are reserved to the City Council. City policies
are established by the Council through its legislative enactments,
usually in the form of local laws, called ordinances. In order to
carry out those policies, boards are established and delegated the
power to administer those ordinances. These delegated powers are
often called judicial or quasi-judicial powers. The following
boards generally perform judicial or quasi-judicial functions by
administering particular ordinances or regulations:
Building Code Board (Uniform Building Code)
Page 2
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Board oT Adjustment (Zoning Ordinance)
Civil Service Commission (State Laws and Regulations of
Police & Fire Departmeiits)
Electrical Code Board (Uniform Electrical Code)
Historical Landmark Commission (Historic Landmark
Preservation Ordinance)
Planning and Zoning Commission (Subdivision Regulations)
Plumbing and Mechanical Code Board (Uniform Plumbing Code ,
and Mechanical Code)
Boards that exercise quasi-judicial powers apply particular
regulations to specific facts to make judgments or decisions on
matters within their jurisdiction. However, in rf,:ar.ing those
r decisions, they do not have
unbridled discretion. Board members
are constrained by the ordinances adopted for their guidance. Even
if a board doubts the wisdom of a regulation, the member cannot
f
legally ignore the regulation. The adoption of the regulation was
a legislative function by the Y governing body. A board that
ignores the regulation or attempts to determine anew the wisdom of
the regulation illegally usurps the legislative function of the
city council. It is the board's legal duty to carry out the
adopted policy by applying the rules or regulations to particular
facts to make a decision.
Advisory boards are exactly what the name implies. They
advise or make recommendations to a person, another board, or the
City Council. They have not been delegated any of the sovereign
functions of the government and have, no final decision-making
authority. The following boards are advisory boards;
Page 3
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Library board
Airport Advisory Board
Public Utilities Board
Citizens Traffic. Safety support Commission
Human Services Committee
Parks and Recreation Board
Community Development Block Grant committee
i Cable TV Advisory Board
! i
Data Processing Advisory Board
The distinction between boards that exercise sovereign powers
and advisory boards is important. First, the former are subject
to the State's opening meetings law, while the latter are not.
members of boards that exercise governmental powers are
Second,
public officials of the City because they perform official acts on
behalf of the city and may, in limited cases, be held personally
liable for those acts. The State's open meetings law and the lia-
bility of public officials will be discussed below,
open Meeting Requirements
A. charter or Ordinance Requirements
All meetings of boards must comply with the requirements of
's charter, for
the charter or ordinance creating them. The city
ustmAnt and
example, requires that all meetings of the Board of Adj the meetings of the Public Utilities Board be open to the public-
The charter requirements control regardless of whether the board
Page 4
. ,4
closed meetings for
allowing
to the state law legally hold
would be subject these boards can never certain matters. Therefore,
closed meetings for any purpose-
Texas open meetings Aat the Texas ~
B I
commonly referred to as boards
state statute, ll
There is a the meetings of a
Which applies to Ths
open Meetings Act, 6252 17, V'T.C.S). I
strictly advisory tarticle should
Ac discuss and
whicf, are not
that public officials Public
based on the notion utinyr so that the li t is b scr
Public business under public
their public officials are
vote on to know what
ortunity contains criminal
will have the opP that the act
~ You should remember
doing of the Acto
penalties for violations
e under tine Act. the
Sotice Of Meeting City staff to post
1•
j h most boards rely on aware that it
Althouq u should be
comply with
for board meetingsr YO
appropriate notice which does not
to participate in a meeting the Act
is unlawful of the Act. All boards cover
the notice requirements rior to the meeting
2 hours p
an agenda at least 7 agenda
must post This means that the subject of the meeting which the board
describing the item of public business
should describe each
or take action. failure to
to discuss of posted agendas is the
intends
one frequent defect before the board.
matter coming
describe particular Erom the
adequately a agenda purpose bee of posting an
The sufficiency
perspective of the general public. The
page 5
I
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agenda is -o give notice to the public of what subjects will be
considered by a board and what action, if any, will be taken at the
1
meeting.
A board cannot take any action for which proper notice has not
been given. A board may always do less than what the agenda
indicates is to be done, but never more. For example, if an item
is merely posted for "discussion", the board cannot take action by d
voting on the matter discussed. However, if a matter i.s posted for
discussion and voting, the board may do either, both, or none.
The Act does have an exception to the 72 hour posting
requirement for "emergency" items or items involving "urgent public
necessity". Despite wishful thinking to the contrary, an emergency
does not occur simply because someone forgot to put something on
the pjsted agenda. An "emergency" or "urgent public necessity" is
limited to "imminent threats to public health and safety" or
"reasonably unforeseeable situations requiring immediate action by
i
the governmental, body." If you have to ask whether an item is an
emergency or not, it probably isn't. Suffice it to say that most
boards will rarely have any matter that qualifies for the emergency
exception. If an emergency item is added, the notice shall clearly
identify the emergency or urgent public necessity.
A public meeting, as required by the Act is not the same as a
public hearing. The Open Meetings Act does not mean that the
public has to be allowed to speak at a meeting. it merely insures
that all. meetings and discussions, except in limited circumstances,
will be "open" for the public to attend, listen, and observe. A
Page 6
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public hearing means public comment will he received from those
wishing to speak on the subject matter posted for a public hearing.
The board may determine when public comment is to be allowed on a
particular matter, except when another law or ordinance requires
the board to hold a public hearing. In any case, the board can
determine the manner in which the public hearing will be held.
Hoards sometimes invite those present to continent on a matter
I ~
on the agenda which was not posted as a "public hearing." Although
it would seem laudatory to invite comment on matters before the
board from those present, a person who relies on the posted agenda
i
l to determine whether to attend for the purpose of making comments,
r may be misled by the practice. Although this procedure may not
clearly violate the Open Meetings Act, we would recommend that
boards consider following a policy that will allow the staff to
f
indicate on the posted agenda when persons in attendance may be
heard. If a board is always willing to listen to those attending
on any matter before the hoard, it would be simple enough to post
notice of that fact on every agenda.
2. closed meetings.
If your board is not an advisory board, the open meetings
act requires you to post an agenda giving advance notice of the
meeting and to have an open meeting at which the public may hear
all discussion, unless the Act allows the matter to be discussed in
The idea behind the Act is that the public has
a closed meeting.
a right to complete access to the processes of the government,
except when a discussion of the issue would pose potential harm or
Page 7
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prejudice tez--tb.e entity. (We emphasize the "entity" because it is
the City's interest that is at issue - The member's individual
preferences or circumstances are immaterial.)
Generally, most exceptions of the Act allowing closed sessions
would not apply to most board matters. A few boards may have
reason to utilize the exception for discussions involving the
purchase, exchange, lease or value of real property, but even then
they may do so only if an open discussions would prejudice the
negotiating position of the governmental body. A closed session
may only be used for discussion of thk,.mattart the board must still
make the final decision or vote on the matter in an open meeting.
Where the Act allows a closed meeting, the notice requirements
of the Act also apply to the closed session. The posted agenda
should reasonably inform the public of the subjects to be discussed
in the closed session. There are several other requirements that
apply to closed meetings. if you are absolutely sure a closed
meeting of the board is necessary, we suggest you consult this
i
office prior to posting the notice.
Conflicts of Interest.
A conflict of interest exists when a public official is
presented with a matter for consideration in which the official has
some personal interest that has the potential of influencing the
official in the exercise of independent judgment. Conflicts of
interest may be divided into two categories, statutory and common
law. The first involves conflicts that are defined by statutes the
Page 8
second are *nflicts that have been defined by court decision.
Hoard members are currently subject to provisions regulating
conflicts of interest under state law and the city's charter.
A. State LAW.
Chapter 171 of the Local Government Code applies to all
public officials of local governmental entities, including board
members, who exercise . ,asponsibilities beyond those that are
advisory in nature." The law makes it unlawful for a local
government official to "participate in a vote or decision on a ,
matter involving a business entity or real property in which the
official has a substantial interest if it is reasonably foreseeable
that an action on the matter would confer an economic benefit on
the business entity."
A person has a substantial interest in a business entit~y if:
! (1) the person owns to percent or more of the voting stock or
shares or owns $5,000 or more of the fair market value of
i
the business entity; or
(2) funds r_ zived by the person from the business entity `
exceed 10 percent of the person's gross income for the
previous year.
A person has a substantial interest in real property if the
interest is an equitable or le4al ownership with a fair market
' value of $2,500 or more.
If an official or any person related to the official in the
first degree of affinity (by marriage) or consanguinity (by blood)
does have a substantial interest in a business entity or real
Page 9
4
or real property comes
that entity
property ana matter involving the official must do
I before the board on which the official serves,
two things- First, the official must, prior to the board voting on
Secretary stating the
the matter, file an affidavit with the city secretary
nature and extent of the official's interest. The City
has those forms available for that purpose-
Secondly, the official must abstain from voting on the matter
~ (1) in the case of a substantial interest in a b4Sine39
?.ht t t the action on the matter will have a special
that is
economic effect an the business entity
blic
distinguishable from the effect on the pus or
i
(2) in the case of a substantial interest ink
pro ert it is reasonably foreseeable that an
special economic
action on the matter will have a distinguish-
; F roperty,
effect on the value of the p
able from its effect on the public*
section
prohibitions cf Chapter 1711
in addition to the p prohibitions for
212.017 of the same Code provides almost identical p
lots of subdivided
any official involved in the consideration of p person has a
land. You will note that under this section, a
"substantial interest" in a subdivided trac~heptractt or
(1) the person acts as a developer
stack or shares Of
(2) owns ten percent or more of the voting
a business entity that acts as a developer of the tracts
or
page 10
t
(3) own§ ten percent or more of the fair market value of a
business entity that acts as a developer of the tractf or
(4) owns $5,000.00 or more of the fair market value of a
business entity that acts as a developer of the tract.
i
B. Charter Provision.
Section 14.04 of the City Charter reads as follows:
I
1 No officer or employee of the City of Denton shall
have a financial interest, direct or indirect, in
any contract with the city, or be financially
interested, directly or indirectly, in the sale to
or by the city of any land, materials, supplies or
service, except on behalf of the city as an officer
l or employee. Any wilful violation of this section
shall constitute malfeasance in office, and any
officer or employee guilty thereof shall forfeit his
office.
This provision is based on the common law doctrine that
municipal contracts in which officers have a pecuniary interest are
void. The object of the rule is to insure to the government the
strict fidelity on the part of those who represent and manage the
affairs of government. The prohibition goes beyond the state law,
J because it is not based on any quantification of an interest in a
business or property.
This does not mean that a public official cannot have any
contract with the City. All officials who receive city utilities
have a contract with the city, but they do not receive any benefit
from those contracts beyond the benefit received by all utility
customers. The common law doctrine prohibits an official from
having an interest in any contract with the city in which the
F.I -s 11
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official rea4ives a direct or indirect benefit. It does not matter
that the official is nqt in the position to influence the awarding 1
or making of the contract.
Questions of conflicts of interest have so many potential
variables that they must be determined on a case-by-case basis.
The important point to recognize as a member of a board is whether
a particular situation raises a potential conflict of interest. If
i
you are not sure, you should consult one of the attorneys in our
I
office.
1 Finally, when a conflict does exist, we suggest you leave the
room while the matter is being discussed. This procedure, which is
i followed by the City Council, allows the other members to freely
discuss and vote on the matter without being influenced by the
presence of a member who has a personal interest in the matter.
Personal Liability
Personal liability is often a subject of concern by members or
j prospective members of boards. Generally, the question of personal
liability applies only to public officials. Members of advisory
boards generally cannot be held liable because they do not carry
out any governmental action. The concern about personal liability
is generally exaggerated. All boards (other than the civil service
commission) a_e charged with the responsibility of making decisions
based on the written provisions of an ordinance. You will not be
held personally liable for any decision you make as a board member
if you do one thing - follow and apply the written ordinances you
have been charged with administering.
Page 12
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1.
The re Faon for this is simple. Generally, an official is only
exposed to personal liability for acts he knew or should have known
were illegal or unconstitutional. The ordinances you are applying
and admini.;tering has been reviewed by an attorney. An official
may rely on that review to shield himself or herself from {
liability. A public official who follows the written ordinances
that are established to guide the official's discretion will not be !
I
held liable for a decision. However, a board member who makes
decisions on criteria other than the ordinances adopted for the
official's quittance, does so at his or her own risk.
l
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Criminal Misconduct
1
There are a number of state penal laws that prohibit acts
which improperly influence public employees. Two of the more
pertinent statutes concern bribery and gifts. Bribery occurs when
someone confers a benefit upon a public employee or official in
j
return for an official's decision or act. The law prohibiting
gifts is similar to bribery, except the prohibited benefit is
conferred without regard to any particular decision or act.
A bribe or gift can be anything that could "reasonably be
regarded as economic gain or economic advantage". For example, we
were once asked if it would be illegal for councilmembers to accept
a helicopter ride from a petitioner of a zoning change for the sole
purpose of inspecting the property in question. The ride would be
legal so long as it was given solely for that purpose, because the
councilmembers received no economic advantage or gain.
Page 13
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HoweveFO assume the
~ petitioner had promised a councilmember a
helicopter ride to Aruba if the member would vote for the zoning
change. Clearly, that would be bribery since the petitioner would
be offering a benefit in exchange for the vote. Again, assume the
same petitioner offered the same councilmember the same ride
without discussing how the courcilmember should vote. If the offor
is made because of the councilmember's official status, then it j
could be a violation of the gift statute, because the member
I
received an economic benefit. The same would be true if the
1 helicopter ride had been given to a spouse of a councilmember
because bribery includes conferring a benefit on the official or
"any other person in whom the beneficiary is interested."
What about gifts from friends or a token Christmas gift from
some person who frequently appears before your board? 3ach
i
situat.`.on must be addressed on it par'cicular facts. The law has
I
several exceptions and nuances that we will not attempt to address.
one simple way to approach the issue is to ask yourself the
following question if you are offered a "gift". would the gift be
offered if I were not a public official? If you cannot definitely
answer "yes" to that question, we recommend you not accept the
gift.
Page 14
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SUBTITLE C. MATTERS AFFECTING PUBLIC OFFI-
CERS AND EMPLOYEES OF MORE THAN ONE
TYPE OF LOCAL GOVERNMENT i
CHAPTER 171. REGULATION OF CONFLICTS OF INTER.
EST OF OFFICERS OF MUNICIPALITIES, COUNTIES,
AND CERTAIN OTHER LOCAL GOVERNMENT,,14
section
171.001, Deflnltlons,
171.002: Substantial Interest In Business Entity,
171.003, Prohibited Acts; Penalty,. „
171.004, Affldavit Required,
171.003, Contract Authorized,
17 LOW. Voting on Budget.
` 17L007, No Limitation on Common Law Remedies.
171-008. Effect of Violation of Chapter.
Library Remo"
Municipal Corporation 4-231(3),
CSS. Municipal Corporation 1991.
WESTLAW Eledmok ttwarch
See WF TUW Electronle Research Guldafoll"ns the Preface.
171.001, 1kifiWtlons
See, also, italfClted material following text of thiS section
In this chapter,
(1) "Local public official" means a member of the governing body or
another officer, whether elected, appointed, paid, or unpaid, of any district
(including a school district), county, municipality, precinct, central appmis-
J al district, transit authority or district, or other local governtaental entity
who exercises responsibilltles beyond those that are advtsory In nature,
(2) "Business entity" means a sole proprietorship, partnership, firm, cor
poration, holding company, joint-stock company, receiversldp, trust, or any
other entity rmognlzed by law,
Acts 1957, 70th Leg., ch. 149, ! 1, off, Sept, 1, 1987,
An mditimi by Acts 1997, 7tltlt Us, ch. 659, 9 3
V.T.C.A. Covernmatt Cod's, § 311,031(e) protddes, to pan, that the
read of a statute by, a code does not aj ect an am:endment of the
sttatsutte by the sane legUlature which enacted the code and that the
amendment is preserved and given effect as part of the code provlsfon.
Section 3 of Acts 1987, 70th Leg„ ch. 659, amends subd I of § 1 of
Vernon !t Ann,Civ,St. art. 988b (now, this sectionf without reference to
303
I
§ 171.00E OFFICERS k EMPLOYEES--,GENERALLY
This a
ths_repeal o said article by Acts 1987, 70th Leg., eh, 149, §49(l), As
saomend subd. I of § I reads;
"'Local ublie official' means a member of the governing body or
another o~ficer, whether elected or appointed paid or unpaid, of any
district (including a school distn'ct), county, city, precinct, central
appraisal district, transit authority or district, or outer local govern.
mental entity who exercises resrnsibilides beyond those that are
advisory in nature, but does not include a board member of a higher
education authority created under Chapter 53, Education Code, unless
a vote, act, or participation by the board member as to the of fairs of a
' higher education authority would provide a financial benefit to a
financial institution, school, college, or university constituting a source
of income to the board member or being a business entity in which the
board member has an interest distinguishable from financial benefit '
available to any other like financial institution or other scliool, college,
or university whose students are el Is for a student loan available
under Chapter 53, Education Code.'
Htaerleal Noss
Prior Um
Acts 1981, 681h Lea., p. 4079, ch, 649, 1 1.
Vemon's Inn.Clv,St, an. 9886, 0 1.
f 171.9911 Abstsaw interest is RVAIaees Loft
d:(a) For i ,:aw of this chapter, a person hu a substsetisi iafrewt in a besleue entity
(1) the person owns 10 percent or coon of the voting stock or sham of the bushreu
entity or ow= either 10 percent or more or $5,000 or more of the fair tnatket value of
the business entity; or
(2) funds rroeived by the paws from the buineas entity exceed io pueent of the
person's ;roes iaoome for the previotu year,
(b) A person has a substantial Interest in rat property if the interest is sn equitable or
14941 owtserebip with a fair market value of x2,500 or more,
(c) A local public offldal is ootnklersd to here a substantial Interest unda this sectba
If a PeMM mated to the of kW in the first do" by eoasanplaity or aqh* hu a
substantial iota" undo this ucdom
Amended by Acts 190, 71st Leg, rh. 1, 00(4) Off, Aeg, 21, 19M,
1 171.914. Pns►"W Ac* Fsaahy'
(a) A loew puhl)e official commits an offense if the Official kaoahs91y:
(1) Tioiatu Section 171,004; j
(2) aft as surety for a business entity that has work, business, or a e ntreet wiW *
goresnes ew ea ityi or
(8) seta as surety on any official bond ragWM of an offloer of the 9orernm"W
entity,
(b) An of a" under this section Is a Close A misdemeanor,
Amaded b7 Ads 19M, 71st Lee, ek 1, } WA off. Aug, era, 19M.
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I 171."4. Affidavit ant Aboteadoa Prow Voting Repiret
(a) If a local pabbe official has a substantial interest to a baaiaw entity or to real Yl
( fate offfetal shall Me, before a vote or decision on any matter involving the
b or the areal m tart property, as affidavit stating the eaters and eared of the
torest parddpadon in the matter iC
(1) to the ease of a eubatandal Interest In a business entity the actin on the matter
will bete a special economic effect on the business entity that is dkdnguishabb from ~
the tiled on the publk; or
(2) to tha dross of a substantial intarest in real property, it is rumnaby foreseeable
that an action on the matter will have a special economic effect on the valw of the
property, distinguishable from Its effect on the pubde.
(b) The affidavit must be Mod with the official record keeps of the governmental
entity,
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(c) If a IocW public off clai is required to file and does fib an affidavit under Subsection
(a), the official Is not required to abstain from &rther participation in the matter
requiring the affidavit if a majority of the members of the governmental en of which
the official is a member Is composed of persons who are likewise required to~ asd who
do file affWavits of similar interests on the same official aedon, I
Amended by Acts 190, 71st Leg., do, 1, d 40(a), eft Aug, 23, 1890,
§ 171,098 Vot110g on 8104904
budW item spped ~ lfeally body of a to contract entity witth a names entity which a member
of the governing body has a substantial intesast
(b) Except se provided by Seetiou 111.004(c), the affected member may cot parddpttte
in that separate vote. The member may vote on a final budget if
(1) the member has complied with this chapter; aid
(2) the matter in which the member is concerned has been m0hlo .
Renumbered tmm } 111.009 and amosdod by Acts 19", 71st Lag., dL 1, § 18(0), WE Aug, 1, 119,
II
§ 171.96L tf,1d ed of Vlolatlaa of Cmser
The fbrdin g by a court of a vbbadon under this chapter doe not render an action of the
governing body voidable unlm the measure that was the mbjeet of an aedw brvolvisg A
conflict d interest woaid not have psased the gom%4 body without the vote of the
person who doisted the ehapter.
Renumbered Cram t 17.0" by Act 190, 71st Lg., do. L § 40(aX cif Aug. 29, 190.
§ 17L"7. Common Low lotwe}ted; Canalattve of Magi lpal Protisienr
(a) 'ibis ehapter preempts the common law of confbet of intesasfs as appliid to local
pubbie ofHeiais.
(b) This chapter is eamala** of municipal charter provisions and munkipai ordinances
donning said prohibiting conflicts of interests.
Ameadsd by Arts 190, 71st leg., ck 1, ! 40(A off, Aug, 39, 190,
§ 171.04, R xu ~ as § 171A" by Acto 1"0, 71st Lag, da 1, § We), WE Aum
§ 171.00, Servlm o. Heard of Corporsdon for to Compeasatlon
It shall be lawful for a local public official to save as a member of the board of
directors of priwte, nonprofit corporations when such officials receive no compensation or
other remuneration from the nonprofit corporation or other nonprofk entity.
Added by Arta 190, 71st Leg„ eh 416, d 2 off. Aug. 28, 19%.
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. T. Q.A. , LOCAL GOVERNXENT CODh2 §212-017
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¢ 213.017. C=Md of later"k l'aahty
(a) In this aeetio% " $WxbvkW tna" Means a tmad of land, as a wbohe, that is
subdivided. The term does oft ms" an isdlykhW lot to a suhdWAW tract d land.
(b) A puma has a subatantW interest in s subdivided trail if the peraw
(1) has an egWW)h or fusel owmmWp istareet bi the ttad wi& a fair OMW nloe e
j- of $$600 or mom
(2) seta ae a developer of the tract;
(3~ OWN i Ferant or Min of the V*tbs murk Or churns of or OWN tither 10
' mon or $6.000 or Mors of the fak market rake *(a buhww w► t, that
I (A) has w equitable or Is& owneyeb* jut~ la the anti WI& a hk swb*
value of $2.500 or more; or
M acts as a devehoper of the tut; or
(U reaim In A calendar year funds from a bnalness entity destsibed by 9ubdlviehoa
(3) that exceed 10 percent of the paeoa's Erm krooms for the provious pear.
(c) A person also is cwrsidwd to bare a substsatW interest in a enbdivkW area if the
the
unnder 10
firlt u Subsection (b1, his s as anbbsib atW lowut in the trs~ W asotbee person wbo,
(d) It a member of the municipal authority eesponeible for apprOving subetastW interest in a subdivided acct, the member @W fl* be o! is a rowordedews
nffwl hs2 the approval of ► plat for the tract, an affidavit statla2 the nature ad wtrat
of the Interest and shall abstain from further pwddpatioo in the matter. nw da&vk
must be tiled with the munkipah secretary or cWL ,
(e) A member of the musk4W authority responsible for pWs commits as
oKaw it the somber viobatM Snbsation (d). An o= under t subsectlos is a
Class A midemessor.
M The findlsff by a ooort of a violation of this ceetlon des MA reodsr voidable w }
action of the musicip►I authority responsible for ►app vms plats unless the messum
would Vat have pasted the municipal authority wfkhOnt the vote of the member who
violated this eectioa
Amended by Atw IM, net iK» ek ale, 1 3.01, off. Sept 1. 191e.
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I 8 PEli1tL t;OT36 (voRMOIA 1990)
Sl1 D PROVISIONe, Tls~
36AI grtbwy kncwingiY offers,
n comtr.its as offense If he lnuntlo"Uy or ens to accept
to confer on another, or solicits, accepm or aR
(a) A person
confers, or agr
,
from another, consideration for the recipient's decision. Opinion,
(1) any benefit of discretion as a public
reComrneAdation, vote, or other exercise
pa' official, or voter, recipiea is decision. vote, recom-
m cial or adminis'
benefit as consideration for the In a judi
(Z) ea any dation, or other exercise of °fficiai discretion
trative PrOc~ or ~
an benefit as consideration or a violation of a duty imposed by law
(3) blic servant or party official. this section that a person whom
on a Pu tion under
efense fl prosau not us! fled to act is iheJurisdiction (b) It U no d or
Influence WAS a ad office or he i~the thtoru~t he had not yet
whether benefit is not
for any other reaon+ tion under this section that the until niter
(o) It is no defense to prosecu benefit is not solicited of *Cc p
offered or conferred or that the ndation, vim, or other exercise of
(1) the derision, opinion, recomme
discretion has occ+urea' oc s to be a public servant,
(Z) the Public servant a felony of the second degW-
(d) An offense under this section is
hoses to Ma IurU i
Tnblle Sw"At by {unedoas or
um 4 he solicits,
36'~ Gilt servant In as agency Performing ts regulatory
(a) p ow or lnvesti ptions from a PersOA the Pub the serva public
conductir►g insP oa regula y ~ ion, or investigation by
a~pts, or agrees on, iv
Hers conttntts ao
knows to be su to servant or his Soucy,
to an Soucy having cust'Ody of Pris' t from • ~SOn or avrees to accept off
(b) A eenaa public
sot servant a' be to his In his MAody or the custody o his Wrk on
tigation
nt knows to Soucy carrying or crimi nal li
Agrees
(a) AA public servant in an be civil
sot iw accepts of t to ts an offes" if °Owni whom ~pba t wryhis agknows
eacY
beh ° , from a pion aiainst~ Pubes s , bauefit w"Pt any
don is Pending or Conteerciso by on with contracw
litigation
servant who'ice d pecuniary i In ons of govwnment
(d) A c a public or other any beneftt from
purchases. WY ats c Wicits, acctPw or aRe" to wow commits an offense if he s° at knows is inhere ~ or °trs
i nterested is any y likely to on involving
Public serv' n
person the contract, purchasei Payment,
the exercise of his discretion.
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(e) A
employedPik servant who has judicial or adn9&stradve authority, who is
by or in a tribunal having judicitl or administrative authority, or
who participates In the enforcement of the tribunal's dxision, commits an
offense If he solicits, accepts, or agrees to accept any beoef2t from a person
the public servant knows is interested In or likely to become interested In any
matter before the public servant or tribunal,
(f) A public servant who is a member of or employed by the IegWsture or
by an agency of the legislature commits an offense if be solicits, accep% or
agrees to accept any bene$t from any person.
(g) An offense under this section Is a Class A misdemesnor.
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36x09. tN[wdng Gift to lnWk mace
l (a) A person commits on, offense if he offers, confers,, or yra to confer
b ~bten~m on a public servant that he knows the public savant is prohibited &oxVdnM
(b) An offense under this section is a Clap A misdemeanor.
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! 39,01. Offfetal Noscoudaet {
(a) A public servant commits an offense if, with Intent to obtain a benefit
or with intent to harm another, he fateotiocaily or ,
(1) violates a law relating to his office or employtor
come into his plies any thing of value belonging to the government that has
moody or possession by virtue of his aHioe or fit,
(b) An offense under Subsection (axl) of this section Is a Clap A misda•
meanor.
(c) An offense under Subsection (a)E2) of this section It
(l) a Clap C misdemeanor If the value of the use of the thing misapplied
Is leas than 820,
(2) a Clap 9 misdemeanor if the value of the use of the thing misapplied
is 820 or more but less than 8200,
(3) a Class A. misdememw if the value of the use of the thing misapplied
is 8200 or more but less than 8730;
(4) a himsy of the third degree if the value of the use of the thing
miseppW Is 8790 or more but leas than $20,000, and
' (3) a Mony of the -IrM degree if the, value of the use of the thing
misappW is 324,000 or neon,
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3 39,03, Miwas of Off ew Information
(a) A public servant comralta an offense
w if, in reliance on Information to
which he
public, he:has access in his official capacity and which has not been made
,
(1) acquires or aids another to acquire a pecuniary Interest to any
Property, transaction, or enterprise that may be affected by the information:
or
(2) speculates or aids another to speculate on the bads of the iaforma-
don,
(b) A Plb& servant Who is a judge, *rdes,, btwR it a
I h*M Po*k or smpioyas Of as appsnW aoort esavaNs~ `
Inwffijily M the armor eattmt of a or ~ ANAWO *law "i6
or Ophdoi aeoa ,R" 7 protest uada siti0sbis
ae ar p~rt9+fant is
sv@WTM& of a y m
Pr~ a
its esisass as a *6 rseow, or aanoasienesot, to in psrkw at Wwr.4 1
basis.
(c) A person commits an offense if,
intent to harm with intent to obtain a benefit or with
another, he intentionally or knowingly sohdts or receives
from a public servant the result or content of a proposed or actual appellate
Judicial decision or opinion prior to the rendition of judgment, when the
Person knows that the content or result of such order or opinion has not been
disclosed to the opposing party or parties.
(d) An offense under this section is a felony of the third degree,
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