San Antonio Officials Mishandle the Mishandling of a Conflict Situation

According to <a href="http://www.mysanantonio.com/news/local_news/article/Regretful-DiGiovann…; target="”_blank”">an
article in the San Antonio <i>Express-News</i> this week</a>, San
Antonio's deputy city manager is concerned about whether he mishandled a conflict situation. It involved his
participation on a bid review committee for a $300 million contract
for an expansion to the city's convention center. While on the bid
review committee, he interviewed for and accepted a job with a
nonprofit whose focus is downtown development. The vice chair of the
nonprofit is the CEO of one of the companies bidding for the
expansion contract.<br>
<br>
What does an official do when he recognizes that he has mishandled a
conflict situation? What the deputy city manager decided to do was
write a letter to the city's Ethics Review Board (ERB) asking it to
determine whether he violated the city's ethics code. This was the
right thing to do.<br>
<br>

What is wrong is that city officials, including the mayor, the city
manager, and the city attorney, have all been giving their opinions about
what he should have done and whether he is in violation of the ethics code. And, of course, they're
saying he was not in violation. This is wrong. The ERB should make
its decision without having to worry about what high-level officials
believe should be done.<br>
<br>
This is especially true of the city attorney who, wrongly, is the
city's Ethics Compliance Officer, charged with giving ethics advice
to city officials and employees. It's bad enough that a city
attorney fills this position rather than an independent individual
appointed by the ERB. It is even worse when the city attorney speaks out
about a matter when it is too late for him to provide such advice, when his role in the matter is over.
The ERB should not be influenced privately or publicly by the city
attorney.<br>
<br>
The basic problem here is that none of the top officials seem to
have had ethics training, including the Ethics Compliance Officer,
who apparently said that there was no violation because the deputy
city manager was not negotiating for a job with a bidder, even
though he <i>was</i> negotiating with the owner of a bidder. This opinion is not
consistent with the ethics code's basic conflict of interest
provision:<blockquote>

Section 2-43 Conflicts of Interest<br>
(a) </strong>General Rule. To avoid the appearance and risk of
impropriety, a city official or employee shall not take any
official action that he or she knows is likely to affect the
economic interests of: ...<br>
<br>(9) </strong>a person or business entity with whom,
within the past twelve months:<br>
<br>
(A)</strong> the official or employee, or his or her
spouse, directly or indirectly has<br>
<br>
        (i)</strong>
solicited an offer of employment for which the application is
still pending</blockquote>

In other words, an official should withdraw from participation in
any action that may economically benefit someone he is seeking a
job from. Through his role as a bidder's CEO, the employer's
vice chair, who was involved in the job negotiations, clearly could benefit from the deputy city manager's
involvement on the bid review committee. Undoubtedly, this particular situation was not foreseen in the drafting of this provision. But the fact that the phrase "directly or indirectly" appears, as well as the emphasis on the appearance of impropriety, makes it hard to say that this situation should not require withdrawal.<br>
<br>
It wasn't only the city attorney who misspoke. The mayor spoke about the deputy city manager's intent. In San Antonio, intent is relevant not to whether a violation existed, but only to the penalty for a violation.<br>
<br>
Even the deputy city manager erred in saying that he should have
sought advice from the ERB before sitting on the bid review
committee. According to the ethics code, he should have sought
advice from the city attorney, who would apparently have told him
to sit on the committee, even though this was the wrong thing to
do.<br>
<br>
And the fact that the deputy city manager did not immediately ask for advice, and that no one suggested he ask for advice, shows that officials have not been sufficiently trained to seek advice when there is any question about handling a possible conflict situation. The ERB website has no advisory opinions from the ERB for over three years, and no advisory opinions from the city attorney for two years. This is terrible for a city the size of San Antonio (it's the seventh-biggest city in the U.S.). What is even more terrible is that there does not appear to be a provision for informal ethics advice.<br>
<br>
An ethics program that has apparently done such a poor job of
training not only the highest officials in the city, but even the
Ethics Compliance Officer, needs a lot of work. The ERB and the
council need to take a fresh look at the program's training,
advice, disclosure, and enforcement, with a special emphasis on
the program's independence from high-level officials and the hiring of an independent ethics officer who will train and provide informal and formal ethics advice.<br>
<br>
Right now,
high-level officials seem to think they are the ones whose opinions count, whether
they are based on the ethics code or not. This needs to end. A city the size of San Antonio deserves an independent, comprehensive ethics program to prevent the mishandling of conflict situations.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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