Loading...
HomeMy WebLinkAboutAndy Chesney Charter Review Commission Appointment Eligibility LtrJAMEB A. CRIBBS BOS McFARLAND PAUL F. WIENESKIE PAUL T. FRANCIS PAUL TOMME Mrs. Susan Crim, CMC City Secretary City of Euless 201 N. Ector Drive Euless, TX 76039 CRIBBS & McFARLAND A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 1000 WEST ABRAM P. O. BOX 13060 ARLINOTON/ TEXAS 76094-0060 October 19, 1994 D/FW METRO TEL: (BM 461-2000 TELECOPIER: (BI7) 275-7010 Rgceiv GOT 2 0 1994 City of Euless IN RE: Eligibility of Mr. Andy Chesney for Appointment to the Euless' Charter Review Commission Dear Ms. Crim: At its most recent meeting the Council appointed Mr. Andy Chesney, President of Euless Wrecker Service, Inc. as a member to the Euless' Charter Review Commission. Prior to that appointment inquiry was made of the undersigned regarding the eligibility of Mr. Chesney to serve upon such board. We verbally opined that he was not disqualified from such appointment and the Council at its last meeting appointed Mr. Chesney to such Commission. Request was made that such opinion be reduced to writing. The original inquiry was whether or not Mr. Chesney would have a conflict of interest in service upon the commission for the reason that a contract exists between the City of Euless and Euless Wrecker Service, Inc. of which Mr. Chesney is President for involuntary wrecker pulls initiated by the City and for storage of such vehicles. This contractrual relationship with the City of Euless and Euless Wrecker Service, Inc. has been in continuing existence since 1976. The principle inquiry was whether Mr. Chesney would have a conflict of interest under Chapter 171 of the Texas' Local Government Code. That chapter governs conflicts of interest of officers of municipalities and other governmental entities. The definition of a "Local public official" is a follows: "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 appraisal district, transit authority or district, or other local governmental entity who exercises responsibility beyond those that are advisory in nature." Ms. Susan Crim, CMC City of Euless October 19, 1994 Page 2 This section of the Local Government Code provides that a local public official has a conflict of interest if he or she has a substantial interest in a business entity or is related within certain degrees of consanguinity or affinity to a person who has a substantial interest in a business entity and an issue comes before such local public official for a vote or decision involving the business entity. The Code provides that where such conflict of interest exists, the local public official before a vote or decision on such matter involving the business entity must file an affidavit stating the nature and extent of the interest and thereafter abstain from further participation in the matter. We also understand that Mr. Chesney is related by marriage within the second degree of affinity to Councilman Bobby Baker. This degree of relationship is such as to bring into application the provisions of Chapter 171 of the Local Government Code as between Mr. Chesney and Mr. Baker. Because of these facts Mr. Baker, in the past, has abstained on any vote or decision of the Euless City Council in renewal or other matters appertaining to the City's contract with Euless Wrecker Service for the towing and storage of vehicles. It is noted that this statute in no wise prohibits a local public official from serving simply because a conflict of interest might occur with respect to a substantial interest in a business entity of the local public official or someone related to him but only requires a disclosure of such relationship and interest and the abstention from participation in any vote or decision affecting that business entity. Therefore, Chapter 171 of the Local Government Code would in no wise prohibit Mr. Chesney from service upon the Euless' Charter Review Commission but would only require disclosure and abstention from any vote or decision of that Commission if a matter coming before the Commission specifically involved Euless Wrecker Service. However, Mr. Chesney likely would not be considered a "local public official", under Chapter 171, as a member of the Euless' Charter Review Commission for the reason that such commission is merely advisory and only makes recommendations to the Euless City Council with respect to proposed charter revisions. (See Statutory definition above, defining Local public official as only a member or other officer " . . who exercises responsibilities beyond those that are advisory in nature.". [Emphasis supplied]). Therefore, although this chapter of the Local Government Code may well not apply to Mr. Chesney as a member of the Commission because its function is solely advisory, we would always recommend, as a safeguard, that if any member of the Commission had a conflict of interest as defined within this chapter of the Local Government Code with respect to a vote or decision of the Commission as to a business entity in which such member had required interest, the best practice would be to make disclosure thereof and not participate in such vote or decision. Ms. Susan Crim, CMC City of Euless October 19, 1994 Page 3 Additionally two sections of the Euless' City Charter should be noted. Section 2 of Article XII pretains to "Personal interest in City contracts and Section 3 of such Article pertains to "Nepotism". Section 2 basically provides that no officer or employee of the City shall have a financial interest in any contract with the City or be financially interested in any sale to the City except on behalf of the City in their capacity as an officer or employee. A member of the Euless' Charter Review Commission is not an officer or employee of the City. Officers of the City are specifically defined as the City Council, City Secretary, City Attorney, Judge of the Municipal Court. Section 3 basically provides that no .person related within certain degrees of affinity or consanguinity to the Mayor or any member of the City Council or the City Manager "... shall be appointed to any paid office, position, clerkship, or other service of the City.". [Emphasis applied]. We have historically interpreted this section to preclude only appointments to paid positions of the City. Mr. Chesney and other members of the Euless Charter Review Commission receive no payment for their services. However, this section of the Charter would still not apply to Mr. Chesney for the reason that Section 3 further provides that its prohibition does not apply to persons employed by the City prior to and at the time of election of the Mayor or Councilmember so related to them. Euless Wrecker Service has held its contract with the City continually since 1976. Mr. Baker who is related to Mr. Chesney was not elected to the Euless City Council until May of 1990. CONCLUSION Mr. Andy Chesney as President of Euless Wrecker Service, Inc. which has a contract for the towing and storage of certain vehicles with the City of Euless dating from 1976 and who also is related in the second degree of affinity to Councilmember Bobby Baker is not prohibited under Chapter 171 of the Texas' Local Government Code nor the provisions of Article XII of the Euless' City Charter from serving as a member of the Euless' Charter Review Commission. Out of an abundance of precaution Mr. Chesney should make disclosure of the contract relationship between the City of Euless and Euless Wrecker Service, Inc. as to any vote or decision of the Commission that would have a special economic effect upon Euless Wrecker Service, Inc. and thereafter Abstain from participation in any such decision or vote. espeaCtully/ ubmytted, Bob McFarlan City Attorney MRMKF cc: Mr. Tom Hart, City Manager Mayor Mary Lib Saleh Councilman Frank Douglass Councilman Todd Smith Councilman Bobby Baker Councilman Charlie Miller Councilman Glenn Walker Councilman Henry Boatright 4100NA