PLEASE NOTE: Nothing in this publishing or on this website should be taken as legal advice.

City of Kyle Issues 2 Ethics Opinions

On March 31, 2022 and May 6, 2022, the Ethics Compliance Officer for the City of Kyle rendered two opinions on concerned raised to his office.

The first opinion was related to the appointment or employment of relatives. The second opinion was related to the City Manager’s consulting business.

Both issues were raised by Yvonne Flores-Cale, the City of Kyle Council Member for District 2.

City of Kyle Ethics Compliance Officer Opinion on Appointment or Employment of Relatives

Question Presented: Within the context of Section 2.05 of the City of Kyle Personnel Policy, can City Council nominate or appoint an in-law of an elected city official?

Advisory Opinion Issued By Doug Montgomery, Ethics Compliance Officer

Under the City of Kyle Ethics Code, Section 2-172, it states “Appointment of relatives. A city officer or employee shall not appoint or employ or vote to appoint or employe any relative within the third degree of consanguinity or affinity to any office or position of employment within the city.”

Doug Montgomery of Messer, Fort, McDonald and the Ethics Compliance Officer for the City of Kyle provided the following analysis and opinion:

First, a potential violation of the personnel policy is not necessarily a violation of the Code of Ethics. The jurisdiction of the Ethics Commission extends to violations of 2-172, but not to the personnel policy. However, there may be other remedies outside of the Ethics Commission to address that possible policy violation. I would recommend that you reach out to your City Attorney if you wish to explore those options.

Second, absent any clarifying language, the text of 2-172(b)(3) prohibits the city officer or employee from appointing or employing (or voting to appoint or employ) any relative within the third degree of consanguinity or affinity to any office or position of employment, but the ordinance does not appear to prohibit others from appointing or voting to appoint/employ the relative. In other words, if the city officer or employee recuses themselves from the appointment as well as the vote, then the act of appointment would not appear to be a violation of the Code of Ethics.

Also, the type of in-law is important, and changes the answer based on whether we are talking about the Code of Ethics or the personnel policy. In the Code of Ethics, a third degree of affinity includes grandparents-in-law, brothers/sisters-in-law, and grandchildren-in-law, as well as closer individuals such as parents/children-in-law (second degree of affinity). However, in the personnel policy, the prohibition only extends to the second degree of affinity.

In other words, if a councilmember appointed, or voted to appoint, their brother-in-law, then that person would be within the third degree of affinity and the councilmember would have likely violated the code of ethics. However, they would not have committed a violation of the personnel policy because the person appointed is outside of the second degree of affinity.

Sticking with that scenario, if the councilmember recused themselves from the appointment and vote, but the rest of the body voted to appoint the brother-in-law, then there would not be a violation of the Code of Ethics or the personnel policy.

I hope this analysis was helpful and clear enough. Please let me know if you have additional questions or want me to expand on the different types of scenarios.

End of Opinion

Advisory Opinion Issued By Doug Montgomery, Ethics Compliance Officer

It should be noted that Texas has a Nepotism Law. The law follows similar scope of the City of Kyle Ethics Commission and states the following:

Sec. 573.041. PROHIBITION APPLICABLE TO PUBLIC OFFICIAL. A public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment of an individual to a position that is to be directly or indirectly compensated from public funds or fees of office if:

(1) the individual is related to the public official within a degree described by Section 573.002; or

(2) the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002.

There are some exemptions to the Nepotism Law and they are described within Sec. 573.061 of the same law hyperlinked above.

City of Kyle Ethics Compliance Officer Opinion on the City Manager’s Consulting Business

Question presented: Whether your personal consulting company, Municipal Consulting, LLC, may do business with other municipalities by assisting them in contracting with a transportation firm to provide transportation services to residents and to what extent might the business conflict with the City of Kyle Code of Ethics.

Advisory Opinion Issued By Doug Montgomery, Ethics Compliance Officer

In review of the questions posed to the Ethics Compliance Officer for the City of Kyle, he has determined the following:

Executive Summary: There is no inherent ethics violation in MC working with other municipalities to enhance services to their citizens. However, conflicts of interest may arise if a neighboring municipality uses those services to the detriment of the City of Kyle, or one of the third-party transportation network companies uses their relationship with MC to gain an upper hand in future contract negotiations with the City of Kyle.

Advisory Opinion Issued By Doug Montgomery, Ethics Compliance Officer

In determining this outcome, the City of Kyle Ethics Compliance Officer considered four issues:

Issue one: Is consulting with other municipalities a violation of Sec. 2-176 of the Code of Ethics governing conflicting outside employment?

Issue two: Will the act of MC working with transportation network companies (TNCs) result in an improper economic benefit (Sec. 2-171), or unfair advancement of private interest (Sec. 2-172) if/when Kyle’s Uber $3.14 program needs modification or renewal

Issue three: Is MC’s use of the City’s address at City Hall for the purposes of a registered office address with the Secretary of State an improper use of public property and resources under Sec. 2- 177?

Issue four: Is MC’s hiring of Rick Koch as a contractor a violation of any of the provisions in the Code of Ethics relating to former City Officers and employees

Advisory Opinion Issued By Doug Montgomery, Ethics Compliance Officer

The opinion did advise of risks associated with the concept of the City Manager having a consulting business. However, interestingly enough, the opinion did not seem to address one part of the City of Kyle Ethics Code:

Sec. 2-176. – Conflicting outside employment. (b) Special application. The following special rule applies in addition to the general rule: A city officer or employee shall not provide services to an outside employer related to their official duties as a city officer or employee. This special rule does not apply to law enforcement employees provided that the employees are the subject of a properly adopted personnel policy authorizing such employment.

A Couple of Our Other Reads

You may be interested in reading about a lawsuit the City Manager of the City of Kyle is named as the primary defendant.

Or you may like to learn about a prior City of Kyle Council Member that ran an unregistered private investigator company.

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