So You Want To Help The Old Lady?
Issues in municipal government seem to come in waves. Recently the wave issues have been, at the crest, wanting to help citizens using public tax dollars and, in the trough, accepting gifts on the city’s behalf from grateful citizens. What is a public official to do to not violate the law or ethics?
The general rule is that you cannot spend tax dollars on private property. Growing up on a ranch in north Texas, the county would come at the beginning of summer to “scrape” fire guards using county equipment along public highways and county roads just inside the owner’s property line to help prevent grass fires. Is that using tax dollars to improve private property? Is there a public purpose to preventing grass fires from racing across the counties?
What about an old lady who is house bound, but whose shrubs have died along the city street and is therefore in violation of city ordinances? Can the City help beautify the City by sending a crew out to remove the offending shrubbery and thereby help the old lady and relieve her of the burden of a municipal citation? Another question asked is: can we sponsor and donate uniforms to the local boy scout troop? The safe answer is don’t do it, but usually it’s done anyway.
Gifts, Bribes and Benefits
Three circumstances arose recently, starting with a local foundation giving elected officials and me a free year’s membership. Another circumstance was whether a city can accept free publication of a magazine if the cost is covered by ad revenue. Lastly, how about free massages for the overworked public servants? Put me in line!
Texas Local Government Code Section 51.076(a) provides that a municipality “may hold property, including any charitable or trust fund, that it receives by gift, deed, devise, or other manner.” So long as there are no strings attached, it would be legal for the city to receive property or receive services that are free. But watch out for conflicts of interests and anti-bribery statutes.
Section 36.02 of the Texas Penal Code makes it a crime of bribery for a person to offer, confer, or agree to confer, or for a public official or employee to accept, agree to accept, or solicit, any benefit as consideration for a decision, opinion, recommendation, vote or other exercise of discretion. In other words, a benefit would include anything that is offered that a reasonable person would consider having some monetary value, whether it is given to the public official or to someone in whom the official has a direct and substantial interest (such as a family member or a business associate).
The Penal Code generally prohibits a public official from ever accepting a benefit from a person subject to his or her jurisdiction, regardless of whether it was in recognition of superior service or a token of gratitude.
A public official or employee who receives an unsolicited benefit may donate the benefit to a recognized tax-exempt charitable organization formed for educational, religious, or scientific purposes. However, this exception does not apply if the gift was provided as part of an honorarium. In such a case, the gift should be refused, and the offering entity is free to make some other use of the benefit.
State law prohibits a public official or public employee from misusing government property, services, personnel, or any other thing of value belonging to the government with the intent to obtain a benefit or to harm or defraud another.
It’s easy to say, help the old lady on your own dime, but many times public officials are faced with situations that demand some heart!
Texas native J. Grady Randle concentrates his practice in the areas of real estate and municipal law in Houston and the surrounding counties. He represents government entities and local municipalities in litigation, regulation, land development, zoning, land use, and other matters. Mr. Randle also handles a wide variety of real estate transactional and litigation matters, including oil and gas contracts, large commercial land and building purchases, and commercial landlord-tenant issues. He received his Juris Doctorate as well as a Bachelor of Business Administration from Baylor University.