Call it a Christmas Eve Conundrum. Or, in a Christmas nod to Charles Dickens, call it A Tale of Two City Attorneys.
This Christmas Eve, San Antonio Express-News columnist Gilbert Garcia raised the issue of whether Councilman John Courage (D9) has a conflict of interest in connection with an upcoming vote on a rate increase for CPS Energy. Courage’s wife, Zada True-Courage, is employed by the municipally owned utility.
City Attorney Andy Segovia says Courage, who has been a lonely supporter of a 3.85 percent rate increase for CPS Energy, doesn’t have to recuse himself from the vote next month.
“The impact on his wife is so attenuated, it wouldn’t fall under that prohibition,” Segovia told Garcia, adding that if the vote involved pay raises for CPS Energy employees including True-Courage, it would be a conflict. But the proposed rate hike is not for pay increases.
As it happens, on Christmas Eve 26 years ago, I wrote a column involving the same issue. The wife of Councilwoman Robert Marbut (D8), Mary Hartman, was an executive with Diamond Shamrock, a San Antonio-based oil refinery.
The company, which already had the contract to supply the city with diesel, had submitted the low bid for providing gasoline to the city’s fleets for calendar year 1996. It was a sealed bid with several companies competing.
Marbut planned on recusing himself, as he had on previous matters involving Diamond Shamrock.
But then-City Attorney Frank Garza ruled that recusing himself wasn’t enough. Citing the City Charter, Garza said that if the city accepted Diamond Shamrock’s low bid Marbut would automatically forfeit his City Council seat.
It was a stunning legal opinion, but Garza insisted he was only following the charter. The charter says no employee or officer of the city “shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies, or service, except on behalf of the City as an officer or employee.”
The charter also provides that any “willful violation of this section shall constitute malfeasance in office, and any officer or employee guilty thereof shall thereby forfeit his office or position.” In addition, the city manager or council could void the contract.
I found Garza’s position to be ridiculous. The key question, it seemed to me, was whether the council member truly had a “financial interest” in the contract through his spouse.
Garza said he did because of Texas’ “joint spousal property” laws. In other words, Texas is a community property state, so Hartman’s salary was half Marbut’s, and she got half of his city pay of $20 a week at the time.
But the reality was that Hartman played no role in Diamond Shamrock winning the sealed-bid contract. Nor would her income be impacted by her company’s award. Neither Marbut nor his wife was, by the standards current City Attorney Segovia applied to Courage, “financially interested, directly or indirectly, in the sale to the city” of the gasoline.
In the end, Diamond Shamrock withdrew its bid so that neither Marbut nor Hartman had to give up their positions. The city had to pay the second-best price for its gasoline.
So why the wildly different interpretations? Was City Hall more virtuous in the mid-1990s? Were council members and staff held to a higher standard?
Nah. Other city attorney rulings during those years did not reek of purity.
City Councilman Frank Wing (D4) had been living openly with a policewoman for years yet was active in negotiations on and voted for the infamous police contract of 1988. The day he left City Council the couple officially tied the knot, making him eligible for her gold-plated health insurance.
The family of then-Councilman Jimmy Hasslocher (D10) repeatedly renewed a lease to operate the restaurant atop the city-owned Tower of the Americas.
A policeman’s wife was given a lease for a shop at the airport.
Councilwoman Yolanda Vera (D7), an employee of USAA, was permitted to vote for a hefty tax break for Fiesta Texas. USAA was a joint owner of the theme park and would become sole owner. Vera’s vote was considered crucial because the tax break required a supermajority of nine of the council’s 11 votes.
And Mayor Bill Thornton, who had publicly cheered the city attorney’s ruling against Marbut, was not exactly a paragon of probity. Gordon Hartman, then a young homebuilder, was seeking concessions to build a subdivision of modestly priced homes in a low-income section of the West Side, Then-councilman Bobby Herrera (D6) was in enthusiastic support until Hartman refused to hire a friend of Herrera’s as a lobbyist for the project. After that Hartman couldn’t get his phone calls returned.
Hartman arranged a meeting with the mayor and was accompanied by a wealthy Dallas philanthropist who planned to provide downpayment assistance to working-class homebuyers. Hartman showed the mayor documentation of Herrera’s demand. Thornton shocked Hartman and the philanthropist by angrily telling Hartman he needed to get along with the councilman.
So why was Marbut threatened with expulsion from the council if the city took the lowest bid for a year’s worth of gasoline? Simple. He and Thornton were feuding.
It began at least six months before the gasoline vote, when Thornton was running for mayor and Marbut was seeking to succeed him in District 8. Someone in Marbut’s campaign leaked a poll of District 8, which Thornton had represented for four years, showing Thornton with an approval rating in his former district of only 36 percent.
Thornton’s people felt, reasonably, that the leak gratuitously targeted him since Marbut’s numbers in the poll weren’t leaked.
Marbut made no secret of his own mayoral ambitions and the two sparred throughout the term, at the end of which Marbut endorsed Councilman Howard Peak (D9) in his successful bid to unseat Thornton.
Given the sour relationship between Thornton and Marbut and the fact that the city attorney had repeatedly been more lenient with other council members, my conviction was and remains that the city attorney took the stance he did under pressure from the mayor.
San Antonio city attorneys theoretically represent the citizens, but in fact they tend to consider their primary clients to be the city manager, who hires them, and the mayor who traditionally has a strong say in their selection.
Disclosure: CPS Energy is a financial supporter of the San Antonio Report. For a full list of business members, click here.