City of San Antonio, Texas

Ethics Advisory Opinion No. 47

September 18, 2000

Issued By: City Attorney’s Office

 

Whether a former City Councilmember who is also a current City official may visit with City staff given his employment and positions.

A former City Councilmember who is also a current member of a City board has asked whether he may visit with City staff given his employment. The following facts are presented:

 

A former City Councilmember, who left office in May, 1999, has been appointed by the City to serve on a board, appointed to serve in March, 2000. Currently, he is employed by ABC Corporation.

 

ABC Corporation ("ABC") is a company which provides various services. At the present time, the company is not under contract with the City to provide such services. ABC products are, however, sold to the City of San Antonio through resellers on competitive bid. The individual has expressed interest in meeting with members of City staff, directly and indirectly. The issue is whether the individual may visit with City staff given his present employment and his positions as a former City Councilmember and a current City official. Because the standards of conduct differ for former and current City officials, each will be discussed below.

 

Former City Official. The Ethics Code defines a former City official as "a person whose duties terminate on or after [January 1, 1999]."[1] Former City officials are required to abide by three standards of conduct: (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts.

 

Continuing confidentiality. As a general rule, a former City official may not disclose "confidential government information acquired during service as a city official [ ]." A City official, however, is not prohibited from disclosing issues that are open to the public or that report illegal or unethical conduct to the proper authorities. The individual, in the instant case, should refrain from disclosing confidential information received while a City Councilman. This includes, but is not limited to, any information received regarding the City’s contract(s) with the resellers of ABC equipment, if applicable.

 

Subsequent representation. Part C, Section 2(b) of the Code[2] prohibits a former City official from representing for compensation any person or entity, other than himself or his immediate family before the City for two (2) years after termination of his official duties with the City. Representation is defined as "all forms of communication and personal appearances in which a person, not acting in performance of official duties, [ ] serves as an advocate for private interests."

 

The individual has inquired as to whether he may visit with City staff. Examples of such visitation include, but are not limited to, sitting at the same Chamber of Commerce luncheon table with members of City staff or attending a meeting with the City as a guest of a reseller. If the individual attends said luncheons and/or meetings, he may not advocate on behalf of ABC. This prohibition extends for a period of two (2) years from the date he terminated his duties with the City, which would be June 1, 2001.

 

Interests in Discretionary Contract. Part C, Section 3 of the Code[3] prohibits former City officers from having a financial interest in a discretionary contract with the City or its agencies, including SAWS. A former City officer, for the purposes of this section, is defined as "any person who, immediately prior to termination of official duties, was a member of City Council." Although a City officer, this section does not apply as the facts presented involve contracts made on a competitive bid basis between the City and the resellers of ABC equipment. Moreover, the individual has stated that he is an employee and not a shareholder of the company. As such, he does not meet the financial interest as required by this section.

 

Current City Official. The Board at issue is one created by the Texas Legislature. The Board consists of nine (9) members, two (2) of which are appointed by the City Council. Such appointment renders the individual a City official as defined in the Ethics Code, subject to the standards of conduct contained therein.

Improper Economic Benefit. As a general rule, a City official cannot take any official action that may affect his economic interest or the economic interest of his outside employer. The effect on the economic interest must be one that is distinguishable from its effect on members of the public. If such occurs, the City official is under a duty to recuse himself from participation in the matter and disclose the conflict, in writing, to the City Clerk.

 

In the instant case, it is unlikely that the individual would be required to take official action as a member of the Board on a matter involving ABC. If, for example, the individual, as a board member, is required to vote on appropriations for the purchase and installation of certain products and if this equipment is to be purchased from ABC, he should recuse himself from the matter and file the appropriate form with the City Clerk.

 

Unfair Advantage of Private Interest. Part B, Section 2 of the Code[4] prohibits all City officials from using their position "to unfairly advance or impede private interests, or to grant or secure, or attempt to grant or secure, for any person (including himself [ ]) any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons." Pursuant to this section, the individual may not use his Board membership to advance the interests of ABC or give the impression of such. It is advised that, when an issue involving ABC arises, the individual recuse himself from participating in the discussion, thereby eliminating any perception of impropriety.

 

Representation of Private Interests. Part B, Section 5(a) of the Code[5] prohibits City officials from representing private interests before the City board or commission on which they sit, before City staff providing support to that board or commission unless advisory in nature, or before the City body having jurisdiction of the board or commission if the issue relates to the official’s duties. Although this section does not currently apply as a result of his status as a former City Councilman, the individual should remain cognizant of this standard of conduct as it will apply at the expiration of the two (2) year period from the date of termination of his official duties.

 

Prohibited Interest in Contract. Part B, Section 10[6] prohibits City officers from having a financial interest in a contract with the City or its agencies. Under this section, a City officer includes, among others, "members of any board or commission which is more than advisory in function." A board or commission is more than advisory in function where the decisions of said commission are appealable to the City Council. Because the decisions rendered by the Board are not appealed to the City Council, members of the Board are not City officers for the purposes of this section.

 

 

 

SUMMARY

 

Former City officials are subject to the standards of conduct regarding: (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts. Pursuant to these standards of conduct, the individual is prohibited from representing ABC Corporation before the City for a period of two (2) years. This includes, but is not limited to, advocating on behalf of ABC at luncheons and/or meetings with City staff. This does not prohibit the individual from meeting with city officials on a social basis.

 

As a current City official, the individual is also subject to the standards of conduct governing said individuals. Pursuant to said standards, the individual must recuse and disclose where he is required to take official action on an issue involving his outside employer, ABC Corporation. Moreover, upon the expiration of this two (2) year period, the individual continues to be subject to the standard of conduct governing representation before the City by current City board members.

 

 

FRANK J. GARZA

City Attorney



[1]   Currently defined as “a person whose duties terminate on or after the effective date of this code.”

[2]   Currently codified in Ethics Code Section 2-56(b)

[3]   Currently codified in Ethics Code Section 2-58

[4]   Currently codified in Ethics Code Section 2-44

[5]   Currently codified in Ethics Code Section 2-47(a)

[6]   Currently codified in Ethics Code Section 2-52