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
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.
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
SUMMARY
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