Ethics
Advisory Opinion No. 49
December
5, 2000
Issued
By: City Attorney’s Office
Whether former
City employees may communicate with current City employees; and
Whether current
City officials or employees are required to report possible violations of the
Ethics Code, and, if not, the proper course of action in such situations.
The Department of Economic Development has
asked whether former City employees may communicate with current City
employees. It has further asked whether current City officials or employees are
required to report possible violations of the Ethics Code, and, if not
required, the proper course of action in such situations.
Issue One. Whether former City employees may communicate
with current City employees.
Three (3) former City employees of the
Department of Economic Development (EDD) are now employed by non-profit and
not-for-profit corporations. On behalf of his employer, each of these individuals
has contacted several members of the EDD staff, including, but not limited to,
the Director and Assistant Director. Each situation is discussed below.
Arnold Jacob was formerly employed by the
City as an Economic Development Manager, overseeing the Industry Development
and Technology section of the EDD. In this position, he was responsible for,
among other things, designing and implementing strategies for, not only, local
business retention, but also neighborhood commercial and revitalization districts.
He terminated his position with the City in
October of this year to work for the San Antonio Economic Development
Foundation (EDF). In this position, he has met with the EDD staff regarding
possible incentives available for clients of the EDF and has acted as a
facilitator and meeting organizer between the City and the EDF’s clients.
The EDF is a not for profit corporation that
assists in the promotion of industry attraction and/or retention. Financed by
private corporations and revenues from the San Antonio Water System (SAWS), the
EDF seeks to expand and to locate businesses in
Terri Williams is also a former Economic
Development Manager. As a Manager, Ms. Williams managed staff division
activities including those related to the
Ida Brown was employed as a Senior Planner
with the EDD. As a Senior Planner, she was responsible for, among other things,
conducting special studies on land use projects. In the summer of 1999, she
left the City and began working as the Executive Director of the Community
Economic Revitalization Agency (CERA).
The CERA is a non profit corporation that
promotes economic development and revitalization on the City’s Eastside. In
July, the CERA received monies from the Council’s one time projects budget
allocated to Council District 2 for the implementation of additional economic
development projects. Subsequently, the CERA was selected as one of the service
providers for revitalization projects under the Neighborhood Commercial
Revitalization Program (NCRP), contracting with the City to provide said
services.
Currently, Ms. Brown serves as Executive
Director of the CERA. In this position, she often communicates, orally and in
writing, with City staff and City Council. She has, for example, been present
at meetings with members of the EDD staff and Councilmembers as well as come
before the City Council during the budget process at the CERA’s behest.
For each of these individuals, the issue is
whether he may meet with City staff given his present employment and his former
position with the City. The Ethics Code defines a former City employee as "a
person whose duties terminate on or after [January 1, 1999]." Because
each of the individuals above mentioned terminated his position after January
1, 1999, he is a former city employee and is 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 employee may not
disclose "confidential government information acquired during service
as a city [ ] employee." A City employee, however, is not prohibited
from disclosing issues that are open to the public or that report illegal or
unethical conduct to the proper authorities.
Pursuant to this provision, each of the
individuals must refrain from disclosing confidential information received
while in his respective position with the City. This includes, but is not
limited to, any information received regarding the City’s contract(s) with his
or other delegate agencies, if applicable.
Subsequent representation. Part C, Section 2(b) of the Code[1] prohibits a former
City employee 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 before
the City 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 [before the City Council;
before a board, commission, or other city entity; or before a city official or
employee.]" A public interest is "something in which
the public as a whole has a stake." Conversely, a private interest is
something in which only certain members of the public have a stake.
In each case presented above, the
individuals represent the interests of outside entities. However, each of the
entities represented is either a delegate agency of the City or considered a
partner in the City’s economic development efforts. Mr. Jacob, for example,
facilitates meetings between the City and outside entities, clients of the EDF,
in an attempt to inform these entities about tax incentives available should it
decide to locate its facilities to
Similarly, Ms. Brown, in representing the
CERA, vies for monies from the City. Through such efforts, the CERA acts in
partnership with the City to promote and revitalize certain areas of the City.
And finally, Ms. Williams may represent the GKDA before the City. However,
because the GKDA is a political subdivision of the state, any representation
she may make is on behalf of a public interest, and therefore, there is no
violation of this section.
Although each of these individuals has met
or may meet with City staff on behalf of his employer, the representations made
on behalf of said employers are matters in which the public as a whole has an
interest. As such, there is no violation of this section.
Interests in Discretionary Contract. Part C, Section 3 of the Code[2] prohibits former
City employees from having a financial interest in a discretionary contract
with the City or its agencies, including SAWS. A former City employee, for the
purposes of this section, is defined as "any person who, prior to
termination of employee status, was required to file a financial disclosure
statement pursuant to Section 1(a) of Part G." [3]
Because none of the individuals above is a former City employee as defined
herein, this section does not apply. However, this issue needs to be addressed
on a case-by-case basis and this opinion should not be used to interpret any
other situation of a former employee.
Issue Two. Whether current City officials or employees are
required to report possible violations of the Ethics Code, and, if not, the
proper course of action in such situations.
Currently, the Ethics Code does not have a
provision requiring a City official or employee to report violations or
possible violations of the Code. Where such occurs, a City official or employee
has two (2) possible courses of action: (1) to file a complaint; or (2) to
request, in writing, an advisory opinion from the Office of the City Attorney.
Part H, Section 4[4] allows any
individual to file a complaint alleging a violation of the Ethics Code with the
City Clerk. The complaint must state the individual allegedly committing the
violation(s), a statement of facts on which the complaint is based, and the
rule(s) allegedly violated. Once a complaint is filed, it is forwarded to the
Ethics Review Board for its review and consideration.
A second possible course of action is to
request an opinion from the Office of the City Attorney. If an opinion is
issued, said opinion should be forwarded to the individual allegedly committing
the violation(s) thereby informing him that his actions are in violation of the
Code and should, therefore, cease.
SUMMARY
Moreover, although not required by the Code,
a City official or employee who knows of a violation or possible violation of
the Ethics Code should either file a complaint or request, in writing, an
advisory opinion from the Office of the City Attorney.
FRANK J. GARZA
City Attorney