City of San Antonio, Texas

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 San Antonio. To that end, the EDF, through the actions of Mr. Jacob, organizes meetings between the interested businesses and the City, providing information on tax abatement and/or any other incentives available from the City.

Terri Williams is also a former Economic Development Manager. As a Manager, Ms. Williams managed staff division activities including those related to the First Point Business Information Center, Small and Minority Business Advocacy Program (SMBA), Procurement Outreach Program (POP), and the Neighborhood Commercial Revitalization Program (NCRP). She left the City in the Spring of this year to work as a manager with the Greater Kelly Development Authority (GKDA) to promote the utilization of small, minority, and women-owned businesses at KellyUSA. The GKDA is a defense base development authority for Kelly Air Force Base, adopted by Ordinance No. 90826, passed and approved on November 4, 1999, and is authorized to, among other things, contract and acquire property.

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 San Antonio. Although such presentation, facilitation and attendance at meetings, is representation before the City, it is representation that benefits the public by creating a viable economy.

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

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, Mr. Jacob and Ms. Brown, are not prohibited from representing the EDF and the CERA, respectively, before the City because they are not advocates for a private interest. Ms. Williams, because she represents an entity that is a political subdivision of the state, may come before the City on behalf of the GKDA.

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



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

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

[3]   Currently codified in Ethics Code Section 2-73

[4]   Currently codified in Ethics Code Section 2-83