Ethics Advisory Opinion No. 56

December 14, 2001

Issued By: City Attorney’s Office

Whether an employee of the Fire Department may contract with the City of San Antonio to sell uniform items.

The Purchasing Department has inquired whether an employee of the Fire Department may contract with the City of San Antonio to sell uniform items. The following facts are presented:

At various times, the Purchasing Department oversees the purchase of uniform items for the Police Department such as shirts, pants, patches, and vests. It has come to the attention of this Department that an employee of the Fire Department, a lieutenant for the Fire Suppression Division, owns a 50% interest in a company providing safety vests. Currently, the City is under contract with this company to provide said item.

The issue is whether, under the City’s Ethics Code, the employee may enter into such a contract given his position with the City. All City employees, whether part-time or full-time, are required to follow the standards of conduct as set forth in the Code.

Unfair Advantage of Private Interest. Part B, Section 2[1] of the Code prohibits all City employees 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." In the instant case, no evidence has been presented that the employee used his position in the Fire Department to obtain this contract. The contract is for the purchase of safety vests for the Police Department. Provided he did not assert his position in the awarding of this contract, there is no violation of this section.

Representation of Private Interest. Part B, Section 5(b)[2] prohibits a City employee from representing any entity, other than himself, his spouse, or minor children, before the City. Representation before the City includes actions by word or conduct made to induce either the City Council and/or City staff to take action on behalf of the outside entity. Therefore, pursuant to this section, the City employee may not request City Council and/or City staff to take action on behalf of a company in which he owns an interest.

Conflicting Outside Employment. Generally, a City employee may not engage in outside employment that may influence the performance of his official duties. More specifically, "a City . . . employee shall not provide services to an outside employer related to the . . . employee’s City duties." In determining what services conflict with the employee’s City duties, both the skills of the employee and the projects he is involved with must be examined. Conflicts arise where the skills and projects of the outside employer require action by the City employee that compromise the skills and projects he provides the City.

Firefighters in the Fire Suppression Division are responsible for, among other things, combating, extinguishing and preventing fires. These job functions do not conflict with the job requirements of providing uniform items to the City. As such, no conflict is found. However, should he be required to take any action that would affect his ability to perform his City duties, including, but not limited to, failing to report to work for the City as a result of this outside employment, he must terminate the outside employment.

Public Property and Resources. Part B, Section 7[3] of the Code prohibits City employees from using "City facilities, personnel, equipment or supplies for private purposes." Pursuant to this section, the individual must neither use City of San Antonio equipment in his outside employment nor perform any such work on City of San Antonio time.

Prohibited Interest in Contract. Part B, Section 10[4] prohibits City employees from having a financial interest in a contract with the City or its agencies including the SAWS or CPS. Under this section, a City employee is "any employee of the City who is required to file a financial disclosure statement pursuant to Section 1(a) of Part G[5]."  Because the employee is not a City employee as defined in this section, he is not prohibited from contracting with the City and may provide the uniform items under contract with the City of San Antonio.

 

SUMMARY

City employees are governed by the standards of conduct set forth in the Ethics Code of the City of San Antonio and the Fire Department’s Rules and Regulations. As such, a business in which a City employee, who is not an "officer" as defined in Part B, Section 10 of the Ethics Code[6], owns 10% or more may contract with the City of San Antonio to sell uniform items provided he neither represents the business before the City Council and/or City staff nor uses his City position to obtain said contract. Moreover, he is required not only to request outside employment in accordance with the Fire Department’s Rules and Regulations, but also to comply with the remaining standards of conduct as set forth in the Ethics Code, including refraining from using City equipment and/or performing said services on City time.

 

_____________________

FRANK J. GARZA

City Attorney



[1]   Currently codified in Section 2-44

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

[3]   Currently codified in Section 2-49

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

[5]   Currently codified in Ethics Code Section 2-73(a)

[6]   Currently codified in Ethics Code Section2-52