Ethics Advisory Opinion No. 27
June 21, 1999
Issued By: City Attorney’s Office
Whether a City employee may submit a proposal to perform work for a company under contract with VIA Metropolitan Transit.
An employee in a City Department has asked whether he may submit a proposal to perform work for a company under contract with VIA Metropolitan Transit. The following facts are presented:
An employee in a City Department has responsibilities that include, but are not limited to, administering the City’s voice communications system and radio maintenance operation, such as planning, budgeting and overseeing the division’s daily operations. The employee is interested in submitting a proposal to ABC Company ("ABC") to modify mobile and portable radios to be used in conjunction with the GPS/AVL system for the VIA Metropolitan Transit’s radio system.
The issue is whether the employee may submit
such a proposal given his position with the City. Under the Ethics Code of the
Improper Economic Benefit. As a general rule, a City employee may not take any official action that he knows is likely to have an effect on, among others, his economic interest or the economic interest of his outside employer that is distinguishable from the effect on the public in general. Should such occur, the City employee is required to recuse himself immediately, refraining from any further participation in the matter, and disclose in writing to the City Clerk the economic benefit.
It does not appear from the facts presented that an economic benefit would be bestowed on ABC as it is not currently doing business with the City. However, one of the job functions of the employee’s position is to review all bids on communicating equipment. Therefore, if ABC proposes to do business with the City for which the employee is required to take official action, he must recuse himself immediately and disclose in writing to the City Clerk the conflict. Moreover, he must notify his supervisor immediately of the conflict. The supervisor may, if necessary, reassign the responsibility to another employee.
Conflicting Outside Employment. Generally, a City employee may not engage in outside employment, which may influence the performance of the employee’s official duties. More specifically, "a City ... employee shall not provide services to an outside employer related to the . . . employee’s City duties." The essential job functions of the employee’s position include, among others, supervising the engineering, installation, operation and maintenance of radio communication networks. Modifying radio equipment, as proposed by the employee, is not an essential job function of this position. Therefore, as long as the services the employee provides to ABC are not related to his duties in his position with the City, there is no violation of this standard of conduct. He must, however, comply with Administrative Directive 4.47 that requires the employee to obtain written approval from the Department Director prior to engaging in outside employment.
Public Property and Resources. Section 7 prohibits City employees from using "City facilities, personnel, equipment or supplies for private purposes." The employee has stated that he will not use City equipment or perform said work on City time. Provided he complies with this standard of conduct, there should be no violation of this section.
Unfair Advancement of Private Interests. Part B. Section 2 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." Therefore, the employee must not use his position to advance the interests of ABC should it decide to pursue business contracts with the City. Failure to abide by this standard of conduct is a violation of the Code and subject to the penalties therein.
Confidential Information. All City employees are prohibited from using their position to obtain confidential information for purposes other than the performance of their duties and/or from intentionally or knowingly disclosing such information gained as a result of their position. Therefore, the employee must not divulge information confidential in nature, resulting from his position with the City.
City employees are governed by the standards
of conduct as set forth in the Ethics Code of the City of
FRANK J. GARZA