Ethics Advisory Opinion No. 32

 August 27, 1999

Issued By:  City Attorney’s Office

Whether, upon termination with the City, an individual may provide engineering services to a company that plans to submit interest statements for capital improvement projects with the City of San Antonio.

An employee in the Department of Public Works has asked whether, upon his termination with the City, he may provide engineering services to a company that plans to submit interest statements for capital improvement projects with the City.  The following facts are presented:

An employee in the Department of Public Works is terminating his employment with the City after nine (9) months. In his position as a City engineer, he has been responsible for reviewing engineering plans prepared by consulting engineers for City Capital Improvement projects.  Recently, he accepted an engineering position with a consulting firm that plans to submit interest statements for capital improvement projects with the City.  Under this new position, his major responsibilities are to design projects and to supervise surveying crews.

The issue is whether the individual may provide engineering services to the company given his former employment with the City.  The Ethics Code defines a former City employee as “a person whose duties terminate on or after [January 1, 1999].”  Because the employee has terminated his position with the City, effective this day, he is subject to the standards of conduct as provided therein. 

Former City employees are required to abide by three (3) standards of conduct regarding:  (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts.  These three (3) standards are discussed in detail below.

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 no longer confidential by law or that report illegal or unethical conduct to the proper authorities.  Therefore, the individual must refrain from disclosing confidential information received in his position as an engineer.  This includes any information received as a result of his involvement with the City’s capital improvement projects  Failure to abide by this standard of conduct subjects the former City employee to the penalties as stated in the Code.

Subsequent representation.  Part C, Section 2(b) of the Code prohibits a former City employee from representing for compensation anyone other than himself, his spouse or minor children before the City Council, a City board or commission or a City official or employee for two (2) years after termination of his employment with the City.  It further prohibits a former City employee from implying that he is able to influence City action as a result of his former position.

Under the facts presented, the individual could not represent the engineering consulting firm for compensation before the Department of Public Works, including any interest statements for capital improvement projects, or before the City Council for two (2) years from the date of his termination with the City.  If the engineering consulting firm submits an interest statement for a capital improvement project within that two (2) year period, the former City employee would neither be permitted to participate in the process nor infer that he is able to influence the City’s action as a result of his previous position. In other words, the  individual can work for the engineering consulting firm, but may not participate with any city contract for two years.

Financial interest in Discretionary Contract or Sale.  Part C, Section 3 of the Code prohibits former City employees from having a financial interest in a contract with the City or its agencies, including SAWS.  Under this section, a former City employee is defined as “any person who, prior to termination of employee status, was required to file a financial disclosure statement.”  This includes those individuals who are City officials and who are in executive pay plan status.  Because a City engineer is not required to file such statement, this section does not apply.

SUMMARY

An employee with the Department of Public Works, upon termination of his employment with the City, is subject to the standards of conduct regarding:  (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts.  Because his position with the City required him to review engineering plans prepared by consulting engineers for the City’s Capital Improvement Projects, the individual may not provide those same services to an engineering consulting firm on such projects.  To do so would be a violation of the Ethics Code.  Therefore, the individual must not represent the engineering consulting firm before the City’s Public Works Department or the City Council for a period of two (2) years.
 

FRANK J. GARZA

City Attorney