City of San Antonio, Texas

Ethics Advisory Opinion No. 58

September 9, 2002

Issued By: City Attorney’s Office

Whether the Neighborhood Action Department may provide funding to a former City official through its Environmental Protection Agency Brownfields grant funds.

The Neighborhood Action Department has asked whether it may provide funding to a former City official through its Environmental Protection Agency ("EPA") Brownfields grant funds. The following facts are presented:

The EPA Brownfields Grant provides funding, through the City of San Antonio, for environmental site assessments. To qualify for an assessment, a proposed project must meet specified selection criteria. Once qualified, the site assessment is conducted through one (1) of seven (7) stand-by Professional Environmental Engineering Contracts with the City’s Environmental Services Department. The Texas Professional Services Procurement Act governs selection of the companies providing services under these contracts. Upon completion, the study is the property of the City. It is, however, made available to the property owner(s), buyer(s), and/or perspective developer(s).

Recently, a former City official, who terminated his position with the City in June 2001, requested the City’s assistance in obtaining a site assessment for a property for which he is the buyer/developer. The site meets the specified selection criteria for the grant program. The issue is whether the City may provide funding to a former City official through its EPA Brownfields grant funds.

The Ethics Code defines a former City official as "a person whose duties terminate on or after [January 1, 1999]." As a former City official, the individual is required to follow the four standards of conduct so governing: (1) confidential information; (2) representation of private interests; (3) prior participation in the negotiation or awarding of a contract; and (4) interests in discretionary contracts.

Continuing confidentiality. As a general rule, a former City official may not disclose "confidential government information acquired during service as a city official." The former City official, however, is not prohibited from disclosing issues that are open to the public or that report illegal or unethical conduct to the proper authorities.

It is the understanding of this office that the services provided under the grant are promoted through press releases and published stories in the local newspaper on a first come, first served basis for projects that meet the criteria, including the potential for actual reinvestment/redevelopment. Other community outreach efforts include public meetings on completed projects, mailings, placement of articles in commercial real estate newsletters, and distribution of brochures describing the grant availability at City showcases. Because assessments are available to anyone whose property meets the established criteria and because this information is disseminated to the public, the provision on confidential information is not implicated.

Subsequent representation. Part C, Section 2(b) of the Code[1] prohibits a former City official 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 "a presentation of fact [before the City Council, before a board, commission, or other city entity, or before a city official or employee] – either by words or by conduct – made to induce someone to act."

Under the facts presented, the individual is representing himself before the City. Therefore, there is no violation of this section. He could not represent any business entity recognized by law for compensation before the City, other than one owned and operated in his personal capacity, e.g. a sole proprietorship. In any event, he may neither state nor imply that he is able to influence City action.

Prior Participation. Part C, Section 3 of the Code[2] prohibits a former city official from "perform[ing] work on a compensated basis relating to a discretionary contract [within two (2) years of terminating his official duties], if he . . . personally and substantially participated in the negotiation or awarding of the contract." There are no facts to indicate that this section applies.

Interests in Discretionary Contract. Part C, Section 4 of the Code[3] prohibits a former City employee from having a financial interest in a discretionary contract with the City or its agencies, including the San Antonio Water System or City Public Service. 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 (Financial Disclosure Report)[4]."

The individual, a former Assistant to the City Manager, was required to file the financial disclosure statement, and, as such, he is a former City employee as defined in this section. The prohibition, however, only applies where the former City employee has a financial interest in a City contract. A financial interest includes, but is not limited to, the individual being a party to a City contract or a subcontractor to a City contract. Because the contract to provide the site assessment is between the City and a third party as stated above, the individual does not have the requisite financial interest. Therefore, this section does not apply.

 

SUMMARY

Former City officials are subject to the standards of conduct regarding: (1) continuing confidentiality; (2) subsequent representation; and (3) prior participation in negotiation or awarding of contracts; and (4) prohibited interest in discretionary contracts. Under the facts presented, an individual who is a former City official may apply for funding under the Environmental Protection Agency Brownfields Grant for a site assessment on a property for which he is the buyer/developer, provided he is representing himself and not a separate legal entity before the City.

 

 

 

ANDREW MARTIN

City Attorney



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

[2]   Currently codified in Ethics Code Section 2-57

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

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