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
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
ANDREW MARTIN
City Attorney