City of San Antonio, Texas

Ethics Advisory Opinion No. 65

May 30, 2002

Issued By: City Attorney’s Office

Whether, upon termination with the City, an individual may provide consulting services to the City of San Antonio.

An employee in the Community Initiatives Department has asked whether, upon his termination with the City, he may provide consulting services to the City of San Antonio. The following facts are presented:

A temporary employee hired in May, 2000, works as a private consultant for the Community Initiatives Department. The employee provides advice to management team and staff training. Recently, the employee has decided to discontinue in his capacity as a temporary employee and broaden the scope of his services to entities outside the City of San Antonio, including, but not limited to, non-profit organizations and private sector organizations. He would also like to continue to provide future services to the City as a private consultant, working as a private individual on contract.

The issue is whether the individual may provide consulting services to the City upon his termination of duties. The Ethics Code defines a former City employee as "a person whose duties terminate on or after [January 1, 1999]." Once his termination is effective, he is subject to the standards of conduct provided for former city employees.

Former City employees are required to abide by four (4) standards of conduct regarding: (1) continuing confidentiality; (2) subsequent representation; (3) prior participation in negotiating or awarding of contracts; and (4) interests in discretionary contracts. Each standard is 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 former 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.

Pursuant to this standard of conduct, the individual must refrain from disclosing confidential information received in his City position to a third party and/or acting upon such information. 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[1] prohibits a former City employee from representing for compensation anyone other than himself, his spouse or minor children before the City for two (2) years after termination of his employment with the City.  Representation means “a presentation of fact – either by words or by conduct – made to induce someone to act.”

The individual has expressed an interest in directly contracting with the City to provide such services.  Where the individual is representing himself whether as a d/b/a or sole proprietorship, he falls within the exception provided for in Part C, Section 2(b)[2], and no violation of this provision is found.

If, however, the individual incorporates or creates a separate legal entity, the individual is no longer representing himself.  Rather, the individual is representing the incorporated body or other legal entity.  This representation is in violation of this provision and is prohibited where the incorporated body or other entity seeks to contract with the City.

The individual has also expressed an interest in contracting with outside organizations that may be under contract with the City to provide these services. Pursuant to this provision, the individual may not represent these outside organizations for compensation before the City Council or other City body or before any City official or employee for two (2) years from the date of his termination with the City. Despite this limitation, he may work for the third party provided it is not prohibited under another provision of the Code.

Prior Participation in Negotiating or Awarding of Contracts. Part C, Section 3[3] prohibits a former City employee from performing work on a compensated basis relating to a discretionary contract with the City for two (2) years if he "personally and substantially" participated in the negotiations or awarding of the contract. There are no facts to indicate that the individual participated in the awarding of any contract to a third party. If he participated in negotiating or awarding of such a contract, he may not provide consulting services resulting from that contract. His participation, however, must be one in which he took some type of official action, including, but not limited to, deciding or recommending selection of the third party.

Financial interest in Discretionary Contract or Sale. Part C, Section 4[4] of the Code prohibits former City employees from having a financial interest in a contract with the City or its agencies, including the San Antonio Water System. 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 the employee is not required to file such statement, this section does not apply.

SUMMARY

An employee with the Community Initiatives Department, upon termination of his employment with the City, is subject to the standards of conduct regarding:  (1) continuing confidentiality; (2) subsequent representation; (3) prior participation in negotiating or awarding of contracts; and (3) interests in discretionary contracts.  Pursuant to these standards of conduct, the individual may not represent an incorporated entity or other separate legal entity before the City for two (2) years for compensation.  He may, however, represent himself before the City whether as a d/b/a or sole proprietorship.

 ANDREW MARTIN

City Attorney



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

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

[3]   Currently codified in Section 2-57

[4]   Currently codified in Section 2-58