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
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
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
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