City of San Antonio, Texas

Ethics Advisory Opinion No. 75

June 17, 2003

Issued By: City Attorney’s Office

 

I. Issue

 

May the City of San Antonio purchase firefighting equipment through a subcontract that a city firefighter manufactures and holds a patent on?

 

 

II.  Background Facts

 

A City of San Antonio firefighter has designed a type of firefighting gear for which he holds a patent. The city is considering entering a contract for which this firefighter will be a subcontractor supplier of this gear.  He will be paid by the primary contractor, who, in turn, will fund the purchase with money received from the city. The firefighter will not be involved in the award of the contract. He is also not of a rank that requires him to file a financial disclosure statement under Part G, Section 1 (currently codified in Ethics Code Section 2-73).

 

III.  The Ethics Code

 

A.  Prohibited Interest in Contracts

 

Section 141 of the City Charter and Part B, Section 10 of the Ethics Code (currently codified in Ethics Code Section 2-52) bar a city officer or employee from having a financial interest, direct or indirect, in a contract with the city or its agencies. An indirect interest includes being a subcontractor on a city contract.  Part B, Section 10(b)(4) (currently codified in Ethics Code Section 2-52(4)(a)). 

 

For purposes of the “prohibited interests in contracts” provisions in the charter and the code, the term “employee” is limited to city personnel who are required to file financial disclosure statements under the Ethics Code Part G, Section 1. (currently codified in Ethics Code Section 2.73)[1]  Ethics Code Part B, Section 10(e) (currently codified in Ethics Code Section 2-52(e)(1)).  The firefighter making inquiry is a rank-and-file member of the fire department. He is not involved in administrative decisions regarding the expenditure of city funds and is not an employee who is required to file a financial disclosure statement under Part G, Section 1 ((currently codified in Ethics Code Section 2-73). 

 

Because he is not an employee who files financial disclosure statements, he is not an “employee” to whom the “prohibited interests in contracts” would apply.   Accordingly, he is not barred from having an interest in a contract with the city, including an indirect interest as a subcontractor under Section 141 of the City Charter or Part B, Section 10 of the Ethics Code. (currently codified in Ethics Code Section 2-52).

 

B.  Unfair Advancement of Private Interests.

Part B, Section 2 of the Code (currently codified in Ethics Code Section 2-44) prohibits all city employees from using their position "to unfairly advance or impede private interests, or to grant or secure, or attempt to grant or secure, for any person (including himself [ ]) any form of special consideration, treatment, exemption, or advantage beyond that which is lawfully available to other persons."  In the instant case, there is no indication that the employee has used his position in the Fire Department to obtain this contract. The contract is for the purchase of equipment which the firefighter designed and for which he has received a patent. Provided he did not assert his position with the city to influence the award of the contract for which he is a subcontractor, he would not be in violation of this section.

Conversely, it is also to important to note that city personnel involved in the awarding of this contract must make their decisions based on the merits of the proposals, and not based on any personal connections they may have with their colleague.

C.  Representation of Private Interests.

Part B, Section 5(b) (currently codified in Ethics Code Section 2-47(b)) prohibits a city employee from representing any entity, other than himself, his spouse, or minor children, before the city for compensation. Representation before the city includes actions by word or conduct made to induce either the City Council or city staff to take action on behalf of the outside entity. Under this section, therefore, the city employee could not ask the City Council or city staff to take action on behalf of an entity if the entity were compensating him for the representation of its interests.  

D.  Conflicting Outside Employment.

Generally, a city employee may not engage in outside employment that may influence the performance of his official duties. More specifically, "a City . . . employee shall not provide services to an outside employer related to the . . . employee’s City duties." In determining what services conflict with the employee’s city duties, both the skills of the employee and the projects he is involved with must be examined. Conflicts arise where the projects of the outside employer require action by the city employee that compromise the skills and work he provides the City.  Ethics Advisory Opinion No. 56.

Firefighters are responsible for, among other things, combating, extinguishing and preventing fires. These job functions do not conflict with responsibility of providing gear pursuant to a subcontract. As such, no conflict is found. However, if this work affected the firefighter’s ability to perform his city duties, including, but not limited to, failing to report to work, the Ethics Code requires that he forego the outside employment so that he may fulfill his responsibilities to the city. 

Before engaging in outside employment, though, the City’s Personnel Rules require that the employee first obtain the written approval of his department director.  Personnel Rule XXIV. 

E.  Public Property and Resources.

Part B, Section 7 (currently codified in Ethics Code Section 2-49) of the Code prohibits City employees from using "City facilities, personnel, equipment or supplies for private purposes." Pursuant to this section, the individual must neither use City of San Antonio equipment in his outside employment nor perform any such work on City of San Antonio time.

III.  Summary

City employees are governed by the standards of conduct set forth in the Ethics Code of the City of San Antonio and the Fire Department’s Rules and Regulations.   City officers and higher-level employees are barred by the Code and the City Charter from having a financial interest in a contract with the city.  The firefighter in this inquiry is not in a position with the city that would subject him to that prohibition. 

City employees may not use their position within the city to acquire benefits, such as a contract with the city. They must seek city action on the same terms and conditions as anyone not employed by the city. Likewise, any colleagues who may be in a position to take official action that might affect the firefighter should take care to make their decision on the merits of the proposal and not on the basis of any personal relationship.   

 

The firefighter must also obtain written approval from his department director to engage in the outside employment. If granted, the firefighter is responsible for ensuring that his outside work does not interfere with his duties for the city.  He is also restricted from representing the interests of the contractor or any other outside entity before the city for compensation.  Further, he may not use any city resource, include his duty time, to engage in activities related to his outside business. 

 

The firefighter, therefore, may supply the city with gear through his subcontract with a city contractor, so long as he remains in compliance with the Ethics Code and Personnel Rules Provision discussed in this opinion.



[1]  For these provisions, the term “officer” is limited to a member of council, a municipal court judge or magistrate or a member of any board or commission that is more than advisory in nature.