Ethics Advisory Opinion No. 76
August 1, 2003
Issued By: City Attorney’s Office
May a city employee and members of his family who own a restaurant business enter into a contract with the city to provide catering services?
II. Factual Background
The city employee making
this inquiry has worked for the City of
The employee and his wife own 30% of a family restaurant business. His brother-in-law and his mother and father-in-law own the other 70%. A representative of the city contacted the restaurant owned by the employee and his family seeking catering services for the city. The employee has inquired whether the Ethics Code would prohibit him or his family business from entering into a contract with the city to provide this service.
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 in a contract with the city or its agencies. Generally, a city employee is anyone on the city payroll. Ethics Code Part A, Section 2 (currently codified in Ethics Code Section 2-42). However, for purposes of Section 141 of the City Charter, the definition of employee is limited to only employees who are required to file a financial disclosure statement. Ethics Code Part B, Section 10(c) (currently codified in Ethics Code Section2-52(e)).. Under Part B, Section 10(c) (currently codified in Ethics Code Section 2-52)), an employee who files a financial disclosure statement may not have any interest, direct or indirect, in a contract with the city. Such an employee would also have a prohibited financial interest if he owned 10% or more of a business that had a contract with the city. Ethics Code Part B, Section 10(b) (currently codified in Ethics Code Section 2-52(b))..
The employee in this matter is not an employee who is required to file the financial disclosure statement. The contract prohibition under Section 141 of the City Charter and Part B Section 10 of the Ethics Code (currently codified in Ethics Code Section 2-52), therefore, would not apply to him or preclude him or his family from entering into a contract for catering services with the city.
B. Conflicting Outside Employment
Part B, Section 6 of the Ethics Code (currently codified in Ethics Code Section 2-48 ) states that a city employee cannot solicit, accept or engage in concurrent outside employment which could impair or interfere with the employee’s official duties. In addition, under Personnel Rule XXIV, the employee must obtain written approval from his department before engaging in the outside employment. Assuming that the outside employment will not interfere with the employee’s work for the city and assuming the department head has approved the additional employment in writing, the employee may participate in the family-owned business.
C. Unfair Advancement of Private Interests
Part B, Section 2 (currently codified in Ethics Code Section 2-44) prohibits the use of a city employee’s position to unfairly advance or impede the private interests of another or to grant or secure for any person, including the employee himself, any form of special consideration beyond that which is lawfully available to other persons. Again, should some issue regarding the family business come before the employee’s department, he could not participate in any related action, nor use his position to influence others who work for the city.
D. Public Property and Resources
A city official or employee cannot use, request or permit the use of city facilities, personnel, equipment or supplies for private purposes except to the extent and according to the terms that those resources are lawfully available to the public Part B, Section 7(currently codified in Ethics Code Section 2-49). The employee, therefore, cannot use any city resource, including the time for which he is scheduled to work for the city, for a private purpose, including attending to the family business.
The “prohibited interests in contracts” provision of the City Charter and Part B, Section 10 of the Ethics Code (currently codified in Ethics Code Section 2-52) prohibits only an official or employee required to file a financial disclosure statement from having an interest in a contract with the city. Since this employee is not in this category, the prohibition would not apply. The employee, though, should remain cognizant of the other obligations and responsibilities imposed upon him by the Ethics Code as discussed in this opinion.