City of San Antonio, Texas

 

Ethics Advisory Opinion No. 19

 

May 30, 2006

Issued By: The Ethics Review Board

 

May an individual who is a former city employee prepare and submit engineering plans to the City less than two years after leaving city employment?

 

 

A former city employee has requested an opinion addressing the Ethics Code restrictions on former employees and their interaction with the city. This individual previously served the city as a storm water engineer in the Public Works Department. He left city service on August 22, 2005 and now works for a private engineering firm. His employer is a subcontractor on a city Parks and Recreation Department project. For this project, the former employee’s firm will develop and submit a storm water management plan to the city. The plan provides information required for the city to determine if the project will have an adverse impact on a creek. The former employee inquires how his participation in the submittal would affect the city’s review of the plan.

 

The Ethics Code of the City of San Antonio states 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) prohibited interest in discretionary contracts.

 

From the facts provided in the inquiry, there are no issues of confidentiality. The former employee also advised that he had no involvement in the contract awarded by the Parks and Recreation Department for this project. Further, the former employee has no ownership interest in the businesses that are contracting and subcontracting on this project and accordingly the provision regarding prohibited interests in discretionary contracts would not apply.

 

The facts of the inquiry, though, do raise issues under Section 2-56 regarding the subsequent representation of private interests. Section 2-56(b)[1] states:

 

(b)     Representation of Private Interests Before the City by Former City Officials and Employees. A former city official or employee shall not represent for compensation any person, private group, or private entity, other than himself or herself, or his or her spouse or minor children, before the city for a period of two (2) years after termination of his or her official duties. This subsection does not apply to a person who was classified as a city official only because he or she was an appointed member of a board or other city body. For purposes of this subsection, the term compensation means money or any other thing of value that is received, or is to be received, in return for or in connection with such representation.

 

The restriction against representing private interests before the city applies for a two-year period after termination of city service. The former employee will be subject to this provision until August 22, 2007.

 

The Ethics Code does not preclude the employee from working on the project on behalf of his employer because he had no prior participation in this matter while working for the city. Section 2-56(b), however, does prohibit him from representing a private interest for compensation before the city during the two years following termination of city service. The former employee inquires whether the submission of the storm water management plan to the city for review constitutes representation that would be prohibited under Section 2-56(b).

 

Section 2-42(bb) states:

 

Representation. “Representation” is a presentation of fact – either by words or by conduct – made to induce someone to act. Representation does not include appearance as a witness in litigation or other official proceedings.

 

Section 2-42(c) provides:

 

Before the City. Representation or appearance “before the city” means before the City Council; before a board, commission, or other city entity; or before a city official or employee. Representation “before the city” does not include representation before a board where members of said board are not wholly appointed by the City Council.

 

The inquiry indicates that the contractor for the Parks and Recreation Department project is required to submit storm water management plan so that city staff can evaluate the impact of the project on a creekway. Based on the information provided in the plan, city staff will conduct an evaluation, which in turn will affect continued progress on the project. The storm water management plan requires the signature and seal of the engineer submitting the report. The seal can only be used by a registered professional engineer licensed to practice in the State of Texas. The former city employee was the P.E. who prepared the plan. Accordingly, the board concludes that submission of the plan would constitute “representation” before the city. The former employee cannot make that submission on behalf of his employer, the subcontractor, until August 22, 2007. At this time, the former employee may participate in the development of the plan, but its submission must be made by another staff member.

 

The former employee also asks if the plan is submitted by a former employee within the two-year restriction period, would the plan be reviewed. As discussed, the former employee would be in violation of the code in engaging in the representation of private interests before the city if he submitted the plan during the two-year restriction period. Under Section 2-51, a city employee cannot intentionally or knowingly assist another person in violating the code of ethics. An employee who is aware that a former employee still under the two-year restriction period would act appropriately in refusing to accept the submission of the plan and requesting re-submission by another individual not subject to these restrictions.

 

 


OPINION

 

It is the opinion of the Ethics Review Board that based upon the facts presented, the former employee is prohibited from submitting the storm water management plan on behalf of his employee, the subcontractor until two years have elapsed since the termination of his service to the city.

 

 

 

 

________________________________                                     ­­­­­­­­_May 30, 2006_______

Arthur Downey, Jr.                                                                  Date

Chairman, Ethics Review Board

 

 



[1] Section 2-56(a) addresses subsequent representation before the city by former city boards and commissions members and therefore is not applicable in this matter.