City
of San Antonio , Texas
Ethics Advisory Opinion No. 20
May 12, 2009
Issued By: The Ethics Review Board
May a former City Employee accept
employment as a sub-contractor for a nonprofit organization to prepare
proposals that will be submitted to the City?
A former city employee retired from the Office of Cultural Affairs (OCA)
on February 29, 2008. It has been less than
two years since he terminated employment with the City.
The OCA has recently instituted the "Technical
and Economic Development Assistance Program" which is designed to assist
local not-for-profit arts and cultural organizations and artists with funding
for professional services that would assist in their development and
professional growth. The former employee has inquired whether he could accept
consulting contracts with not-for-profits arts organizations to assist in the
applications for this program.
The
Technical and Economic Assistance Program is a competitive program. Applicants
must submit a written application to the Office of Cultural Affairs,
specifically citing the following: a brief description of why the request is
being made and what need it will address: the amount of the request and
associated total budget; the time frame for the project and the expected
outcome. Awards are given on a first come, first served basis and are limited
to a total annual amount not to exceed $2,500 per applicant. All awardees will
enter into a contract with OCA before they begin their project.
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) interest in discretionary contracts. In this instance
subsequent representation is the issue. That portion of the Code is quoted
below:
Section
2-56 Subsequent Representation of Private Interests.
(a) Representation of Private Interests Before
the City by a Former Board Member. A person who was a member of a board or
other city body shall not represent any person, group, or entity for a period
of two (2) years after the termination of his
or her official duties:
(1) before that board or body;
(2) before city staff having
responsibility for making recommendations to, or taking any action on behalf
of, that board or body, unless the board or body is only advisory in nature; or
(3) before a board or other city body which has
appellate jurisdiction over the board or body of which the former city official
or employee was a member, if any issue relates to his or her former
duties.
(b) Representation of Private Interests Before
the City by
(c) Improper
Representation of Influence. In
connection with the representation of private interests before the city, a
former city official or employee shall not state or imply that he or she is
able to influence city action on any basis other than the merits.
Definitions.
For purposes of this Section:
(1) A
“former city employee” is any person who, prior to termination of employee
status, was required to file a financial disclosure statement pursuant to Section
2-73(a) of Division 7 (Financial Disclosure Report).
(2) A
“former city officer” is any person who, immediately prior to termination of
official duties, was:
(A) the Mayor or a member of City Council;
(B) a Municipal Court Judge or Magistrate; or
(C) a
member of any board or commission which is more than advisory in nature. The term does not include members of the
board of another governmental entity even if some or all of these members are
appointed by the city.
(3) The term “contract” means any discretionary
contract other than a contract for the personal services of the former city
official or employee.
(4) The term “service” means any services other
than the personal services of the former official or employee.
OPINION
It is the opinion of the Ethics Review Board that based upon
the facts presented in the request the individual's preparation of the proposal
to be submitted to the City by the organization would constitute representation
before the City; there is a prohibition against a former city employee from representing
private interests before the City for a period of two (2) years after the
termination of his official duties with the city. Therefore this action would constitute a
violation of the Code. Assistance to a nonprofit organization in preparing
their proposal could be acceptable as would acting as a sub-contractor
providing services; however since the individual states in his request for
opinion that he wishes to avoid even the perception of violating the ethics
code and since it would be difficult, if not impossible to create and maintain
a firewall between the individual and the members of his former city office
while conducting these activities, the prudent course would be for him to
refrain from this endeavor until March 1st, 2010.
________________________________ May 12, 2009
Arthur Downey, Jr. Date
Chairman, Ethics Review Board