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:
(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.
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