Ethics
Advisory Opinion No.
March 13, 2006
Issued By: City Attorney’s Office
I. Issue:
May a city employee submit a response to a “Request for Proposal” (RFQ) offered by the city?
II. Inquiry
The city has property which it intends to put out for bid to lease. The city will seek bids for the lease through a “request for proposal” (RFP) process. A city employee inquired whether he may submit a response or a proposal to the RFP.
III. The Ethics Code
The employee is seeking to enter into an agreement with the city to lease space. Several provisions of the Ethics Code address business relationships and interactions between the city and its employees which are discussed below:
A. Prohibited Interest in Contracts
Section 141 of the City Charter and Section 2-52 of the Ethics Code bar
a city officer or employee from having a financial interest in a contract with
the city or its agencies. In general, a
city employee is anyone on the city payroll.
Ethics Code Section 2-42(o).
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 pursuant to Section 2-73. Ethics Code Section 2-52(e)(1).
The employee in this inquiry is not required to file the financial
disclosure statement under Section 2-73.
The contract prohibition under
Section 141 of the City Charter and Section 2-52 of the Ethics Code, therefore,
would not apply to him or preclude him from seeking contracts with the
city. If he should seek a contract with
the city, though, he must avoid taking any action which could create a conflict
of interest for him as a city employee.
B. Prohibition against Conflicts of Interest
The conflicts-of-interest provision under Section
2-43 of the Ethics Code provides that an employee cannot take part in any city
action which could affect the financial interests of himself, close family
members, their employers or their businesses. Subsection (a) states in relevant
part:
General Rule. To avoid the appearance and risk of
impropriety, a city official or employee shall not take any official action
that he or she knows is likely to affect the
economic interests of:
(1) the official or employee;
(3) his or her outside
client;
(5) the
outside employer of the official or
employee or of his or her parent, child (unless the child is a minor), or
spouse;
(6) a
business entity in which the official or
employee knows that any of the persons listed in Subsections (a)(1) or (a)(2)
holds an economic interest;
(7) a
business entity which the official or employee knows is an affiliated business
or partner of a business entity in which any of the persons listed in
Subsections (a)(1) or (a)(2) holds an economic interest;
(8) a or nonprofit entity for which the city
official or employee serves as an officer or director
or in any other policy making position; or
Subsection (b) addresses the
requirement of recusal:
(b) Recusal and Disclosure. A city official or employee whose conduct would otherwise violate Subsection (a) must
recuse himself or herself. From the time
that the conflict is, or should have been recognized, he or she shall:
(1) immediately
refrain from further participation in the matter, including discussions with
any persons likely to consider the matter; and
(2) promptly
file with the City Clerk the appropriate form for disclosing the nature and
extent of the prohibited conduct.
In
addition:
(3)
a supervised employee shall promptly bring the conflict to the attention of his
or her supervisor, who will then, if
necessary, reassign responsibility for handling the matter to another person[.]
Under this subsection, the employee would be required to
recuse himself from participation of any kind on any matter he knows could
affect his personal financial interests or the financial interests of his
business. If he were to seek a contract with the city, he could have no
involvement in his capacity as a city employee in the decision to award the
contract.
D. Unfair Advancement of Private Interests
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 employee’s proposal come up for consideration
before the city, he could not participate in any related action, nor use his
position to influence others who work for the city.
E. 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. 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 his preparation of his proposal to bid on the
lease.
F. Representation of Private Interests
Section 2-47 states:
A city official or employee shall not represent for compensation any
person, group, or entity, other than himself or herself, or his or her spouse
or minor children, before the city. 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.
Representation or appearance “before the city” means representation
before the City Council; before a board, commission, or other city entity or
before a city official or employee.
Section 2-42(d). “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.
Pursuant to these standards, the individual may not represent an
incorporated entity or other separate legal entity for compensation before the
city. He may represent himself before
the city or his business if it is a sole proprietorship that does not have a
separate legal existence from the individual. See Ethics Advisory Opinion No.
65 (2002).
IV. Conclusion
The employee is not required to file annual financial disclosure
statements under Section 2-73 of the Ethics Code. Therefore, the “prohibited contracts’
provisions of the City Charter and Ethics Code do not apply to him and would
not prohibit him from submitting his proposal. The employee, though, must remain
cognizant of the standards of conduct which do apply to him, including the
city’s “conflicts-of-interest” rules and its prohibition against using city
resources for personal benefit.