City of San Antonio, Texas

 

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.