Ethics Advisory Opinion No. 110
September 28, 2006
Issued By: City Attorney’s Office
May a member of the Historic Design and Review Commission (HDRC) work on a project in his regular course of non-city employment if that project will ultimately be presented to the HDRC?
May the member present the project for review to the HDRC?
A member Historic Design and Review Commission (HDRC) has employment outside the city. In the course of this employment, he has been asked to participate in a project that would ultimately go to the HDRC for review. He inquires whether his position on the HDRC would preclude him from participating in such projects under the city’s Ethics Code. If he is not precluded from working on such projects, he further asks if he may present these projects to the board for review.
III. Ethics Code
A member of the Historic Design and Review Commission is a city official and therefore is subject to the standards of conduct established in the city’s Ethics Code, including its conflicts-of-interest provisions. These provisions would not prohibit the commissioner from taking part in projects that might ultimately go before the city. However, he would be prohibited from any involvement as a board member in the review of the project. He would also be precluded from participating in the presentation of the project to the commission, including the use of his name.
A. Conflicts of Interest Provisions
The city’s conflict of interest provision set out in Section 2-43(a)(3) states:
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 his or her outside client.
A city official or employee who has a conflict of interest must recuse himself or herself from the matter from the time that the conflict is, or should have been recognized. This means he or she must:
(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.
Further, a member of a board shall promptly disclose the conflict to other members of the board and shall not be present during the board’s discussion of, or voting on, the matter. Ethics Code, Section 2-43(b)(4).
In this inquiry, the commissioner would clearly have a conflict of interest in any matter concerning his outside client who is seeking action from the board. Accordingly, the commissioner must recuse himself from participation in the review of his client’s projects.
B. Representation Before the City by a Member of the Board
Section 2-47(a) of the Ethics Code provides:
A city official or employee who is a member of a board or other city body shall not represent any person, group, or entity:
(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 city official or employee is a member, if any issue relates to the official’s or employee’s official duties.
Section 2-42(d) defines “before the city” as a representation or appearance before the City Council; or before a board, commission, or other city entity; or before a city official or employee.
Section 2-42(bb) defines “representation” as “a presentation of fact – either by words or by conduct – made to induce someone to act.”
This provision of the Ethics Code would preclude the commissioner from having any involvement in the presentation of his client’s project to the HDRC. This would include verbal or written reports. See Ethics Review Board Advisory Opinion No. 19 (former city employee may not submit written plan for city review on behalf of client until the two-year prohibition against representing private clients before the city elapses). The commissioner is not prohibited from working on the project, but the presentation itself must be made by others.
The commissioner may work on a project that will be presented to the HDRC for review, so long as he is not involved in its presentation to the city. In the event his client’s projects are submitted to the HDRC for review, the commissioner must recuse himself from the matter and file a recusal and disclosure form with the Office of the City Clerk.