City of San Antonio, Texas

 

Ethics Advisory Opinion No. 123

October 22, 2007

Issued By: City Attorney’s Office

 

I.  Issue: 

 

May a city employee who is a “specified employee” under Section 2-78 of the Ethics Code contract with the city to provide catering services?

 

II. Inquiry

 

A city employee has a family restaurant business.  The employee is a “specified employee” who is required to file an annual gift report under Section 2-78 of the Ethics Code.  The employee inquires whether she and her family’s business may seek and accept a contract with the city to provide catering services for an event.

 

III. The City Charter and the Ethics Code – Prohibited Interests in Contracts

 

Section 141 of the City Charter provides:

 

No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies, or service, except on behalf of the City as an officer or employee.

 

The prohibition is reiterated in Section 2-52 of the city’s Ethics Code.   Section 2-52 provides that an employee is presumed to have a prohibited interest in a contract between the city and the employee’s immediate family members, including siblings and any businesses in which the employee or the employee’s family holds 10% or more ownership interest.

 

Section 2-52 defines “employees” who are subject to this prohibition as “any employee of the city who is required to file a financial disclosure statement pursuant to Section 2-73(a).”     This employee is a “specified employee” and as such, is required to file an annual gift report under Section 2-78 of the Ethics Code; this category of employee, however, is not required to file the full financial disclosure statements under Section 2-73(a).    Accordingly, the prohibition under Section 141 of the City Charter and Section 2-52 of the city’s Ethics Code is not applicable to this employee.

 

IV.  The Ethics Code  - Conflicting Outside Employment

 

Section 2-48 of the Ethics Codes states:

 

(a)       General Rule.  A city official or employee shall not solicit, accept, or engage in concurrent outside employment which could reasonably be expected to impair the independence of judgment in, or faithful performance of, official duties.

(b)       Special Application.    The following special rule applies in addition to the general rule:  A city official or employee shall not provide services to an outside employer related to the official’s or employee’s city duties.

(c)       Other Rules.   The general rule stated above applies in addition to all other rules relating to outside employment of city officials and employees, including requirement for obtaining prior approval of outside employment as applicable.

 

The employee has indicated that any work performed in connection with the catering contract would be done outside her city duty hours and without the use of any city resources.    The work under the subcontract also appears to be wholly unrelated to the employee’s city duties.  Further, she would have no role in the awarding or administration of the contract.  Accordingly, Section 2-48 would not prohibit this employee from seeking the catering contract with the city.

 

However, under Personnel Rule XXIV, employees must obtain written approval from their department before engaging in the outside employment.  Assuming that the outside employment will not interfere with the employee’s work for the city and assuming the department head has approved the additional employment in writing, the employee may apply for and accept the consultation services contract.

 

V.  Conclusion

 

The employee is not prohibited under Section 141 of the City Charter or Section 2-52 of the Ethics Code from seeking subcontract employment related to a city contract since this employee is not required to file financial disclosure requirements under Section 2-73 of the Ethics Code.

 

Assuming compliance with Municipal Civil Service Rule XXIV, the employee may subcontract with his sibling in connection with the sibling’s city contract.   However, he may not engage in any work pertaining to the subcontract using any city resource, including his city duty time.