City of San Antonio, Texas

 

Ethics Advisory Opinion No. 2008-02

February 21, 2008

Issued By: City Attorney’s Office

 

I.  Issues: 

 

May a former member of an advisory city board represent private interests before his former board after leaving city service?

 

II. Inquiry

 

A city employee has inquired whether a former member of an advisory city board can contact city staff, members of the advisory board and elected officials on behalf of an outside non-profit organization that is seeking city funding.

 

III.  The Ethics Code

A. Ethics Code Standard of Conduct for Former City Officials and Employees

The City’s Ethics Code lists the standards of conduct to which a former city official or employee must abide.  Members of the city’s advisory boards are city officials.  Ethics Code Section   Those standards of conduct concern:

 

(1) continuing confidentiality; 

 

(2) subsequent representation of private interests before the city; 

 

(3) prior participation in negotiating or awarding contracts; and

 

(4) prohibited interests in discretionary contracts with the city. 

These provisions are set out and discussed below.

B.  All Former City Officials and Employees Have a Continuing Duty to Protect Confidential Information

Ethics Code Section 2-55 (Continuing Confidentiality) states:

A former city official or employee shall not use or disclose confidential government information acquired during service as a city official or employee.

The Ethics Code imposes a duty of continuing confidentiality.  There is no time limit for the application of this section.  Any confidential information learned during the course of an official’s or employee’s work for the city must remain confidential. 

C.  Former City Employees are Prohibited from Representing a Private Interest for a Period of Two Years after Leaving City Service

Ethics Code Section 2-56 (Subsequent Representation of Private Interests) states in relevant part:

(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. 

 (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.  

No former board member can represent a private interest before their former board for a period of two years after leaving city service.   “Representation” is defined as follows:

 

“Representation” is a presentation of fact – either by words or conduct – made to induce someone to act.

 

Ethics Code Section 2-42(u).

 

The Ethics Code does not prohibit or preclude a former city official from accepting employment or an unpaid volunteer position with an outside organization, even one that does business with or seeks funding from the city.    The former official could also assist the organization in finding grant opportunities and preparing grant applications to the city.  The former official, though, could not represent that organization to his former board.  This restriction also extends to contact with city personnel who assist the board, unless the board is only advisory in nature, which is the case in this inquiry. 

 

Accordingly, the former board member cannot appear before or contact the board for which he used to serve, but he may contact city staff assigned to assist the board on behalf of an outside organization since the board is advisory only in nature.

D.  Former City Employees Cannot Work on Contracts in which the Employee was Involved as a City Employee for Two Years after Leaving City Service

Ethics Code Section 2-57 (Prior Participation in the Negotiation, Award or Administration of Contracts) states in relevant part:

A former city official or employee shall not, within two (2) years of the termination of official duties for the city, perform work on a compensated basis relating to a discretionary city contract, if he or she personally and substantially participated in the negotiation, award or administration of the contract.

A former city official or employee, within two (2) years of termination of official duties, must disclose to the City Clerk immediately upon knowing that he or she will perform work on a compensated basis relating to a discretionary city contract for which he or she did not personally and substantially participate in its negotiation, award or administration. 

If a former official was involved in the negotiation, award or administration of a discretionary city contract, including a grant agreement, the individual would not be prohibited from accepting employment with the entity that obtained the city contract, but he could have no involvement in work related to that contract for a period of two years after leaving city service.  

Required Report to the Office of the City Clerk.   Former officials who were not involved in a city contract before leaving city service, but who wish to work on city-related contracts for an outside employer, are required to submit notice to the Office of the City Clerk that they are engaged in compensated city-related work but were not involved in the matter before leaving city service.

IV. Conclusion

The revolving door rules for former board members prohibit the members’ appearance before their former board, and interactions with city staff that serve that board, unless the board is advisory in nature.  The former official’s board was advisory in nature, so the former member would not be prohibited from meeting with city staff, but would be prohibited from appearing before his former board for a period of two years after leaving city service.