Ethics Advisory Opinion No. 2008-04
June 23, 2008
Issued By: City Attorney’s Office
May a former city employee accept employment with a non-profit organization that seeks funding from the city through grant applications?
If so, may the former city employee submit grant applications on behalf of the organization to the city?
Could the former city employee be compensated by the new employer from funds obtained through city grant funding?
A city employee who will soon retire has inquired about accepting employment with a non-profit organization that from time to time seeks funding from the city through grant applications. She asks whether she may accept employment with this entity, and if so, could she assist the entity in the preparation and submission of grant applications to the city. Further, she asks whether she may assist the organization in administering the programs funded by city grants, and if her compensation can be paid for with the city funding. The employee was not an executive level employee required to file annual financial disclosure forms under Section 2-73 of the Ethics Code.
III. The Ethics Code
Ethics Code Standard of Conduct for
The City’s Ethics Code lists the standards of conduct to which a former city official or employee must abide. 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 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 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:
(b) Representation of Private Interests Before the City by
(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 employee can represent a private interest before the city for compensation for a period of two years after leaving city service. “Representation” and “before the city” are defined as follows:
“Representation” is a presentation of fact – either by words or conduct – made to induce someone to act.
Representation or appearance “before the city” means before the City Council; before a board, commission, or other city entity; or before a city official or employee.
The Ethics Code does not prohibit or preclude a former city employee from accepting employment with an outside organization, even one that does business with or seeks funding from the city. If the individual is a paid employee of the new employer, however, he or she would be prohibited from representing that employer’s interests before the city for a period of two years after leaving city service. The individual could assist the organization in finding grant opportunities and preparing grant applications to the city, but could not sign the grant applications or otherwise function as the entity's representative in its interactions with the city. In essence, the former employee can assist his or her new employer in endeavors that pertain to the city, but cannot be the face or voice of the new employer’s interests with city personnel. However, if the former employee was involved in the grant or contract matter while still a city employee, additional restrictions will apply, which are discussed in the next section.
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 employee 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 or she 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 employees who were not involved in a city contract before leaving city service, but who wish to work on city-related contracts for their new 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.
The prohibitions against the representation of private interests and working on contracts in which an employee was involved during city service would not apply to former employees who serve as unpaid volunteers for outside organizations. As unpaid volunteers, former employees could appear before city boards or city staff representing outside entities in their efforts to obtain city funding, including preparing grant applications, signing them and interacting with city personnel to assist the entity in obtaining city funding.
E. Certain City Officials and Management-Level Employees Cannot Have an Interest in a Discretionary Contract with the City for One Year After Leaving City Service
Under Section 2-58 of the Ethics Code, elected officials, members of boards and commissions that are more than advisory in nature, municipal judges and management-level employees who are required to file annual financial disclosure reports under Section 2-73 are also subject to a prohibition restricting themselves, their family members and the businesses they own from entering into a discretionary contract with the city. The employee who submitted this inquiry is not within any of these categories and accordingly is not subject to this provision. See Ethics Advisory Opinion 2008-07 (August 19, 2008) for further discussion of Section 2-58.
The former employee may accept employment with a non-profit organization that seeks funding from the city through grant applications. She may assist her new employer in finding grant opportunities with the city and in the preparation of applications, and accept compensation paid for with grant funds, but she cannot sign the applications or function in any way as the non-profit’s representative in its interactions with city personnel for a period of two years after leaving city service.
However, she is prohibited from working on city-related contracts for a period of two years in any capacity outside the city, if she was involved in those matters before leaving city service.
Reporting Requirement. If she assists her new employer with city-related discretionary contracts, however, she will be required to submit a notice of this work with the Office of the City Clerk and confirm that she had no involvement with the matter while still in city service.