City of San Antonio, Texas

 

Ethics Advisory Opinion No. 2008-08

August 19, 2008

Issued By: City Attorney’s Office

 

I.  Issues: 

 

May a former city official purchase real estate from the City of San Antonio?

 

II. Inquiry

 

Staff has inquired whether a former city official can purchase real estate from the City of San Antonio.   Less than 1 year has elapsed since this former official has left city service. 

 

 

III. The Ethics Code

A.  A Former City Officer Cannot Enter into a Discretionary Contract with the City for a Period of One Year after Leaving City Service

Under Section 141 of the City Charter and Section 2-52 of the Ethics Code, city officers and certain management-level city employees cannot enter into any contract with the city.  The Ethics Code also includes a similar provision that prohibits officers and certain employees[1] from entering into discretionary contracts with the city for a year after leaving city service.  Ethics Code Section 2-58.  “Officers” include councilmembers, municipal judges and members of city boards and commissions that are more than advisory in nature.  Ethics Code Section 2-58(c)(2).

Section 2-58 of the Ethics Code states:

SECTION 2-58  DISCRETIONARY CONTRACTS 

(a)   Impermissible Interest in Discretionary Contract or Sale.  This Subsection applies only to contracts or sales made on a discretionary basis, and does not apply to contracts or sales made on a competitive bid basis. Within one (1) year of the termination of official duties, a former city officer or employee shall neither have a financial interest, direct or indirect, in any discretionary contract with the City, nor have a financial interest, direct or indirect, in the sale to the City of any land, materials, supplies, or service. Any violation of this Section, with the knowledge, expressed or implied, of the individual or business entity contracting with the Council shall render the contract involved voidable by the City Manager or the Council. A former city officer or employee has a prohibited “financial interest” in a discretionary contract with the city, or in the sale to the city of land, materials, supplies, or service, if any of the following individuals or entities is a party to the contract or sale:

(1) the former officer or employee;

(2) his or her parent, child, or spouse;

(3) a business entity in which the former officer or employee, or his or her parent, child or spouse, directly or indirectly owns:

(A)  ten (10) percent or more of the voting stock or shares of the business entity, or

(B)  ten (10) percent or more of the fair market value of the business entity; or

(4)  a business entity of which any individual or entity listed in Subsection (1), (2) or (3) is:

(A)    a subcontractor on a city contract;

(B)    a partner; or

(C)    a parent or subsidiary business entity.   

In this inquiry, the former city official is a former city “officer” for purposes of this “prohibited interest in discretionary contracts” provision under Section 2-58.   As noted in the inquiry, less than 1 year has elapsed since he left city service.  Accordingly, Section 2-58 would prohibit him from entering into a contract with the city to purchase land.[2]

IV. Conclusion

A former city officer cannot enter into a discretionary contract with the city for the sale of real estate if less than 1 year has elapsed since the officer has left city service. 



[1]   Management-level employees who are required to submit annual financial disclosure reports under Section 2-73(a) of the Ethics Code are subject to the “prohibited interests in contracts” provisions of Section 141 of the City Charter and Section 2-52 of the Ethics Code  as well as the “prohibited interest in discretionary contracts” provision of Section 2-58 of the Ethics Code.

[2]   Section 2-58(c)(3) provides an exception that allows former city officers and management level employees subject to Section 2-58 to enter into contracts with the city to perform professional services.   Because the transaction under consideration in this inquiry is for the sale of real estate, this “professional services” exception would not apply.