Ethics Advisory Opinion No. 2009-03
March 6, 2009
Issued By: City Attorney’s Office
May an employee accept outside employment with another entity performing work similar to that which he provides to the city?
A city employee has been assigned to provide information technology services for his department. This employee has been offered employment outside the city involving similar work and has inquired whether the Ethics Code would prohibit him from accepting this extra job. He has advised the outside employment would take place on his personal time and will not involve the use of any city resource.
III. The Ethics Code and Personnel Rules
A. The Ethics Code Prohibits Outside Employment that Impairs or is Related to the Employee’s City Responsibilities
Outside employment for city employees is governed by both the Ethics Code and the Personnel Rules. Ethics Code Section 2-48 (Conflicting Outside Employment) provides:
(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 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 requirements for obtaining prior approval of outside employment as applicable.
The employee has indicated he does not anticipate his outside employment would interfere with his city responsibilities. However, he also indicated that the outside contract would involve work similar in nature to his city employment. Although similar in nature, the facts presented regarding the employee’s outside employment do not suggest that it would overlap or connect in any way to his work for the city. Accordingly, the Ethics Code would not preclude the employee from engaging in this outside employment.
B. Public Property and Resources
Under Section 2-49 of the Ethics Code, a city official or employee cannot use, request or permit the use of city facilities, personnel, equipment or supplies for private purposes except to the extent and according to the terms that those resources are lawfully available to the public. The employee, therefore, cannot use any city resource, including the time which he is scheduled to work for the city, for a private purpose, including attending to his outside employment.
C. Employees Must Obtain Approval of Outside Employment from their Department Director under Personnel Rules
Personnel Rule XXIV requires an employee to obtain written approval from his department before engaging in the outside employment. The department director may approve the request if he believes the outside employment will not impair or interfere with the employee’s city responsibilities. However, the director has the authority to decline to provide approval for the reasons he or she deems appropriate
Under the facts and circumstances presented in this inquiry, the Ethics Code would not prohibit the employee from accepting outside employment that is similar to, but not related to, his work for the city. He is required under the Personnel Rules, however, to obtain written approval from his department director to engage in this additional employment. Further, he must not use any city resource, including his own duty time, in connection with this outside endeavor.