City of San Antonio, Texas
Ethics Advisory Opinion No. 2010-10
December 10, 2010
Issued By: City Attorney’s Office
Is a campaign contribution from an attorney made before he or she was retained to assist in seeking a “high-profile” contract with the city a violation of the contribution “black out” provision of the city’s Municipal Campaign Finance Regulations?
The city’s Municipal Campaign Finance Regulations prohibit individuals and entities associated with seeking “high-profile” contracts with the city from making campaign or officeholder contributions from the 10th business day after the solicitation is released until 30 calendar days after the contract is awarded. This prohibition extends to attorneys, lobbyists or consultants hired by the would-be contractor for the purpose of assisting in seeking the contract. City staff inquires whether a contribution made by the attorney, lobbyist or consultant made before that individual was retained would violate this prohibition.
III. Black-Out Period for Contributions for “High-Profile” Contracts
Under Section 2-309, individuals or entities seeking “high-profile” city contracts are prohibited from making campaign or officeholder contributions from the 10th business day after a solicitation is released until 30 days after the contract is awarded. Violation of this provision renders the individual or entity ineligible to receive the contract. Section 2-309 states in relevant part:
Sec. 2-309 Contribution Prohibitions
(a) When an individual or entity seeks to obtain a “high-profile” discretionary contract as designated by the city, the following individuals shall not make a political contribution to any councilmember or candidate or political action committee that supports or opposes a city councilmember or candidate from the 10th business day after the Request for Proposal (RFP) or Request for Qualifications (RFQ) or other solicitation is released, or for a contract for which no competitive solicitation has been issued by the city from the time the city begins negotiations or discussions, and ending on the 30th calendar day following the contract award:
1. any individual seeking a high-profile contract;
2. any owner or officer of an entity seeking a high-profile contract;
3. the legal signatory of the high-profile contract;
4. any attorney, lobbyist or consultant hired or retained to assist the individual or entity in seeking a high-profile contract;
5. the spouses of any person listed in 1, 2 or 3 of this subsection.
. . .
(c) If any individual listed in subsection (a) has made a contribution in violation of this section, the city may not award the contract to that person, or to the entity. Any contract awarded in violation of this provision shall be voidable at the discretion of the City Council.
This prohibition is sometimes referred to as the contribution “black-out period.” Its application is limited to only “high-profile” city contracts. The “high-profile” status of a contact is designated by the city department issuing the contract solicitation. Criteria for “high-profile” status can include a value of $1 million or more, technical complexity or high public interest.
City staff has inquired about the application of this provision to attorneys, lobbyists or consultants who made contributions during the “black-out period” but who were not retained by the contract seeker until after the contributions were made. Under Section 2-309, attorneys, lobbyists and consultants who are hired or retained to assist the individual or entity seeking a “high-profile” contract cannot make contributions during the “black-out period.” In this inquiry, the attorney or other consultant would not fall within this category since at the time of the contribution, they had not been hired or retained.
Whether or not an individual has been “hired” or “retained” at the time of the contribution depends on facts and circumstances of the employment. Contact with an attorney or consultant during the “black-out period” and a tacit agreement for that individual to provide services with formal employment to be established after contributions are made could support a finding that the attorney or consultant fell within the prohibited contributor category and render the contract seeker ineligible for the contract.
It is recommended that attorneys, lobbyists or consultants who fall within the specific narrow set of circumstances be prepared to attest that they were first contacted about providing services in connection with the “high-profile” contract after they made the contribution.
IV. ConclusionAttorneys, lobbyists and consultants who are first contacted for employment regarding services connected with a “high-profile” city contract after the contribution “black-out period” has begun, do not fall within the category of a prohibited contributor so long as they were not “hired” or “retained” by the contract seeker at the time of the contribution.