City of San Antonio, Texas
Ethics Advisory Opinion No. 2011-04
May 31, 2011
Issued By: City Attorney’s Office
May a former city employee enter into a discretionary contract with the City within one year of the termination of their employment with the City?
A city department would like to award a discretionary contract to a former city employee for their services in writing and compiling information for a federal grant proposal. The department has asked if the former employee is prohibited from performing work for the city within one year of their termination from city employment.
III. The Ethics Code:
A. Subsequent Representation of Private Interests
Section 2-56 Subsequent Representation of Private Interests prohibits former city employees from representing any person, private group, or private entity, other than himself of herself, their spouse or minor children, for compensation within two years following termination of his or her official duties with the City.
The City department anticipates entering into a discretionary contract with the former employee directly, and not a private group or entity. Therefore, it is permissible for the a former city employee to represent themselves with regard to a private interest in a contract with the City.
B. Prior Participation in the Negotiation, Award or Administration of Contracts
Section 2-57 of the Ethics Code states that a former employee may not perform work on a compensated basis relating to a discretionary contract if he or she personally and substantially participated in the negotiation, award or administration of the contract. In this instance it does not appear that this contract was contemplated, negotiated, awarded or administered prior to the date that the party in question ceased to work for the City. As such this does not seem to be applicable to this situation.
C. Prohibited interest in discretionary contracts.
Section 2-58 (a) prohibits former city officers or employees from having a financial interest, directly or indirectly, in any discretionary contract with the city, and from having a financial interest, directly or indirectly, in the sale to the city of any land, materials, supplies, or service, within one year of the termination of their official duties. 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. 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, if the former officer or employee, their spouse or minor child, or a business entity in which the former officer or employee owns a requisite amount of the business entity is a party to the contract or sale.
On its face, this section would seem to disallow a former employee from a discretionary contract with the City for one year following their end of employment. However, the definitions in 2-58(c) clarify that a "former city employee" (for purposes of this section) is a person who prior to the termination of employment was required to file a financial disclosure statement pursuant to section 2-73(a).
Section 2-73(a) refers to those employees required to submit the longer financial disclosure form. Those employees are city officials. This former employee was not a city official, and was not required to submit the long financial disclosure statement. Therefore, the prohibitions on discretionary contracts would not apply to the former employee.