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City of San Antonio, Texas

Ethics Advisory Opinion No. 2011-09
October 3, 2011
Issued By: City Attorney’s Office

I.  Issue

May a former city employee provide professional engineering services as a component of a discretionary contract with the city?

II. Inquiry

A former city employee would like to provide professional engineering assistance on a proposal for a city contract.   The former employee has inquired whether he would be prohibited from providing those services because his employment with the city ended less than a year ago.  He would not be a signatory to the contract with the city, and would not appear before the city to discuss the contract.

III.  The Ethics Code – “Revolving Door” Rules

There are several ethics code provisions that apply to former employees and their interaction with the city after they have left city service.   These provisions are sometimes referred to as the “revolving door” rules, and 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. 

A.        All Former City Officials and 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 official’s or employee’s work for the city must remain confidential. 

B.        Representation of Private Interests before the City

Section 2-56(b) states in relevant part:

Representation Before the City.

(1) A former city official or employee shall not represent for compensation any person, group, or entity, other than himself or herself, or his or her spouse or minor children, before the city for a period of two (2) years after termination of his or her official duties.  ...For purposes of this subsection, the term compensation means money or any other thing of value that is received, or is to be received, in return for or in connection with such representation.

The Ethics Code does not prohibit a former city employee from working for a city contractor or for an employer that has a subcontract on a city contract.  The code does, however, prohibit former employees from representing the new employer’s interests before the city for a period of two years after leaving city employment.

In this inquiry, the former city employee has contemplated undertaking compensated employment with a potential city contractor.   Like any other citizen, he is free to attend public meetings and to observe proceedings, but as a former employee he cannot make representations or interact with city staff regarding this contract.    There is no indication that he has attempted to represent his new employer before the city.

C.        Prior Participation in Negotiating or Awarding of Contracts

Section 2-57 states:

A former city official or employee may not, within two (2) years of the termination of official duties, 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.

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 contract for which he or she did not personally and substantially participate in its negotiation, award, or administration.

In short, a city employee who has been involved in the award, negotiation or the administration of a city contract cannot engage in work regarding that same contract for a private sector employer for two years after leaving city employment.

There is no indication from this inquiry that this former employee had any involvement with the contract at issue prior to leaving city service.   However, the former employee must file a letter with the Office of the City Clerk advising that he is engaged in private employment that involves a city contract, but that he did not work on this contract while he was a city employee.

D.        Prohibited Interest in Discretionary Contracts

Section 2-58 (Prohibited Interests in Discretionary Contracts) states:

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.

This provision applies only to former employees who had been required to fill out the annual financial disclosure form under Section 2-73 of the Ethics Code.   Because this employee was not within the class of employees required to file annual disclosure forms under Section 2-73, this provision does not apply.   Ethics Code, Section 2-58(c)(1).

IV.       Conclusion

The Ethics Code does not preclude a former employee from working for a city contractor, but it does prohibit that individual from representing the interests of the new employer before the city for two years after he or she has left city service.  It also prohibits former employees from working for private employers on contracts that the employee was involved with while still employed by the city.   If the former employee’s work for a private sector employer involves a city contract, he or she must file a letter with the Office of the City Clerk explaining this work and the lack of involvement with the matter while still a city employee.