Ethics Advisory Opinion No. 13
September 1, 2004
Issued By: The Ethics Review Board
Whether the phrase "termination of his or her official duties" as used in Part C Section 2(b) of the City of San Antonio's Ethics Code means the last day any "official duty" was performed or the last day of employment.
The Ethics Board has been asked to determine whether the two year prohibition on representation before the City began on the last day “official duties” were performed or the date of the requestor’s termination as a city employee.
The requestor states that he terminated all "official duties" with the City Attorney's Office on August 9, 2002. However to accommodate budget concerns of the department, he was carried on the records of the City as an “employee” through October of that year, until his accumulated vacation leave was used up. The individual states that he performed no job duties for the City subsequent to August 9, 2002.
The Ethics Code in Part A, Section 2, Definitions, states that: “Except as provided in Section 10 of Part B (Prohibited Interests in Contracts), Section 4(c) of Part C (Discretionary Contracts), and Part G (Financial Disclosure), the term “employee” or “city employee” is any person listed on the City of San Antonio payroll as an employee, whether part-time or full-time. A “former city official” or “former city employee” is a person whose city duties terminated on or after the effective date of this code.”
The requestor is a person who, prior to termination of employee status, was listed on the City of San Antonio payroll as an employee, and whose City duties terminated after the effective date of the Code, January 1, 1999. His date of official termination as an employee was October 30, 2002. He therefore falls under the jurisdiction of the Code as a former city employee.
Part C of the Code lists the standards of conduct to which a former city official or employee must abide. There are three (3) standards of conduct that apply to former city officials or employees in the provisions of Part C. Those standards of conduct concern: (1) continuing confidentiality; (2) subsequent representation; and (3) discretionary contracts.
The Ethics Code, Part C: Former City Officials and Employees, Section 2, Subsequent Representation, subparagraph (b) Representation Before the City states: “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. This subsection does not apply to a person who was classified as a city official only because he or she was an appointed member of a board or other city body. 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 requestor believes that the Ethics Code’s two (2) year prohibition on representation should end on August 9, 2004. The requestor states that if the Code intended to prohibit an individual from any contact for a period of two (2) years it would simply provide that no former employee could represent a client before the City for two (2) years. He states that the rules of statutory construction assume that words are chosen by the legislature for a reason and have their standard meaning unless defined otherwise, and thus pursuant to such rules, the phrase "official duties" means exactly what it says i.e. the last day of any "official duty" and not the last day of employment. He requests that the Ethics Review Board provide an advisory opinion on this issue.
Based upon the usage of the terms “city employee” as any person listed on the City of San Antonio payroll as an employee, and “former city employee” as a person whose city duties terminated on or after the effective date of the code as found in Part A, Section 2, Definitions, of the Ethics Code; the Ethics Review Board believes that “termination of official duties” equates to “termination of employment.” In this case, the two year prohibition on representation before the City will end on October 30, 2004.
ARTHUR DOWNEY, District 9
DAVID DE LA GARZA
STEVEN G. GENGENBACHER
AUGUST STEPHEN JOHNSON
ELIZABETH BENAVIDES MELSON
BENJAMIN F. YOUNGBLOOD, III