City of San Antonio, Texas
Ethics Advisory Opinion No. 17
March 1, 2005
Issued By: The Ethics Review
Board
Whether an individual who formerly worked for the
City in the Community Action Division of the Department of Community Initiatives
could accept a position as the director for a non-profit organization that
receives funding from the City?
Factual Background
In
January 2005, an individual left employment with the City of San Antonio, where
he had worked as a Senior Management Analyst for the Community Action Division
of the Department of Community Initiatives. In that capacity, one of his
responsibilities was to oversee the preparation of the City’s annual Supportive
Housing Program (SHP) proposal to the United States Department of Housing and
Urban Development (HUD). This is an annual national competition through which
many San Antonio and Bexar County community based programs, including the
American GI Forum’s National Veteran’s Outreach Program (NVOP), receive funding
for homeless services. This former employee asks whether he may accept
employment with the NVOP now that he no longer works for the city.
To
address this question, it is necessary to examine the SHP proposal process. The
SHP grants are competitive at two levels: First, local agencies submit their
proposals to the city. Second, the city prepares a consolidated proposal on
behalf of the “Continuum of Care.” The continuum is an association of private
and public sector agencies that provides services related to homeless issues.
The city’s consolidated proposal is not simply a list of services provided by
these agencies, but also a plan on how these agencies will interact with one
another to most effectively use resources. The city submits the consolidated
proposal to HUD. HUD then reviews such proposals submitted from across the
country.
The
former employee supervised technical review of the proposal to ensure that they
met all HUD requirements. He did not do a qualitative review of the proposals.
All local proposals were then reviewed by a ranking and rating committee, made
up of representatives from homeless or housing agencies, city staff, and
homeless or formerly homeless persons. This committee was approved by an
assistant city manager. The individual concerned was not a member of this
committee. He did, however, oversee the preparation of the consolidated
proposal sent to HUD.
HUD
first reviews the proposals to determine if they reach a threshold score to
receive any funding. If the threshold is not met, none of the proposals that
are part of that consolidated proposal will be funded. If that threshold is
reached, HUD then looks at each individual proposal within each consolidated
proposal and decides whether or not to fund that proposal and at what level. Generally,
HUD tries to fund agencies based upon the ranking determined by the local
ranking and rating Committee, however, they retain the discretion to fund
agencies out of sequence and have done so in the past. Normally this is done to
try to fund more agencies that provide housing services as opposed to those
agencies that provide only support services. Once HUD decides on funding for
the city proposal, its staff develops grant agreements with the city. The City
in turn develops delegate agency contracts with the funded agencies to provide
the services as outlined in the agency proposal. All of these actions are then
approved by City Council through an Ordinance. The City receives 2.5% of the
total funding to administer the programs, while the agencies receive the
remaining 97.5%.
Through
this process, the NVOP was funded to help buy, renovate and operate their
Homeless Veterans Residential Center, which is projected to open in March or
April of 2005. An application for continued funding for operations will have to
be submitted for NVOP to continue to receive HUD funding for the Center.
The individual concerned wishes to accept a position working as the Director of the NVOP’s Residential Center for Homeless Veterans, which is one of the programs funded through the SHP grant process. The Ethics Review Board has been asked to provide an opinion on whether or not this employment would violate the City of San Antonio’s Ethics Ordinance.
The
Ethics Code Provisions
The
Code’s definition of a “former city employee,” is found in Division 1, Section
2-42(p). The individual 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.
Division
3 of the Code lists the standards of conduct to which a former city official or
employee must abide. There are four (4) standards of conduct that apply to
former city officials or employees in the provisions of Division 3. Those standards
of conduct concern: (1) continuing confidentiality; (2) subsequent
representation; (3) prior participation in negotiating or awarding contracts;
and (4) discretionary contracts.[1]
These provisions read as follows:
Division 3: Former City Officials and Employees
Section 2-55 Continuing Confidentiality
A former city official or employee shall not use or disclose confidential government information acquired during service as a city official or employee. This rule does not prohibit:
(a) any disclosure
that is no longer confidential by law; or
(b) the confidential
reporting of illegal or unethical conduct to authorities designated by law.
Section 2-56 Subsequent Representation of Private Interests.
(a) Representation of Private Interests Before the City by a
Former Board Member. A person who was a member of a board or other city body
shall not represent any person, group, or entity for a period of two (2) years
after the termination of his or her official duties:
(1) before that
board or body;
(2) before city
staff having responsibility for making recommendations to, or taking any action
on behalf of, that board or body, unless the board or body is only advisory in
nature; or
(3) before a board or other city body which has appellate jurisdiction over the board or body of which the former city official or employee was a member, if any issue relates to his or her former duties.
(b) Representation of Private Interests Before the City by Former City Officials and Employees. A former city official or employee shall not represent for compensation any person, private group, or private 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.
(c) Improper Representation of Influence. In connection with
the representation of private interests before the city, a former city official
or employee shall not state or imply that he or she is able to influence city
action on any basis other than the merits.
(d) Representation in Litigation Adverse to the City. A
former city official or employee shall not, absent consent from the city,
represent any person, group, or entity, other than himself or herself, or his
or her spouse or minor children, in any litigation to which the city is a
party, if the interests of that person, group, or entity are adverse to the
interests of the city and the matter is one in which the former city official
or employee personally and substantially participated prior to termination of
his or her official duties.
Section 2-57 Prior Participation in Negotiating or Awarding of Contracts
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 or awarding 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 or award. 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.
Opinion
The
Ethics Review Board has examined the SHP funding process and the former
employee’s role related to that process. Section 2-57 of the Ethics Code
provides that a former employee cannot “perform work on a compensated basis
relating to a discretionary contract, if he or she personally and
substantially participated in the negotiation or awarding of the contract.”
Under the facts presented in this inquiry, clearly the employee was
knowledgeable and involved in this process. Also, the SHP-HUD grants appear to
constitute a major source of funding to NVOP, the employee’s prospective
employer. Accordingly, in working for NVOP, the former employee would be
“performing work on a compensated basis” related to the delegate agency
contract between the city and NVOP.
The
former employee’s role in the SHP process however, appears to have been limited
to technical review and preparation of documents related to that procedure. All
substantive decision-making was done by the city’s ranking and review committee
and HUD. The delegate agency contracts between the city and the continuum
agencies were approved by the City Council based on HUD’s decisions on the
consolidated proposals. Because the former employee’s role did not include
substantive decision-making, this employee is not prohibited from accepting
employment with NVOP, even though NVOP’s funding comes primarily from the
SHP-HUD grants.
However,
the employee must remain mindful of Section 2-55 (Confidentiality) and Section
2-56 (Subsequent representation of private interests). Under Section 2-56,
although the former employee may accept employment with NVOP, he cannot
represent NVOP’s interests before the city or before city staff for
compensation for a period of two years after the end of his employment with the
city.
Summary
Under
the facts presented, the former employee may accept employment with the city’s
delegate agency. However, he cannot represent that agency’s interests for
compensation before the city or city staff for a period of two years after
terminating his service with the city.
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ARTHUR DOWNEY, District 9 Chair |
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