City of San Antonio, Texas

Ethics Advisory Opinion No. 7

October 2, 2001

Issued By: The Ethics Review Board

Whether a law firm, after hiring a lawyer who is a former City official, may enter into a discretionary contract to provide legal services with the City or any of its related entities, including City Public Service and the San Antonio Water System, in compliance with the Code?

A, B & C is a recently organized law firm. The firm is based in San Antonio and also has offices in Austin, Texas and Washington, D.C. The firm represents public entities, including cities and political subdivisions, as well as nonpublic individuals and business entities.

This firm employed an attorney in late June 2001 as "of counsel." The attorney does not directly or indirectly have any ownership or voting interest in the firm. The attorney is a former city official, as defined in Part A, Section 2 and a former city officer, as defined in Part C, Section 4(c) of the Code, having been a member of the San Antonio Water System (SAWS) Board of Trustees from September 1998 until April 18, 2001.

The newly joined attorney's experience and expertise includes public law, environmental and water law. The attorney is now advising and will continue to advise the firm's public and private clients in those areas. The firm is interested in seeking contracts with the City and City entities, including CPS and the SAWS, prior to the first anniversary of the termination of official duties of the former city official.

There are two issues: first, may the law firm enter into a discretionary contract with the City or any of its related entities, including City Public Service and the San Antonio Water System, to provide legal services; and second, may the attorney who is a former City official be involved in such a contract.

Former City officials are required to abide by four (4) standards of conduct. They concern: (1) continuing confidentiality; (2) subsequent representation; (3) prior participation in negotiating or awarding contracts; and (4) impermissible interests in discretionary contracts. These standards are discussed in detail below.

Section 1 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 Subsequent Representation

(a) Representation 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

  1. 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 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. 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.

  1. 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.

(c) 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 3 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.

Section 4 Discretionary Contracts

(a) Impermissible Interest in Discretionary Contract or Sale. 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. 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. 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, or in the sale to the city of land, materials, supplies, or service, if any of the following individuals or entities is a party to the contract or sale:

(1) the former officer or employee;

(2) his or her parent, child, or spouse;

(3) a business entity in which the former officer or employee, or his or her parent, child or spouse, directly or indirectly owns:

(A) ten (10) percent or more of the voting stock or shares of the business entity, or

(B) ten (10) percent or more of the fair market value of the business entity; or

(4) a business entity of which any individual or entity listed in Subsection (1), (2) or (3) is:

(A) a subcontractor on a city contract;

(B) a partner; or

    1. a parent or subsidiary business entity.
  1. Exception: Prior Employment or Status. Notwithstanding subsection (a) of this Section 4 (Discretionary Contracts) and Section 3 (Prior Participation in Negotiation or Awarding of Contracts), a former city official or employee may upon leaving official duties return to employment or other status enjoyed immediately prior to commencing official city duties.

(c) Definitions. For purposes of this Section:

(1) A "former city employee" is any person who, prior to termination of employee status, was required to file a financial disclosure statement pursuant to Section 1(a) of Part G (Financial Disclosure Report).

(2) A "former city officer" is any person who, immediately prior to termination of official duties, was:

(A) the Mayor or a member of City Council;

(B) a Municipal Court Judge or Magistrate; or

(C) a member of any board or commission which is more than advisory in nature. The term does not include members of the board of another governmental entity even if some or all of these members are appointed by the city.

(3) The term "contract" means any discretionary contract other than a contract for the personal services of the former city official or employee.

(4) The term "service" means any services other than the personal services of the former official or employee.

 

OPINION

It is the opinion of the Ethics Review Board that the A, B & C law firm is not prohibited by any provision in the Code from entering into a discretionary contract with the City or any of its related entities, including City Public Service and the San Antonio Water System, to provide legal services. The Code does not prohibit or restrict this law firm's efforts to seek or hold contracts for legal or consulting services with the City or its entities. The attorney who is a former City official, however, may not represent the firm or clients of the firm for a period of two (2) years after the termination of his official duties before the SAWS board. Additionally, the attorney who is a former City official may not represent the firm or clients of the firm before city staff having responsibility for making recommendations to, or taking any action on behalf of that board, or before a board or other city body which has appellate jurisdiction over the board of which the former city official was a member, if any issue relates to his former duties. The attorney must also comply with the requirement for continued confidentiality.

 

 

 

(signed)___________________________

___________________________

ROSS RODRIGUEZ, District 1

ARTHUR DOWNEY, District 9

 

 

(signed)___________________________

Michael Ariens, Mayor