Ethics Advisory Opinion No. 41

March 24, 2000

Issued By:  City Attorney’s Office

Whether, upon termination with the City, an individual may be employed by a company providing consulting services to the City of San Antonio.

An employee in a City Department has asked whether, upon his termination with the City, he may be employed by a company that provides consulting services to the City of San Antonio.  The following facts are presented:

 An individual is considering terminating his employment with the City.  Currently, his position requires him to, among other things, monitor the day to day activities regarding certain issues before the City, responding to citizens when necessary.  He is also delegated with the task of researching and preparing presentations for various department projects. 

The company in which the individual is considering employment provides consulting services to businesses across the country, including, but not limited to, general planning and environmental assessments.  At the present time, the company is under contract with the City to provide consulting services to the individual’s department.  The City employee neither is the project manager nor was a member of the selection committee that hired this company.  He does, however, contact the company on issues for which he is responsible as a result of his position with the City.  If employed by the company, the individual will work on planning tasks and provide consulting services to other communities.

Moreover, the individual’s spouse is also employed by the City in the same department but in a different division.  Neither he nor his spouse is required to file a financial disclosure form with the City Clerk’s Office.

The issue is whether the individual may be employed by the company upon termination of his City duties. [1] The Ethics Code defines a former City employee as “a person whose duties terminate on or after [January 1, 1999].”  Therefore, should he terminate his City employment, he is subject to the standards of conduct governing former city employees. 

Former City employees are required to abide by three standards of conduct:  (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts.  These three standards are discussed in detail below.

Continuing confidentiality.  As a general rule, a former City employee may not disclose “confidential government information acquired during service as a city . . . employee.”  A City employee, however, is not prohibited from disclosing issues that are no longer confidential by law or that report illegal or unethical conduct to the proper authorities.  Therefore, the individual must refrain from disclosing confidential information received in his position with the City.  This includes any information received as a result of his involvement with the City’s contract(s) involving the company.  Failure to abide by this standard of conduct subjects the former City employee to the penalties set forth in the Code.

Subsequent representation.  Part C, Section 2(b) of the Code prohibits a former City employee from representing for compensation anyone other than himself, his spouse or minor children before the City for two (2) years after termination of his employment with the City.  Representation before the City includes all communications and personal appearances advancing a private interest before City Council, before any City body, and before any City official or employee. This section further prohibits a former City employee from implying that he is able to influence City action as a result of his former position.

Under the facts presented, the individual may not represent the company for compensation before his department or before the City Council for two (2) years from the date of his termination with the City.  Because the company is currently under contract with the City to provide consulting services to his department, the individual must refrain from any involvement in said contract(s) for a period of two (2) years. The individual is also prohibited from inferring  that he is able to influence the City’s action as a result of his previous position. In sum, the individual may obtain employment from the company, but may not participate in any city contract for two (2) years from the date of his termination with the City.

Financial interest in Discretionary Contract or Sale.  Part C, Section 3 of the Code prohibits former City employees from having a financial interest in a contract with the City or its agencies, including SAWS.  Under this section, a former City employee is defined as “any person who, prior to termination of employee status, was required to file a financial disclosure statement.”  This includes those individuals who are City officials and who are in executive pay plan status.  Because neither the individual nor his spouse is required to file such statement, this section does not apply.

SUMMARY

Former City employees are subject to the standards of conduct regarding:  (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts.  Upon termination of his City employment, the individual is prohibited from representing his new employer before the City for a period of two (2) years.  He is not, however, prohibited from accepting such employment.

FRANK J. GARZA
City Attorney