The City
of
For Former
Officials and Employees
I. Introduction
In November 1998, the City Council enacted the City of
This manual will first discuss the provisions of the Ethics
Code that apply to former officials and employees. The manual then provides a discussion on the
application of these provisions.
II.
The Ethics Code
A. Who are Former Officials and Former
Employees of the City?
1. Who are former “city officials”?
Former “city officials” are
individuals who served the City as:
The
Mayor;
Members
of City Council;
Municipal
Court Judges and Magistrates;
The
City Manager;
Assistant
City Managers;
Assistants
to the City Manager;
City
Clerk;
All
department heads and assistant department heads;
Internal
Auditor and all assistant internal auditors;
Market
Square Superintendent;
Assistant
to City Council;
Assistant
to Mayor;
Secretary
to City Manager;
Executive
Secretaries
Community
Action Manager;
Public
Utilities Supervisor; and
Members of
all boards, commissions, committees, and other bodies created by the City
Council pursuant to federal or state law or City ordinance, including entities
that may be advisory only in nature, who are appointed by City Council or who
are designated in the by-laws or organization papers of the entity to serve on
behalf of the City; and board members of any entity who are appointed by the
City Council to such board membership.
2. Who are former “city employees”?
Former “employees” are individuals who worked for the City
of
The City’s Ethics Code lists the
standards of conduct to which a former city official or employee must
abide. Those standards of conduct
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.
This manual will first list the four standards as set
out in the Code, followed by a discussion of each of these standards and how
they may apply to a former city official or employee.
The Ethics Code states the following:
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.
2) Subsequent Representation of Private Interests Before
the City
(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
(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 by
(1) A former
city official or employee shall not represent for compensation any person,
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.
(2) 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.
3) Prior Participation in Negotiation, Award or Administration of
Contracts
A former
city official or employee may not, within two (2) years of the
termination of official duties for the City, 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 or award.
4) Prohibited Interest in Discretionary Contracts
Note: The following provision regarding Prohibited Interests in
Discretionary Contracts applies only to the former city officers[1] and
former employees who were required to submit a yearly financial disclosure
statement while working with the city.
If you were not an officer or an employee required to submit a financial
disclosure statement, this does not apply to you.[2]
(a) Impermissible Interest in
Discretionary Contract or
(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
(C) a parent or subsidiary business entity.
(b) Exception: Prior
Employment or Status. Notwithstanding [the preceding sections], 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 the [Financial Disclosure Report
requirements].
(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.
III. Application of the Standards of Conduct for
Former Officials and Employees
A. Confidentiality
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 your work for the city
must remain confidential. You may not
disclose confidential information nor use such information to further the private
interests of yourself or another person, organization or entity.
If the information has been made public by another
source, you would no longer be bound to protect the information. Also, you may disclose confidential
information if it is necessary to do so to reveal illegal or unethical conduct to
the authorities designated by law.
This second exception is specifically limited to the reporting of
misconduct to designated authorities.
Note: If
records are made confidential by state or federal law, you must review the
requirements of that law regarding the disclosure of records. You may be subject to laws or regulations on
confidentiality beyond that imposed by the City’s Ethics Code.
Example. A public health nurse has access to and is
familiar with the health records of patients receiving treatment for
tuberculosis. He believes in a
particular case, a fellow city employee has improperly altered records in order
to help the patient obtain unauthorized prescription medicine. Even though the nurse is required by law to
protect the confidentiality of the patient’s records, he may report the
suspected misconduct to the appropriate authorities, such as the police or
medical overview board. The appropriate
authorities would not include the media.
Example: Joe Smith has just retired after working 27
years in the Planning Department. Joe’s
best friend, Ivan, has read in the paper that the city is considering building
a youth sports complex for community recreation. Ivan is thinking about buying property right
next to the lot under consideration for this project. Ivan envisions opening an ice cream parlor
and coffee shop and hopes to get the business of the kids and parents who use
the sports center.
Joe is aware from his work at the
Planning Department that the
city is having second thoughts about putting the complex at that
location because a preliminary inspection of the property showed that there may
be some old gasoline storage tanks buried there. This information is not yet public. Ivan is thinking about putting in an offer
tomorrow morning on the lot next door.
Joe can say nothing to his best friend Ivan about the city’s concerns
about putting the complex at that location.
B. Subsequent
Representation
1. Former Board Members
The Code also addresses the subsequent representation
of interests before the city by former board members. Under this provision, former board members
cannot represent any private interest before their former board for
a period of two years after leaving the board. This restriction extends to contacts with
city staff that worked with that board, if the board was more than advisory in
nature.
Example. Member of the Zoning Commission leaves the
commission and goes to work for an architectural firm. The firm has a client who hopes to rezone
some property from a single-family zone to a commercial zone. The former zoning commissioner cannot
represent that client before the Zoning Commission for a period of two years after
leaving his position with the commission.
He may, however, represent that client before other boards, such as the
Planning Board or the Historic Design and Review Board. Also, after the two years has elapsed, he
may then also represent clients before the Zoning Commission.
2.
a. Representation
of Private Interests
Former city officials and employees are also limited
in the subsequent representation of private interests before the City after
leaving city service. Specifically, a former official or employee cannot represent for
compensation any person, group, or entity other than himself, or
his family before the city for two years
from the date of his termination of employment.
Example. An engineer with the Planning Department
retires after 20 years with the city and goes to work for a homebuilder
contractor. His new employer seeks his
advice on how to apply for zoning variance for a new development. The engineer explains the process. The contractor asks the engineer if he would
mind going to the city and speaking with city staff about the proposed variance
and to represent the company at any Zoning Commission hearings that might be
necessary.
As a paid employee of the
contractor, the engineer cannot contact city staff or appear before the Zoning
Commission for two years after leaving city service. He may, though, provide information and
advice to his employer about city procedures and processes.
Example. This same engineer volunteers on weekends
with a non-profit organization that builds homes for low-income families. The staff of this organization asks the
engineer if he can help fill out building permit forms and whether he can work
with the city in processing the necessary paperwork. The engineer, as a volunteer, receives no
compensation for this work. Because he
is not compensated, the Ethics Code would not prohibit the engineer from
representing the interests of the non-profit organization before city staff or
the city’s decision-making bodies.
Example. A former employee wishes to appear before
City Council to present his personal opinion against a pending ordinance. The Ethics Code would not preclude him from
doing so. He may express his personal opinion
to the city.
However, if the former employee were
being paid by an organization to present this opinion, he would be prohibited
from doing so for two years after leaving employment.
3. Litigation
against the City
Former employees cannot represent third parties in
litigation if the former employee had substantially participated in the
litigation before leaving city service and the litigation is against the city’s
interests.
Example.
Example. Another former assistant city
attorney also accepts employment with the firm.
This attorney had previously worked for the litigation department and
had participated in taking depositions in the sidewalk matter. This attorney would be barred from this
assignment because of his substantial and personal involvement with the case
while working for the city, regardless of the length of time since the attorney
left public service.
C. Discretionary Contracts
1) Working for Employers in the Private
Sector after Leaving City Service
The Code’s provisions may affect former officials or
employees who accept employment with entities that do business with the
city. A former city official or
employee is not prohibited from working for a business that has a contract with
the city. However, that person could not
work for his new employer
1) for compensation;
2) in connection with a discretionary contract;
3) for two years;
4) if
that person had personally and substantially had some involvement with that
contract while working for the city.
Example. An engineer with the Public Works Department
participated in negotiating a contract with a large architectural firm on an
historic building restoration project.
The engineer is considering leaving city service to go to work for this
architectural firm. He may accept
employment with the firm, but could not perform work under the contract between
the firm and the city until two years after leaving city service. The engineer, though, could work on the
project as soon as he left city service as a volunteer, since he would not be
compensated for that work.
If the engineer had not had any
involvement with the contract before leaving the city, he could not only accept
employment with the firm, but also accept an assignment to perform work in
connection with the contract with the city for compensation. However, under this circumstance, the
employee must disclose any work on the city contract. Section 2-57 of the City Code states:
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.
Note, also, that he would still be
prohibited from representing the firm or other private client before the
city for two years after leaving the city.
Example. While still working for the city, the ITSD
employee assisted in negotiating a contract for the city with a large computer
manufacturer to supply PC’s to the city.
During negotiations, the manufacturer asked the employee whether she
would be interested in leaving city employment and coming to work for the
company to help in carrying out the contract.
The Ethics Code would preclude
this employee from working on this contract for this company for two years
after leaving city service. The
employee, though, could accept employment with the city and work on other
assignments with which she did not have any involvement while working for the
city.
Example. The ITSD employee tells the manufacturer
that she is interested in working for the company but explains that she cannot
participate in working on the contract to supply the PC’s for two years. The manufacturer asks the employee if she
could assist in a contract with the city to supply toner for photocopying
machines. The employee has not
participated in any way with the contract regarding toner. Under the Ethics Code, the former employee
may accept employment with the manufacturer and accept the assignment to work
on the toner contract with the city.
As with the example above, the
former employee must file notice with the City Clerk’s Office for two years
disclosing his work in connection with the city contract.
Example. A retired Parks and Recreation Employee
went to work for a landscaping company after leaving city service. The company has a contract with the city to
supply landscaping equipment. That
contract was awarded on a low-bid basis, i.e. it is not a discretionary
contract. The retired employee may go
to work for the company after retiring and may perform work in connection with
the supply contract. This is true even
if the employee participated in the awarding of the contract because this rule
applies only to discretionary contracts.
Also, because it is not a discretionary
contract, he is not required to file notice with the City Clerk that he is
working on a contract with the city.
2. Working for the City on a Contract Basis
after Leaving City Service
The Code also addresses the issue of officials and
employees who are considering working for the city on a contract basis after
leaving city service. If an official or
employee were to negotiate a discretionary services contract with the city
while still employed by the city, that person could not later work on a
compensated basis under that contract for two years.
On the other hand, if that individual left city
employment without negotiating a post-termination employment contract, and
subsequently negotiated a contract for services with the city, then the
prohibition would not apply. Contract
employment under those circumstances would be permissible.
Example. A former employee of the Information and
Technology Services Department developed an expertise in training city staff on
computer technology. After retirement, her
former department found that it could use occasional assistance in providing
computer classes to new employees. The
former employee could, after leaving city service, negotiate and enter into a
contract with the city to teach these classes.
On the other hand, if the employee
negotiated a contract to provide occasional classes for the city before leaving
city service, she would be precluded from performing work under that contract
for a period of two years.
D. Prohibited Interests in Discretionary Contracts
This section applies only to former
city officers[3]
and to former city employees “who, prior to termination of employee status, w[ere] required to file annual financial disclosure
statements.”[4]
This provision prohibits a former city official or one
of the designated employees from having a financial interest, direct or
indirect, in any discretionary[5]
contract with the city for a period of one year from the date of
termination. If the former city official
or employee, a close family member of that person, or a business in which that
person or close family members own more than 10% of the stock or fair market
value became a party to a discretionary contract with the city
within a year of your leaving the Council, that former official or employee
would have a prohibited interest in that contract. If it is determined that the former official
or employee has a prohibited interest in a discretionary contract, that
contract can be voided.
This provision uses a unique definition for the term
"contract" which is applicable only to this section. It defines a “contract” as being any
discretionary contract other than a contract for the personal
services. Therefore, an agreement
or contract by which a former city official provides personal services to the city
would not constitute a contract. This
section, therefore, would not prohibit a former city official from negotiating
with and being compensated by the city under a post-termination retainer
contract for personal services.
Also, this provision does not apply where the person
returns to the same employment or other status that person held before coming
to work for the city.
Example. A former executive secretary starts a
free-lance court reporter business after leaving her city position. The former secretary sees a request for
proposal for stenography services for an upcoming series of hearings before the
Plumbing Appeals and Advisory Board.
Even if two years have not passed since she left city employment, she
may submit an RFP and seek the contract with the city, because the services are
personal in nature.
Example. A former executive secretary leaves her city
position and begins working for her father’s office supply business. She had worked for her father before she had
worked for the city. Her father would like to seek a low-bid contract with the
city to provide label makers. She had
no involvement with the negotiation with the contract before leaving city
employment, nor does she intend to have any involvement with the contract
should her father be successful in being awarded the contract.
This contract would not create a
prohibited interest for her for two reasons.
First, the Ethics Code permits her to return to the same employment
she enjoyed before working for the city.
Second, it is a low-bid contract, i.e. not a discretionary
contract. Because it is not a discretionary
contract, this section does not apply.
Example. Assume her father has a contract with the
city to supply training in the use of label makers and other office equipment. This contract would also not create a
prohibited interest for her because it is a contract for personal
services.
Example. Assume that the former executive secretary’s
father seeks a discretionary contract with the city to supply fax
machine equipment to the Planning Department.
Despite the fact that the
secretary had no personal involvement in the contract while working for the
city, she would have a prohibited interest in this contract if the contract
were awarded within a year of her leaving the city. She would have a prohibited interest because
her father or his business is a party to the contract. Even though she no longer works for the city,
her prohibited interest in this contract could potentially subject her to
sanctions under the Ethics Code and would render her father’s contract with the
city voidable.
Example. For this same executive secretary, assume
that her father owns only 9 percent of this business. The rest of the business is owned by a group
of her father’s friends. None of the
father’s friends are related to the family.
Because her family member owns less than 10% of the business, the
business could seek the discretionary contract to sell fax machine equipment to
the city without creating a prohibited interest for the former executive
secretary.
Example. The executive secretary leaves city service
and goes to work for a large retail office supply business. The secretary is asked to place orders for
paper and envelopes in connection with a contract that the company has with the
city. The company received this
contract from the city while the former executive secretary still worked for
the city, though she had no personal involvement in that contract award.
The secretary does not have a prohibited
interest in this contract since neither she nor any family members are parties
to the contact and because neither she nor her family members have an ownership
interest in the company.
She is not prohibited from working
on the contract even though two years have not passed since she left city
employment, because she did not participate in the awarding of the
contract. She is, though, required to
disclose in writing to the City Clerk’s Office that she is doing work for her
new employer in connection with the city contract. And she could not represent her new
employer’s interests before the city for two years after leaving public
service.
V. Advisory
Opinions
If a city
official or employee is concerned whether anticipated employment, a potential
business opportunity or other activity before or in connection with the city
might present problems under the city’s Ethics Code, those individuals may
contact the City Attorney’s Office for a formal advisory opinion, so long as
the individual is still in city service.
Former
officials and employees must request advisory opinions from the Ethics Review
Board.
A person
cannot obtain an advisory opinion regarding the application of the Code to a
third person. If a former official or
employee has a concern that a third person may have violated the Ethics Code,
that person may wish to consider whether they wish to file an ethics
complaint.
The City
Attorney’s Office and the Ethics Review Board’s advisory opinions are posted on
the city’s Web page, in a manner that does not reveal the identity of the
person making the inquiry.
For a copy
of the Ethics Code, to view advisory opinions by the City Attorney’s Office or
the Ethics Review Board, or to learn how to request advisory opinions, look for
the link on the City of
[1] For purposes of this section only, city “officers” are defined as the Mayor and Members of Council, Municipal Court Judges and Magistrates and members of Boards that are more than advisory in nature.
[2] Employees who are required to file the one-page annual gift report pursuant to Section 2-78 are not included as employees who file financial disclosure reports. Therefore, former employees who were required to file the one-page gift reports are not subject to Section 2-58 regarding the prohibition against an interest in discretionary contracts.
[3] City Officials include:
The
Mayor;
Members
of City Council;
Municipal Court Judges and
Magistrates;
The City Manager;
Assistant City Managers;
Assistants to the City Manager;
City Clerk;
All department heads and assistant
department heads;
Market Square Superintendent;
Assistant to City Council;
Assistant to Mayor;
Secretary to City Manager;
Executive Secretaries
Community Action Manager;
Public Utilities Supervisor; and
Members of all boards, commissions, committees, and other bodies created by the City Council pursuant to federal or state law or City ordinance, including entities that may be advisory only in nature; and board members of any entity who are appointed by the City Council to such board membership.
[4] These officials and employees also required to file financial disclosure statements are:
Police
Department Captains;
Assistant
Police Chiefs;
Deputy
Police Chiefs;
All
appointed Deputy Fire Chiefs;
All
appointed Assistant Fire Chiefs;
Any Assistant Fire Chief who
works in the Fire Administration Building or any other division and is involved
in having input to any contract, vehicle specification, or who is otherwise
involved with the purchasing of any product, service, or land for the Fire
Department;
Any Fire Inspector, Plan
Reviewer or Uniformed Administrator of the Fire Prevention Division;
Any uniformed employee
involved in maintaining Departmental personnel records located at the
Any uniformed personnel
utilized in evaluating or purchasing equipment, vehicles or any other purchases
who also have contact with contractors who provide such equipment or vehicles;
Any uniformed personnel
utilized in providing input to any contract or composing specifications of
equipment and vehicles, who also have contact with contractors who provide such
services, equipment or vehicles.
[5] Current city officials are prohibited from having an interest in any contract with the city, not just discretionary contracts. See Ethics Code Section 2-52.