City of San Antonio, Texas
Ethics Advisory Opinion No. 2
May 24, 2000
Issued By: The Ethics Review Board
Whether, upon termination with the City, an individual may have a financial interest in a contract providing consulting services to the City of San Antonio.
A former employee of a City Department has asked whether he may be employed by a company that will provide consulting services to the City of San Antonio. The following facts are presented:
An individual was employed by the City from January 1996 to August 1999. He started in the Economic Development Department and worked there until August 1998, when he moved to the Planning Department. He was not involved in writing the Request For Proposals (RFP) for the contract in question, but was on the Evaluation Panel for a previous RFP last year.
Prior to becoming a City employee, the individual maintained a sole proprietorship city planning consulting practice. He proposes that his firm would team with two other firms to bid on the consulting contract.
The issue is whether the individual may be part of a team bidding on a contract to do business with the City. The Ethics Code defines a former City employee as "a person whose duties terminate on or after [January 1, 1999]." Therefore, 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 acquired while serving in his position with the City. This includes any information received as a result of his involvement with the Cityís contract(s). Failure to abide by this standard of conduct subjects the former City employee to the penalties set forth in the Code. The RFP and the evaluation criteria used in awarding the contract were not confidential.
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 his company or the "team" for compensation before his former department or before the City Council for two (2) years from the date of his termination with the City. Because the "team" is bidding on a contract with the City to provide consulting services to his former department, the individual must refrain from any involvement in the award of said contract(s) for a period of two (2) years from termination. This includes presenting the "teamís" response to the RFP, and negotiating terms or modifications to the contract. The individual is also prohibited from inferring that he is able to influence the Cityís action as a result of his previous position. In sum, the individual may provide services under the terms of the contract once awarded, but may not represent the "team" before City Council, before any City body, and before any City official or employee 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 discretionary 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 pursuant to Section 1(a) of Part G." This includes those individuals who are City officials and who are in executive pay plan status. Because the individual was not required to file such statement, this section does not apply.
Former City employees are subject to the standards of conduct regarding: (1) continuing confidentiality; (2) subsequent representation; and (3) interests in discretionary contracts. The individual is prohibited from representing his firm or "team" before the City for a period of two (2) years. He is not, however, prohibited from providing services under a contract should one be awarded.
Mr. Arthur Downey, Vice-Chair
Mr. Benjamin Youngblood
Mr. John Valdivia