HomeMy WebLinkAbout85-585 ShafferMather] Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
October 1, 1985
ADVICE OF COUNSEL
85 - 585
Mr. Ray G. Shaffer, Director
Public Relations •
Pennsylvania State Lottery
P.O. Box 8671
Harrisburg, PA 17105 -8671
Re: Former Public Employee; Section 3(e), Director of Public Relations,
Pennsylvania State Lottery
Dear Mr. Shaffer:
This responds to your letter of September 16, 1985, in which you
requested advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Pennsylvania Department of Revenue, Bureau of State Lottery.
Facts: You currently are employed by the Pennsylvania Department of Revenue,
hereinafter the Department, as the Director of Public Relations for the
Pennsylvania State Lottery Bureau, hereinafter the Bureau. You indicate that
you will be terminating this employment and you ask what, if any, restrictions
are imposed upon your future employment under the State Ethics Act.
In your position you generally work under the supervision of the Deputy
Executive Director of the Bureau.
In this position you were responsible for rendering key decisions on
Public Relations matters, maintaining positive liaison with media
representatives, and performing all duties associated with the various Lottery
Drawings, as well as numerous special promotional activities.
In addition to the foregoing, you also performed as follows:
Acts as Bureau coordinator with the advertising agency in the
development, planning, and execution of promotional and special events such as
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Ray G. Shaffer
October 1, 1985
Page 2
news conferences, and game introductions. Advises agency representatives of
planned activities and changes effecting Public Relations, Drawings, or media
activities. Exercises an approval authority within the parameters of
previ ously desgi ned conceptual approaches.
Coordinates extraordinary Lottery Public Relations activities with the
press offices of the Secretary of Revenue and the Governor.
Organizes, plans, and oversees major news events of the Bureau. Develops
specialized materials and informational pieces for uses during these special
events including press kits, news releases, photos, brochures, and any other
pertinent materials.
Acts as a member of Request for Proposal committees for the Bureau.
Prepares detailed "Operating Procedures" pertaining to all Lottery
Drawings performed by the section. Reviews procedures periodically to insure
accuracy and makes necessary changes to reflect changes and /or modifications
to same.
Maintains up -to -date records regarding the location and condition of all
Lottery Drawing equipment either in active use, or in storage. Periodically
inspects all such equipment and notes records as required.
Oversees the production of all televised Lottery Drawings, including the
pre - drawing rehearsal and security tests, the actual live drawing, and the
post drawing security checks. Insures the integrity of the televised
Drawings as well as adherence to the approved security procedures by all staff
members working the show.
Insures the security of all Lottery equipment and specialized vehicles
assigned to the Public Relations Staff, utilizing specialized test procedures
to insure the integrity of equipment in the field.
Develops promotional ideas and coordinates sales /promotional activities
in support of Marketing division programs. Maintains continuous
communications with Area Parketing Offices to develop local programs
beneficial to Marketing objectives.
You are also instrumental in design, specification and acquisition of
specialized equipment required in the performance of established duties.
You have advised that upon termination of your position, you will be
employed by the Control Data Corporation as an account manager. In this
position you will be responsible for serving State Lottery organizations
throughout the United States.
Mr. Ray G. Shaffer
October 1, 1985
Page 3
Your responsibility will be to provide supplemental data and information
to the organizations, to assist with the implementation of on -line games and
to work with the developement of new lottery products.
Discussion: At the outset, it must be noted that the Ethics Commission may
only address your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obligations that may be imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As a Director for Public Relations for the Bureau, you are to be
considered a "public employee" within the definition of that term as set forth
in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51
Pa. Code §1.1. This conclusion is based upon your job description, which when
reviewed on an objective basis, indicates clearly that you have the power to
take or recommend official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting or other activities where the
economic impact is greater than de minimus on the interests of another person.
See Nelson, 85 -008.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Section 3. Restricted activities.
(e) No former official or public employee shall represent
a person, with or without compensation, on any matter
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with the Department. Then,
we must review the scope of the prohibitions associated with the concept and
term of "representation ". In this context, the Ethics Commission has
previously ruled that the "governmental body" with which an individual may be
deemed to have been associated during his tenure of public office or
employment extends to those entities where he had influence, responsibility,
supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth
of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981).
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been exercised generally within the
Bureau. Thus, the "governmental body" with which you have been "associated"
Mr. Ray G. Shaffer
October 1, 1985
Page 4
upon the termination of your employment would be the Bureau. Specifically,
you performed much of your activity on a Bureau -wide basis and you acted as a
coordinator within the Bureau. In this respect, you were responsible to the
upper level management personnel of the Bureau. Therefore, within the first
year after you would leave the Department, Section 3(e) of the Ethics Act
would apply and restrict your "representation" of persons or new employers
vis -a -vis the Bureau.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Department. We do note,, however, that the conflicts of
interest law is primarily concerned with financial conflicts and violations of
the public trust. The intent of the law generally is that during the term of
a person's public employment he must act consistently with the public trust
and upon departure from the public sector, that individual should not be
allowed to utilize his association with the public sector, officials or
employees to secure for himself or a new employer, treatment or benefits that
may be obtainable only because of his association with his former public
employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction, the Ethics
Commission has promulgated regulations to define "representation" as follows:
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the Bureau, including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau over which you had
supervision, direct involvement, or responsibility while employed by the
Department;
Mr. Ray G. Shaffer
October 1, 1985
Page 5
4. Lobbying, that is representing the interests of any person or
employer before the Bureau in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
The Commission, has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Bureau, constitutes an attempt to influence your former governmental body.
See Kilareski, 80 -054. Therefore, within the first year after you leave the
Department, you should not engage in the type of activity outlined above.
You may, assist in the preparation of Any documents presented to the
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau to
secure information which is available to the general public. See Cutt,
79 -023. This, of course, must not be done in an effort to indirectly
influence these entities or to otherwise make known to the Bureau your
representation of, or work for your new employer.
Finally, the Commission has concluded that if you are administering an
existing contract as opposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Conclusion: As a Director of Public Relations for the Bureau of State
Lotteries, you are to be considered a "public employee" as defined in the
Ethics Act. Upon termination of your service with the Department of Revenue,
you would become a "former public employee" subject to the restrictions
imposed by Section 3(e) of the Ethics Act. As such, your conduct should
conform to the requirements of the Ethics Act as outlined above. Your
governmental body for the purpose of the one year representation restriction
is the State Lottery Bureau.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your termination of
servi ce.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
Mr. Ray G. Shaffer
October 1, 1985
Page 6
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfb
Sincerely,
John J.''Contino
General Counsel