HomeMy WebLinkAbout87-556 RoathMr. Howard Roath
Department of Revenue
2850 Turnpike Industrial Drive
Middletown, PA 17057
Dear Mr. Roath:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 4, 1987
ADVICE OF COUNSEL
87 -556
Re: Former Public Employee; Section 3(e), Director of Marketing, Pennsylvania
State Lottery
This responds to your letter of April 20, 1987, 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.
Facts: You currently serve as the director of marketing for the Pennsylvania
State Lottery in the Department of Revenue. On May 4, 1987 you will terminate
your employment with that entity to assume the position of director of
marketing for Webcraft Games, in North Brunswick, New Jersey. In that
position you will be responsible for servicing State lottery organizations
throughout the United States. Your responsibility will be to provide
supplemental data and information to the organizations to assist with the
impl ementation of instant games and to work with the development of new
lottery products.
In your position with the Pennsylvania State Lottery your work was
conducted under the limited supervision of the deputy executive director of
the Pennsylvania State Lottery. You were authorized, in that position, to
render important decisions on marketing matters and you were given wide
latitude in relation to that responsibility. You were mainly responsible for
the successful accomplishment of the division's rimar
p y goal of promoting
lottery ticket sales, determining suitable ticket outlets, designating sales
material and types of advertising, and implementing marketing techniques. You
directed a work force of 84 personnel located in the central headquarters as
well as in field locations throughout the Commonwealth. You were responsible
for preparing comprehensive marketing plans to increase sales and
productivity. In your position you were responsible for developing inovative
methods designed to promote lottery ticket sales, establishing and insuring
the implementation of advanced modern marketing techniques. You were also
Mr. Howard Roath
May 4, 1987
Page 2
responsible for long -range planning to develop new marketing products. You
participated with other lottery bureau executives on committee type projects
to formulate suggestions /acquisitions of new types of lotteries. You also
were responsible for planning and developing lottery retailer promotions and
games and also for establishing prizes within guidelines established by the
executive director of the lottery bureau. You also performed other major
responsibilities as required. We have reviewed your job description and
have incorporated that document herein by reference. You have requested the
advice of the State Ethics Commission regarding what, if any, restrictions
would be placed upon you within the purview of the State Ethics Act following
your termination of employment with the Pennsylvania Department of Revenue.
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 of marketing for the Pennsylvania State Lottery,
Pennsylvania Department of Revenue, 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; Schaffer, 85 -585.
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 of
Revenue, hereinafter 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
Mr. Howard Roath
May 4, 1987
Page 3
"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
Ewin9_, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics
ommission, 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 within the Bureau of the
Pennsylvania State Lottery, hereinafter the Bureau. This is so especially in
light of your wide ranging responsibilities in relation to planning,
coordinating, directing and controlling the marketing efforts of that entity.
Thus, the "governmental body" with which you have been "associated" upon the
termination of your employment would be 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 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.
Mr. Howard Roath
May 4, 1987
Page 4
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 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.
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
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 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.
In addition to the above provisions of law, the State Ethics Act also
provides as follows:
Mr. Howard Roath
May 4, 1987
Page 5
Section 3. Restricted activities.
(g) No former executive -level State employee may for a
period of two years from the time that he terminates his
State employment be employed by, receive compensation
from, assist or act in a representative capacity for a
business or corporation that he actively participates in
recruiting to the Commonwealth of Pennsylvania or that he
actively participated in inducing to open a new plant,
facility or branch in the Commonwealth or that he actively
participated in inducing to expand an existent plant or
facility within the Commonwealth, provided that the above
prohibition shall be invoked only when the recruitment or
inducement is accomplished by a grant or loan of money or
a promise of a grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand. 65 P.S. 403(g).
The Act defines executive -level state employee as follows:
Section 2. Definitions.
"Executive -level State employee." The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor's office staff, any State employee with
discretionary powers which may affect the outcome of a
State agency's decision in relation to a private
corporation or business or any employee who by virtue of
his job function could influence the outcome of such a
deicison. 65 P.S. 402.
You are advised as to the above provision of law, in that if you have
participated in the type of activity outlined in section 3(g) you would be
prohibited for a period of two years from being employed by any entity falling
into the above category.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
Conclusion: As a director of marketing for the Pennsylvania State Lottery,
you are to be considered a "public employee" as defined in the Ethics Act.
Upon termination of your service with the Pennsylvania Department of Revenue,
you would become a "former public employee" subject to the restrictions
Mr. Howard Roath
May 4, 1987
Page 6
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 Bureau of the State lottery.
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
service.
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
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.
Sincer
, zJohn J. Contino
Acting General Counsel