HomeMy WebLinkAbout98-633 FoleyJohn R. Foley
920 Sterling Court
Enola, PA 17025
Dear Mr. Foley:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
December 24, 1998
FAX : (717) 787 - 0806 • Web Site: www.ethics.state.Da.us • e - mail: sec @statepa.us
98 -633
Re: Former Public Employee; Section 1103(g); Deputy Marketing Director of
Corporate Accounts; Administrative Officer 4; Department of Revenue; Lottery;
Marketing Manager; On -line Games Vendor.
This responds to your letter of December 9, 1998 by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act, Act 93 of 1998,
Chapter 11 presents any restrictions upon employment of a Deputy Marketing Director
of Corporate Accounts, classified as an Administrative Officer 4 following termination
of service with the Commonwealth of Pennsylvania, Department of Revenue.
Facts: You are currently employed as the Deputy Marketing Director of
Corporate Accounts, classified as an Administrative Officer 4, for the Commonwealth
of Pennsylvania Department of Revenue.
You are planning to terminate your Commonwealth employment and are
interviewing for a position as a Marketing Manager with Automated Wagering
International, Inc. ( "AWI "), the on -line games vendor for the Pennsylvania Lottery
( "Lottery ") as well as for lotteries in 20 other states. The position of Marketing
Manager involves providing marketing support, games development, and promotional
ideas for AWI's state lottery customers.
As Deputy Marketing Director for Corporate Accounts /Administrative Officer 4,
you report to the Marketing Director, who in turn reports to the Deputy Executive
Director and the Executive Director of the Lottery. You manage a staff which provides
marketing support to retail store chains licensed to sell Lottery tickets, educating them
on the sale of Lottery tickets, and developing promotions, marketing efforts, and
advertising of the chains' as well as the Lottery's products and services. In your
current position, your contact with AWI has been "most routine" and "extremely
limited" to your working from time -to -time with AWI personnel in coordinating
marketing efforts. You state that you have not been involved in selecting AWI as the
Lottery's on -line games provider, in contract negotiations, or in the implementation of
the contract with AWI. Your job description and job specification classification have
been obtained from the Department of Revenue, which documents are incorporated
herein by reference.
Foley, 98 -633
December 24, 1998
Page 2
It is your understanding that the Marketing Manager position will be filled by the
end of the year and ask for an advisory from the State Ethics Commission concerning
your potential employment with AWI.
Discussion: As the Deputy Marketing Director of Corporate Accounts, classified
as an Administrative Officer 4, for the Commonwealth of Pennsylvania Department of
Revenue, you would be considered a "public employee" subject to the Public Official
and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics
Commission. See, Act 93 of 1998, Chapter 11; 51 Pa.Code §11.1. This conclusion
is based upon the job description, which when reviewed on an objective basis,
indicates clearly that the power exists to take or recommend official action of a non -
ministerial nature with respect to one or more of the following: contracting;
procurement; planning; inspecting; administering or monitoring grants; leasing;
regulating; auditing; or other activities where the economic impact is greater than de
minimis on the interests of another person.
Consequently, upon termination of public service, you would become a "former
public employee" subject to Section 1103(g) of the Public Official and Employee Ethics
Act.
While Section 1103(g) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public
official /public employee with regard to "representing" a "person" before "the
governmental body with which he has been associated ":
Section 1103. Restricted activities.
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
Act 93 of 1998, Chapter 11, §1103(g) (emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
Section 1102. Definitions.
"Represent." To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official or
public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or
has been employed or to which the public official or
Foley, 98 -633
December 24, 1998
Page 3
employee is or has been appointed or elected and
subdivisions and offices within that governmental body.
Act 93 of 1998, Chapter 1 1, §1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations
and other businesses. It also includes the former public employee himself, Confidential
Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in anv activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name
of the former public official /public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public
official /public employee on invoices submitted by his new employer to the former
governmental body, even though the invoices pertain to a contract that existed prior
to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing
contract does not involve the unit where the former public employee worked, the name
of the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. Abrams/Webster,
Opinion 95 -01 1.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Act would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to
the general public, but this must not be done in an effort to indirectly influence the
former governmental body or to otherwise make known to that body the
representation of, or work for the new employer.
Section 1 103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official /public employee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination
of public service is the Department of Revenue in its entirety, which includes the
Pennsylvania Lottery. Therefore, for the first year after termination of your service with
the Department of Revenue, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before the Department of Revenue.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1 103(g) only. It is expressly assumed that there has been no
Foley, 98 -633
December 24, 1998
Page 4
use of authority of office for a private pecuniary benefit as prohibited by Section
1 103(a) of the Ethics Act. Further, you are advised that Sections 1 103(b) and 1 103(c)
of the Ethics Act provide in part that no person shall offer to a public official /public
employee and no public official /public employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official action, or
judgment of the public official /public employee would be influenced thereby. Reference
is made to these provisions of the law not to imply that there has been or will be any
transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion: As the Deputy Marketing Director of Corporate Accounts, classified
as an Administrative Officer 4, for the Commonwealth of Pennsylvania Department of
Revenue, you would be considered a "public employee" as defined in the Ethics Act.
Upon termination of service with the Department of Revenue, you would become a
"former public employee" subject to Section 1 103(g) of the Ethics Act. The former
governmental body would be the Department of Revenue. The restrictions as to
representation outlined above must be followed. The propriety of the proposed conduct
has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the
year after termination of service.
Pursuant to Section 1 107(1 1), 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 appeal the Advice to the full Commission. A personal
appearance before the Commission will be scheduled and a formal Opinion will
be issued by the Commission.
Any such appeal must be in writing and must be actually received at the
Commission within thirty (30) days of the date of this Advice pursuant to 51
Pa. Code §13. 2(h ). The appeal may be received at the Commission by hand
delivery, United States mail, delivery service, or by FAX transmission (717 -787-
0806). Failure to file such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
erely,
Vincent J. r opko
Chief Counsel