HomeMy WebLinkAbout85-008 NelsonMr. Lynn R. Nelson, Executive Director
Pennsylvania State Lottery
Department of Revenue
P.O. Box 8671
Harrisburg, PA 17105 -8671
Re: Former Public Official; Section 3(e), Executive Director, Pennsylvania
State Lottery
Dear Mr. Nelson:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
June 11, 1985
OPINION OF THE COMMISSION
85 -008
This responds to your letter of April 12, 1985, in which you requested
advice from the State Ethics Commission.
I. 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.
II. Factual Basis for Determination:
You currently serve as the Executive Director of the Pennsylvania State
Lottery, within the Pennsylvania Department of Revenue, hereinafter the
Department. In this position you are directly responsible to the Secretary of
Revenue from whom you receive general policy guidance. We have reviewed your
position discription and have incorporated that document herein by reference.
In your current position you direct a work force of approximately 240
individuals throughout the Commonwealth. You are responsible for establishing
priorities, controls and procedures to establish the efficient utilization of
resources so as to insure the effective accomplishment of the Department's
objectives.
You work in conjunction with senior officials of the Department, other
departments, commissions and agencies in order to resolve difficult or
highly- complex problems, to expedite the approval of pending projects and to
insure efficient expenditure of funds. You also prepare and direct the
preparation and make formal presentations of recommendations, studies and
surveys. In addition to the foregoing, you formulate policy and resolve major
policy and administrative problems. You are responsible for product research
P1r. Lynn R. Nelson
June 11. 1985
Page 2
?nd development, ob':aining commer:.ial consulting services and recommending
contractual commitments. You serve as primary spokesperon for the Bureau of
State Lotteries and you act as a liaison with other officials, agencies and
associations throughout tLe county.
Finally, you serve with the Secretary and Deputy Secre.aries as a member
of the Executive Committee for the Department of Revenue to oversee the
activities of the Department in general. You also, serve as member of the
Electronic Data Processing Planning Committee and the ;audit Review Committee.
You will be retiring from your position effective May 31, 1985. It is
your intention to enter into consulting contracts with one or more vendors of
lottery services including those now providing services to the Commonwealtf
You indicate that you have taken the following actions in relation to
your retirement and subsequent plans:
You have disclosed your intentions to the
Secretary of Revenue.
You have disqualified yourself from any pending
procurement actions, and will make no recommendations
regarding them, or relating to the amendment or
extension of existing contracts.
You have agreed to forego commitments for either
employment or consulting services with vendors
currently supplying the Pennsylvania State Lottery,
or with any vendor in the Lottery industry generally
until after the effective date of your retirement.
You ask what, if any, additional restrictions may be placed upon you by
virtue of the State Ethics Act.
III;_ 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
Inte Act or the Governor's Code of Conduct.
As the Executive Director for the Pennsylvania State Lottery, within the
Department, you are to be considered a "public official" 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
Mr. Lynn R. Nelson
June 11, 1985
Page 3
non- ministerial nature with respect to contracting, procurement, planni,lq,
inspecting or other activities where the economic impact is greater than de
minimus on the interests of another person. See Roberts, 84 -531; Rodma;i
83 -503.
Consequently, upon termination of this employment, you would become a
"former public official" 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 TOFFITssion, 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
Department. This is so especially in light of your position as a member of
the Executive Committee for the Department where you were responsible, along
with other officials, for the general oversight of the Department's
activities. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the Department.
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 Department. Additionally, your
position description references to your function which included working with
other departments, commissions, and agencies. In the event that you exercised
any responsibility relating to such other governmental entities your
governmental body may extend to such entities. If there are additional
questions that arise in relation to this issue, you may wish to seek the
further advice of the Commission.
Mr. Lynn R. Nelson
June 11, 1985
Page 4
The Lihi,s Act would not affect your ability to appear before agencies or
entitle; other than with respect to the Department. Likewise, there is no
yenern7 limitation on the type of employment in which you may engage,
fel ioi' g your departure from the Department. We do note, ho ever, that the
;cnfll cts of interest law is primarily concerned with financial conflicts and
�icilations 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 eebiic trust and upon departure from the public sector, that individual
sh.ou?i eot be allowed to utilize his association with the public sector,
cfficia's nr employees to secure for himself or a new employer, treatment or
benefits that may be obtainable only because of his association with his
former peb;?c employer. See Anderson, 83 -014; Zwikl, 85 -004.
With respect to the one year representation restriction, the Ethics
Commission has promulgated regulations to define "representation" as . ollaws:
Section 1.1. Definitions.
L2presentation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
s'bmitting bid or contract proposals which are signed by
on contain the name of the former public official or
puhiic 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
whica you have been associated, (that is the Department, includng, but not
limited to, negotiations or renegotiations on contracts with the Department;
2. Attempts to influence the Department;
3. Participating in any matters before the Department over w'ric you had
supervision, direct involvement, or responsibility while employed Ly the
Dep rtmF,nL
4. Lobbying, that is representing the interests of any perse or
employer before the Department in relation to legislation, regulations, etc.
See Ressell, 80 -048 and Seltzer, 80 -044.
The Commission:, has also held that preparing and signing a propo al,
document or bid, or listing 3/cue name a , the person whc wi it p :.vide technical
assistance on sucn proposal, document, or bid, if submitte to or reviewed by
Mr. Lynn R. Nelson
June 11, 1985
Page 5
the Department, constitutes an attempt to influence your former governmen'
body. See Kilareski, 80 -054. Therefore, within the first year after you
leave the Department, you would be prohibited from engaging in the type of
activity outlined above.
You may, assist in the preparation of any documents presented to the
Department so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Department.
Once again, however, your activity in this respect should not be re7ealed to
the Department. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Department 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 Department your
representation of, or work for your new employer. In addition to the
foregoing, and in order to be complete, you should also be aware of the
special provisions of the Ethics Act relating to executive -level employees.
In this respect the Act provides that:
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).
Executive -level State employee is defined as:
Section 2. Definitions.
"Executive -level State employee." The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor's office staff, any State employee with
Mr. Lynn R.. Nelson
June 11, 198
Page 6
discretionary powers whi {cn 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, as Executive Director of the Pennsylvania State Lottery :rithin the
Department, are clearly within this defl
Thus, if you have to any extent partic :pates in the recruiting of any
corporation to initiate operations, open a new plant, facility or branch in
the Commonwealth and Commonwealth funds were employed as an inducement,
therefore, you would be prohibited for a period of two years from t:ie date of
your termination from being employed by that corporation.
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, 30 -056 and
Beaser, 81 -538.
IV. Conclusion:
As ar Executive Director for the Pennsylvania State Lottery, you are to
be considered a "public official" as defined in the Ethics Act. Upon
termination of your service with the Department, you would become a "former
public official" subject to the restrictions imposed by Section 3(e) of the
Ethics Act. Additionally, as an executive level employee, you would be
subject to the provisions of Section 3(g) of the Act. As such, your conduct
should conform to the requirements of the Ethics Act as outlined above.
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)(i), this opinion is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance of the advice given.
Mr. Lynn R. Nelson
June ]_1, 1985
Page 7
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting reconside-
ration should present a detailed explanation setting forth the reasons why the
opinion requires reconsideration.
JJC /sfb
By the Commission,
Dr. Leon L. Haley
Vice - Chairman