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HomeMy WebLinkAbout10-2001 Sturgeon DETERMINATION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk DATE DECIDED: 6/22/10 DATE MAILED: 7/9/10 10-2001 Thomas K. Sturgeon 3406 Timberglen Drive Imperial, PA 15126 Dear Mr. Sturgeon: This responds to your letters received February 22, 2010, March 10, 2010, and April 7, 2010, by which you requested a determination from this Commission pursuant to the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1101 et seq. I.ISSUES: (1) Whether the duties of an individual who served from April 1, 2007, to December 30, 2009, as the Director of Casino Compliance for the Pennsylvania Gaming Control Board (“Board”) would bring such individual within the scope of the restrictions of Section 1201(h)(13) and/or Section 1512(a.1) of the Gaming Act following his retirement from Commonwealth employment on December 30, 2009; and (2) Whether the individual’s return to work for the Board in 2010 as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) would result in the applicability of the aforesaid restrictions for a longer period of time, where the individual’s duties/authority as an annuitant would be limited to assisting the Board with hiring employees including Casino Compliance Representatives, and specifically interviewing and performing background investigation duties as to such prospective Board employees. II.FACTUAL BASIS FOR DETERMINATION: You request a determination from this Commission pursuant to the Gaming Act based upon the following submitted facts. Sturgeon, 10-2001 July 9, 2010 Page 2 From September 1, 2005, until April 1, 2007, you were employed by the Board as the Deputy Director of the Bureau of Investigations and Enforcement (“BIE”). From April 1, 2007, to December 30, 2009, you were employed by the Board as the Director of Casino Compliance. You retired from Commonwealth employment on December 30, 2009. You have submitted copies of the official Classification Specifications for the aforesaid positions, which documents are incorporated herein by reference. The Classification Specification for your position as Director of Casino Compliance includes, inter alia, the following: Class Summary: The Director for Casino Compliance is responsible for maintaining constant communication with the Casino Compliance Senior Supervisor and Casino Compliance Supervisors assigned to the Casino Compliance bureau. Creating and maintaining a professional relationship with the operators and management staff of the racinos/casinos is critical and imperative. This position is responsible for the supervision of the Casino Compliance Representatives, their work product, training, discipline, and all organizational functions of the Casino Compliance section. The position is responsible for the creation, organization and all other duties associated with the Casino Compliance section. The position is responsible for the creation of all necessary job function, necessary forms, and all required reporting systems. Position is responsible for maintaining the proper number of employees necessary to accomplish the duties assigned to the section. Communication with the other Directors and Deputy Directors is a key job function. The overall performance of the Casino Compliance section is the responsibility of the Director of Casino Compliance. The Director of Casino Compliance reports to the Executive Director of the PGCB. Examples of Work May Include but Are Not Limited To: Supervises the daily activities of the Casino Compliance Bureau. Responsible for overseeing Casino Compliance Representatives. Act as the liaison with the Pennsylvania State Police and assures the referring of criminal activity within the casino. Assist with opening of the casinos especially regarding all regulatory matters. Work closely with BIE attorneys on all enforcement actions. Classification Specification, at 1. Following your retirement, you returned to work for the Board in 2010 as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1). Sturgeon, 10-2001 July 9, 2010 Page 3 Although the submitted facts do not state the specific date that you returned to work as an annuitant, you have submitted a copy of a letter dated December 17, 2009, from the Board’s Director of Human Resources to the State Employees Retirement System, which letter indicated that you would begin your duties as an annuitant with the Board on or about January 4, 2010. The letter further stated that your return to work as an annuitant was necessary due to the potential for table games legislation and the increased demand for recruiting, interviewing and selecting Casino Compliance Representatives in the short term. You state that there are no documents defining your duties/authority in your current annuitant position with the Board. You state that your duties/authority as an annuitant are limited to assisting the Board with hiring employees including Casino Compliance Representatives, and specifically interviewing and performing background investigation duties as to such prospective Board employees. You state that as an annuitant, you have already conducted 30 such interviews, and that three of these interviews have been for the position of Casino Compliance Representative. You have not yet performed background investigation duties. You state that your duties as an annuitant would not include having any contact with any licensee or applicant for a gaming license. You ask whether you would be restricted for a period of one year following your retirement on December 30, 2009, from working with an entity that has applied for a gaming license in Pennsylvania. You state your view that you would be subject to such restrictions for a period of one year. Additionally, you ask whether your return to work for the Board in 2010 as an annuitant would result in the applicability of the restrictions for a longer period of time, so as to extend the time before you could seek employment or consulting work from such a gaming entity. III.DISCUSSION: It is initially noted that determinations under Sections 1201(h)(14) and Section 1512(a.5)(1) of the Gaming Act are issued by the State Ethics Commission to the requester based upon the facts that the requester has submitted. 4 Pa.C.S. §§ 1201(h)(14), 1512(a.5)(1). In issuing the determination based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. Id. A determination only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Id. We shall begin our analysis by reviewing the relevant provisions of the Gaming Act. At the time of your retirement on December 30, 2009, Sections 1201(h)(13)-(15) of the Gaming Act provided as follows: § 1201. Pennsylvania Gaming Control Board established. . . . (h) Qualifications and restrictions.— . . . (13) No employee of the board or individual employed by an independent contractor of the board whose duties substantially involve licensing, Sturgeon, 10-2001 July 9, 2010 Page 4 enforcement or the development or adoption of regulations or policy under this part shall: (i) accept employment with an applicant or licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof, for a period of one year after the termination of the employment relating to the conduct of gaming or contract with the board; or (ii) appear before the board in any hearing or proceeding or participate in any other activity on behalf of any applicant, licensee, permittee or licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof, for a period of two years after termination of the employment or contract with the board. (14) Upon the written request of an employee of the board, the executive branch of the Commonwealth or a political subdivision or of the agency or political subdivision employing an employee, the State Ethics Commission shall determine whether the individual’s duties substantially involve the development or adoption of regulations or policy, licensing or enforcement under this part and shall provide a written determination to the employee to include any prohibition under this paragraph. An individual who relies in good faith on a determination under this paragraph shall not be subject to any penalty for an action taken, provided that all material facts set forth in the request for a determination are correct. (15) If a member, employee or independent contractor of the board violates any provision of this section, the appointing authority or the board may, upon notice and hearing, remove the person from the board, withdraw the appointment or terminate the employment or contract, and the person shall be ineligible for future appointment, employment or contract with the board and for approval of a license or permit under this part for a period of two years thereafter. . . . Act 135 of 2006, Section 2. On January 7, 2010, Act 1 of 2010 was signed into law, amending Sections 1201(h)(13), (14), and (15) of the Gaming Act so that they now provide as follows: § 1201. Pennsylvania Gaming Control Board established. . . . Sturgeon, 10-2001 July 9, 2010 Page 5 (h) Qualifications and restrictions.— . . . (13) The following shall apply to an employee of the board whose duties substantially involve licensing, enforcement, development of law, promulgation of regulations or development of policy, relating to gaming under this part or who has other discretionary authority which may affect or influence the outcome of an action, proceeding or decision under this part, including the executive director, bureau directors and attorneys: (i) The individual may not, for a period of two years following termination of employment, accept employment with or be retained by an applicant or a licensed entity or by an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity. (ii) The individual may not, for a period of two years following termination of employment, appear before the board in a hearing or proceeding or participate in activity on behalf of any applicant, licensee, permittee or licensed entity or on behalf of an affiliate, intermediary, subsidiary or holding company of any applicant, licensee, permittee or licensed entity. (iii) An applicant or a licensed entity or an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity may not, until the expiration of two years following termination of employment, employ or retain the individual. Violation of this subparagraph shall result in termination of the individual’s employment and subject the violator to section 1518(c) (relating to prohibited acts; penalties). (iv) A prospective employee who, upon employment, would be subject to this paragraph must, as a condition of employment, sign an affidavit that the prospective employee will not violate subparagraph (i) or (ii). If the prospective employee fails to sign the affidavit, the board shall rescind any offer of employment and shall not employ the individual. Sturgeon, 10-2001 July 9, 2010 Page 6 . . . (14) The State Ethics Commission shall issue a written determination of whether a person is subject to paragraph (13) or (13.1) upon the written request of the person or the person’s employer or potential employer. A person that relies in good faith on a determination issued under this paragraph shall not be subject to any penalty for an action taken, provided that all material facts set forth in the request for the determination are correct. . . . (15) If a member of the board violates any provision of this section, the appointing authority may remove the person from the board. A member removed under this paragraph shall, for a period of five years following removal, be prohibited from future appointment to the board and shall be prohibited from applying for a license, permit or other authorization under this part and from becoming an independent contractor or registering as a licensed entity representative. . . . Act 1 of 2010, Section 3; 4 Pa.C.S. §§ 1201(h)(13), (14), (15). (See, Act 1 of 2010, §§ 19.4, 21, regarding the timing of the applicability of the amendment of 4 Pa.C.S. § 1201(h)(13)(i) for individuals employed by the Board on the effective date of Section 19.4.) At the time of your retirement on December 30, 2009, Section 1512(a.1) of the Gaming Act provided as follows: § 1512. Financial and employment interests. . . . (a.1) Employment.— Except as may be provided by rule or order of the Pennsylvania Supreme Court, no executive-level public employee, public official or party officer, or an immediate family member thereof, shall be employed by an applicant or a slot machine licensee, manufacturer licensee, supplier licensee or licensed racing entity, or by any holding company, affiliate, intermediary or subsidiary thereof, while the individual is an executive-level public employee, public official or party officer and for one year following termination of the individual’s status as an executive-level public employee, public official or party officer. . . . . Act 135 of 2006, Section 10. Under Act 135 of 2006, the term “executive-level public employee” was defined as follows: Sturgeon, 10-2001 July 9, 2010 Page 7 § 1512. Financial and employment interests. . . . (b) Definitions.— . . . “Executive-level public employee.” The term shall include the following: (1) Deputy Secretaries of the Common- wealth and the Governor’s Office executive staff. (2) An employee of the Executive Branch with discretionary power which may affect or influence the outcome of a State agency’s action or decision and who is involved in the development of regulations or policies relating to a licensed entity or who is involved in other matters under this part. The term shall include an employee with law enforcement authority. (3) An employee of a county or municipality with discretionary powers which may affect or influence the outcome of the county’s or municipality’s action or decision and who is involved in the development of law, regulation or policy relating to a licensed entity or who is involved in other matters under this part. The term shall include an employee with law enforcement authority. (4) An employee of a department, agency, board, commission, authority or other governmental body not included in paragraph (1), (2), or (3) with discretionary power which may affect or influence the outcome of the governmental body’s action or decision and who is involved in the development of regulation or policy relating to a licensed entity or who is involved in other matters under this part. The term shall include an employee with law enforcement authority. . . . Act 135 of 2006, Section 10. On January 7, 2010, Act 1 of 2010 was signed into law, amending Section 1512(a.1) of the Gaming Act so that it now provides as follows: § 1512. Financial and employment interests. . . . (a.1) Employment.— Except as may be provided by rule or order of the Pennsylvania Supreme Court and except as provided in section 1202.1 (relating to code of conduct) or 1512.1 (relating to additional restrictions), no executive-level public employee, public official or party officer, or an Sturgeon, 10-2001 July 9, 2010 Page 8 immediate family member thereof, shall be employed by an applicant or a slot machine licensee, manufacturer licensee, supplier licensee or licensed racing entity, or by any holding company, affiliate, intermediary or subsidiary thereof, while the individual is an executive-level public employee, public official or party officer and for one year following termination of the individual’s status as an executive-level public employee, public official or party officer. . . . Act 1 of 2010, Section 13.4; 4 Pa.C.S. § 1512(a.1). Under Act 1 of 2010, the term “executive-level public employee” is defined as follows: § 1103. Definitions. . . . “Executive-level public employee.” The term shall include the following: (1) Deputy Secretaries of the Common- wealth and the Governor’s Office executive staff. (2) An employee of the executive branch whose duties substantially involve licensing or enforcement under this part, who has discretionary power which may affect or influence the outcome of a Commonwealth agency’s action or decision or who is involved in the development of regulations or policies relating to a licensed entity. The term shall include an employee with law enforcement authority. (3) An employee of a county or municipality with discretionary powers which may affect or influence the outcome of the county’s or municipality’s action or decision related to this part or who is involved in the development of law, regulation or policy relating to matters regulated under this part. The term shall include an employee with law enforcement authority. (4) An employee of a department, agency, board, commission, authority or other governmental body not included in paragraph (1), (2), or (3) with discretionary power which may affect or influence the outcome of the governmental body’s action or decision related to this part or who is involved in the development of regulation or policy relating to matters regulated under this part. The term shall include an employee with law enforcement authority. . . . 4 Pa.C.S. § 1103. Sturgeon, 10-2001 July 9, 2010 Page 9 The determination as to whether a given person’s duties as an employee of the Board would bring such person within the scope of the restrictions of Section 1201(h)(13) and/or Section 1512(a.1) of the Gaming Act is based upon a review of the powers and duties of the position. Typically, such powers and duties will be established by objective sources defining the position, such as a job description, job classification specifications, and organizational chart. To the extent the individual performs additional duties or has additional responsibilities not reflected in the objective sources defining his position, such additional duties and responsibilities shall also be considered as within his scope of authority. Cf., Afragola, Opinion 07-2001. As the Board’s Director of Casino Compliance, your duties included, inter alia: (1) having ultimate responsibility for the functions and performance of the Bureau of Casino Compliance; (2) supervising the Casino Compliance Representatives and their work product; and (3) working closely with BIE attorneys on all enforcement actions. Classification Specification, at 1. Based upon a straightforward reading of the Classification Specification, the necessary conclusion is that your duties as the Director of Casino Compliance for the Board “substantially involved,” that is, “significantly included or affected,” enforcement under the Gaming Act. Cf., Afragola, supra. It is also clear that as the Board’s Director of Casino Compliance, you were an “executive- level public employee” as that term was defined by Act 135 of 2006. Therefore, in response to your first question, we determine that upon retiring on December 30, 2009, from your position as the Board’s Director of Casino Compliance, you became subject to the restrictions of Section 1201(h)(13) as set forth in Act 135 of 2006, Section 2. The restrictions of Section 1201(h)(13)(i) would apply to you for one year following your retirement. The restrictions of Section 1201(h)(13)(ii) would apply to you for two years following your retirement. We further determine that as a former executive-level public employee, you will remain subject to the restrictions of Section 1512(a.1) as set forth in Act 135 of 2006, Section 10, for a period of one year following your December 30, 2009, retirement from the Board. It is clear from the face of Section 1201(h)(13)(i) and Section 1512(a.1) that while the restrictions of those Sections would remain applicable to you, you would be prohibited from accepting employment with or being employed by an entity that has applied for a gaming license in Pennsylvania. However, this Commission lacks statutory jurisdiction to interpret the restrictions of Section 1201(h)(13)(i), Section 1201(h)(13)(ii), or Section 1512(a.1) as set forth in Act 135 of 2006 to determine whether the restrictions would apply with respect to consulting work. It is recommended that you obtain legal advice in that regard. As for your current position as an annuitant, the submitted facts are that your duties/authority as an annuitant are limited to assisting the Board with hiring employees including Casino Compliance Representatives, and specifically interviewing and performing background investigation duties as to such prospective Board employees. We determine that your limited duties and authority as an annuitant would have no impact upon the duration of the applicability of the restrictions of Section 1201(h)(13) or Section 1512(a.1) to you. This determination has addressed the questions posed. The post-termination restrictions of Section 1103(g) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(g), have not been addressed herein. IV.CONCLUSION: Upon retiring on December 30, 2009, from your position as the Director of Casino Compliance for the Pennsylvania Gaming Control Board (“Board”), you became subject Sturgeon, 10-2001 July 9, 2010 Page 10 to the restrictions of Section 1201(h)(13) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”) as set forth in Act 135 of 2006, Section 2. The restrictions of Section 1201(h)(13)(i) would apply to you for one year following your retirement. The restrictions of Section 1201(h)(13)(ii) would apply to you for two years following your retirement. Additionally, as a former “executive-level public employee,” you will remain subject to the restrictions of Section 1512(a.1) as set forth in Act 135 of 2006, Section 10, for a period of one year following your December 30, 2009, retirement from the Board. It is clear from the face of Section 1201(h)(13)(i) and Section 1512(a.1) that while the restrictions of those Sections would remain applicable to you, you would be prohibited from accepting employment with or being employed by an entity that has applied for a gaming license in Pennsylvania. This Commission lacks statutory jurisdiction to interpret the restrictions of Section 1201(h)(13)(i), Section 1201(h)(13)(ii), or Section 1512(a.1) as set forth in Act 135 of 2006 to determine whether the restrictions would apply with respect to consulting work. It is recommended that you obtain legal advice in that regard. Based upon the submitted facts that you returned to work for the Board in 2010 as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1), and that as an annuitant, your duties/authority are limited to assisting the Board with hiring employees including Casino Compliance Representatives, and specifically interviewing and performing background investigation duties as to such prospective Board employees, your limited duties/authority as an annuitant would have no impact upon the duration of the applicability of the restrictions of Section 1201(h)(13) or Section 1512(a.1) to you. An individual who relies in good faith on a determination issued by this Commission as to such individual pursuant to Section 1201(h)(14) and/or Section 1512(a.5)(1) of the Gaming Act shall not be subject to any penalty for an action taken in reliance on the determination, provided that all material facts are accurately set forth in the request for a determination. . This determination is a public record and will be made available as such By the Commission, Louis W. Fryman Chair Vice Chair John J. Bolger dissents.