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HomeMy WebLinkAbout10-2002 Doherty 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: 10/19/10 DATE MAILED: 10/29/10 10-2002 James A. Doherty, III, Esquire Stephen D. Schrier, Esquire Doherty Hayes, LLC Eric G. Fikry, Esquire 1000 Bank Towers Blank Rome LLP 321 Spruce Street One Logan Square th Scranton, PA 18503 130 North 18 Street Philadelphia, PA 19103-6998 Dear Counsel: This is in response to Mr. Doherty’s letters dated August 20, 2010, and August 27, 2010, which 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.ISSUE: Whether an individual serving as a county special prosecutor/assistant district attorney would be considered a “public official” as that term is defined by the Gaming Act at 4 Pa.C.S. § 1512(b), and therefore subject to the restrictions of the Gaming Act at 4 Pa.C.S. §§ 1512(a), (a.1) and (a.2), if the individual is not an employee of the county, but rather, performs such work pursuant to a contract to which the county, the county district attorney’s office, and the individual’s law firm are parties. II.FACTUAL BASIS FOR DETERMINATION: As legal counsel for Bernard A. Yannetti, Esquire (“Mr. Yannetti”), you have been authorized by Mr. Yannetti to request a determination from this Commission pursuant to the Gaming Act based upon the following submitted facts. Mr. Yannetti has filed a Principal Gaming Application as part of the Category-3 Slot Machine License Application of Mason Dixon Resorts, L.P. (“MDR”) before the Pennsylvania Gaming Control Board. At the request of the Pennsylvania Gaming Control Board, Mr. Yannetti seeks a determination from this Commission as to whether, as a Special Prosecutor/Assistant District Attorney for Adams County, Pennsylvania, he would be considered a “public official” as that term is defined by the Gaming Act at 4 Pa.C.S. § 1512(b), and therefore subject to the restrictions of the Gaming Act at 4 Doherty, 10-2002 October 29, 2010 Page 2 Pa.C.S. §§ 1512(a), (a.1) and (a.2), where he is not an employee of Adams County, but rather, performs such work pursuant to a contract (“the Contract”) to which Adams County, the Adams County District Attorney, and the law firm of Hartman and Yannetti (“the Law Firm”) are parties. Mr. Yannetti has held the position of Special Prosecutor with the Adams County District Attorney’s Office since at least 1994. Currently, Mr. Yannetti is primarily responsible for handling matters regarding support issues, juvenile court and motor vehicle violations. You have submitted a copy of the Contract, which is dated January 3, 2005. Per the Contract, the Law Firm is to provide professional legal services to Adams County as an independent contractor working under the supervision of the Adams County District Attorney. Counsel from the Law Firm is to be sworn as an Assistant District Attorney with full authority to make prosecutorial decisions subordinate to the Adams County District Attorney. The Contract provides for an initial term of two years, with automatic renewal on a year-to-year basis. You state that the Contract is the only appointing information that Mr. Yannetti possesses regarding his service with the Adams County District Attorney’s Office. On October 12, 2010, this Commission received your Brief with attachments, including an Affidavit of Mr. Yannetti. Mr. Yannetti’s Affidavit states, inter alia, that Mr. Yannetti owns 1% of the non-voting, Class B-2 Limited Partner Units of MDR, and that if MDR is awarded the Category 3 license by the Pennsylvania Gaming Control Board, Mr. Yannetti’s ownership interest in MDR would ultimately increase to 3.4% of the Class B-2 Limited Partner Units. Mr. Yannetti’s Affidavit indicates that as an Assistant District Attorney, Mr. Yannetti does not have, and would not have, any involvement in any matter(s) relating to gaming. In your Brief, you assert that Mr. Yannetti does not fall within certain other categories of individuals subject to the restrictions in question, specifically, executive- level public employees and party officers. With regard to the definition of “public official” as set forth at Section 1512(b) of the Gaming Act, 4 Pa.C.S. § 1512(b), you note that paragraphs 1 and 2 of the definition would not be relevant to your inquiry. With regard to paragraphs 3 and 4 of the definition, you state: “While MDR and Mr. Yannetti are unaware of any distributions of gaming revenue to either Adams County or the Adams County District Attorney to date, for purposes of this letter brief, it is presumed that the conditions set forth in Subsections (3) and (4) of § 1512(b) would be satisfied if the [Pennsylvania Gaming Control Board] were to award a Category 3 license to MDR, since under such circumstances, Adams County would be eligible to receive distributions of gaming revenue as a county hosting a licensed facility.” Brief, at 8 (Citation omitted). As for paragraph 5 of the definition, you assert that as an Assistant District Attorney, Mr. Yannetti does not have, and would not have, any involvement in any matter(s) relating to the Gaming Act. At the public meeting on October 19, 2010, Mr. Fikry and Mr. Yannetti appeared and offered commentary that may be fairly summarized as follows. Mr. Fikry submitted a letter from the Adams County District Attorney in support of Mr. Yannetti’s aforesaid Affidavit. Mr. Fikry stated that the categories of “executive-level public employee” and “party official” do not apply to Mr. Yannetti, and that the instant matter focuses upon whether Mr. Yannetti is a “public official” for purposes of the Gaming Act. Mr. Fikry stated that Mr. Yannetti does not make policy decisions or have discretionary authority within the Adams County District Attorney’s Office. Mr. Fikry stated that Mr. Yannetti does not have any powers or regulatory authority over gaming issues or entities licensed by the Pennsylvania Gaming Control Board, and that Mr. Yannetti’s responsibilities are confined to matters involving juveniles—particularly enforcement of child support orders—and motor vehicle matters. Doherty, 10-2002 October 29, 2010 Page 3 Mr. Yannetti stated that the Contract is with the Law Firm and that he was never appointed to any position. Mr. Yannetti stated that he does not recall ever being sworn as an Assistant District Attorney. Mr. Yannetti stated that either he or his partner may fulfill the required hours of services to the County, and that his partner has done so on occasion. Mr. Yannetti stated that the Law Firm receives a 1099 form as to compensation for services provided by Mr. Yannetti. Mr. Fikry stated that because there is no casino in Adams County at this time, the requesters are not aware of any gaming revenues flowing to Adams County or the Adams County District Attorney’s Office. Mr. Fikry acknowledged that if there would be a casino in Adams County, then Adams County—but not necessarily the Adams County District Attorney’s Office—would receive distribution(s) of revenue pursuant to the Gaming Act. III.DISCUSSION: It is initially noted that determinations under 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. § 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. Section 1512(b) of the Gaming Act defines the term “public official” as follows: “Public official.” The term shall include the following: (1) The Governor, Lieutenant Governor, a member of the Governor’s cabinet, Treasurer, Auditor General and Attorney General of the Commonwealth. (2) A member of the Senate or House of Representatives of the Commonwealth. (3) An individual elected or appointed to any office of a county or municipality that directly receives a distribution of revenue under this part. (4) An individual elected or appointed to a department, agency, board, commission, authority or other governmental body not included in paragraph (1), (2) or (3) that directly receives a distribution of revenue under this part. (5) An individual elected or appointed to a department, agency, board, commission, authority, county, municipality or other governmental body not included in paragraph (1), (2) or (3) with discretionary power which may influence or affect the outcome of an 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 does not include a member of a school board or an individual who held an uncompensated office with a governmental body prior to January 1, 2006, and who no longer holds the office as of January 1, 2006. The term Doherty, 10-2002 October 29, 2010 Page 4 includes a member of an advisory board or commission which makes recommendations relating to a licensed facility. 4 Pa.C.S. § 1512 (b). Paragraphs 1-2 of the Gaming Act’s definition of the term “public official” clearly would not apply to Mr. Yannetti. P aragraphs 3-5 of the definition could not apply to Mr. Yannetti unless: (1) Adams County or the Adams County District Attorney’s Office would directly receive a distribution of revenue under the Gaming Act; or (2) Mr. Yannetti’s duties as an Assistant District Attorney would include involvement in matter(s) relating to the Gaming Act. We note that your submission lacks certain material facts that could impact an analysis of Mr. Yannetti’s future status if MDR’s application for a gaming license would be approved. Specifically, the submitted facts do not indicate whether Mr. Yannetti as an Assistant District Attorney was appointed pursuant to Section 1420(a) or Section 1420(b) of the County Code, 16 P.S. §§ 1420(a), (b). Therefore, we are limited to issuing a determination that as of the time of issuance of this determination, Mr. Yannetti is not a public official as that term is defined by Section 1512(b) of the Gaming Act because, based upon the submitted facts, neither Adams County nor the Adams County District Attorney’s Office has directly received a distribution of revenue under the Gaming Act and Mr. Yannetti’s job duties do not presently include involvement in matter(s) relating to the Gaming Act. Mr. Yannetti may, if he chooses, seek further review by this Commission based upon additional facts to be submitted. This determination is limited to addressing the specific question posed as to whether Mr. Yannetti is a “public official” as that term is defined by the Gaming Act. W e parenthetically note that to be considered an “executive-level public employee” as that term is defined by the Gaming Act, Mr. Yannetti would have to be an employee of Adams County (see, definition of “executive-level public employee,” 4 Pa.C.S. § 1103). IV.CONCLUSION: As of the time of issuance of this determination, Bernard A. Yannetti, Esquire (“Mr. Yannetti”), as a Special Prosecutor/Assistant District Attorney for Adams County, Pennsylvania, is not a “public official” as that term is defined by Section 1512(b) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1512(b), because, based upon the submitted facts, neither Adams County nor the Adams County District Attorney’s Office has directly received a distribution of revenue under the Gaming Act and Mr. Yannetti’s job duties do not presently include involvement in matter(s) relating to the Gaming Act. Mr. Yannetti may, if he chooses, seek further review by this Commission based upon additional facts to be submitted. An individual who relies in good faith on a determination issued by this Commission as to such individual pursuant to 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