HomeMy WebLinkAbout13-2003 Benestad
DETERMINATION OF THE COMMISSION
Before: John J. Bolger, Chair
Nicholas A. Colafella, Vice Chair
Raquel K. Bergen
Mark R. Corrigan
Roger Nick
Kathryn Streeter Lewis
DATE DECIDED: 10/9/13
DATE MAILED: 10/23/13
13-2003
Brian P. Benestad, Esquire
Maiello Bruno & Maiello, LLP
One Churchill Park
3301 McCrady Road
Pittsburgh, PA 15235
Dear Mr. Benestad:
This is in response to a letter dated August 13, 2013, received from your client,
Adam W. Komorowski (“Mr. Komorowski”), by which Mr. Komorowski requested a
determination from this Commission pursuant to Section 1512(a.5)(1) of the
Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. §
1512(a.5)(1).
I.ISSUE:
Whether Mr. Komorowski’s service as a Pennsylvania constable would bring him
within the definitions of the terms “executive-level public employee” or “public official” as
set forth in the Gaming Act at 4 Pa.C.S. §§ 1103, 1512(b), and therefore cause him to
be subject to the restrictions of the Gaming Act at 4 Pa.C.S. § 1512(a), (a.1) and (a.2).
II.FACTUAL BASIS FOR DETERMINATION:
Mr. Komorowski presently serves as a Pennsylvania Constable. Mr. Komorowski
also is presently employed as a Security Officer with The Meadows Racetrack & Casino
(“Meadows”). Mr. Komorowski has been promoted to the position of Assistant Security
Shift Supervisor with the Meadows subject to approval of his application for a Gaming
Level 2 (G2) Permit.
In conjunction with Mr. Komorowski’s aforesaid permit application, the
Pennsylvania Gaming Control Board, Office of Enforcement Counsel, has requested
that Mr. Komorowski obtain a determination from this Commission pursuant to Section
1512(a.5)(1) of the Gaming Act as to whether his service as a Pennsylvania constable
Benestad/Komorowski, 13-2003
October 23, 2013
Page 2
would cause him to be subject to the restrictions of Section 1512 of the Gaming Act, 4
Pa.C.S. § 1512.
By letter dated September 4, 2013, Mr. Komorowski was notified of the date, time
and location of the public meeting at which his request would be considered.
Subsequently, you entered an appearance as Counsel for Mr. Komorowski. In a
letter memorandum filed September 27, 2013, and at the public meeting on October 9,
2013, you presented legal arguments in support of your position that as a constable, Mr.
Komorowski is not an “executive-level public employee,” “public official,” or “party
officer”—nor is any member of his immediate family—and therefore, Mr. Komorowski is
not subject to the employment restrictions at 4 Pa.C.S. § 1512(a.1).
Having reviewed your legal arguments as well as our own legal research
regarding constables, w e take administrative notice of the following information, which is
relevant to an analysis of Mr. Komorowski’s request.
A constable is an independent contractor and is not an employee of the state,
judiciary, county or municipality in which he or she works. In Re: Act 147 of 1990, 528
Pa. 460, 598 A.2d 985 (1991); Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644
(1983), cert. denied, 465 U.S. 1024, 104 S. Ct. 1279 (1984); Ward v. Commonwealth of
Pennsylvania, Department of Transportation, 65 A.3d 1078 (Pa. Cmwlth. 2013). A
constable does not act for or under the control of the Commonwealth or a political
subdivision. Id.
A constable has no authority to act on behalf of the government unit in which he
works (Ward, supra). A constable must carry his own professional liability insurance,
and the county in which a constable works is not liable through respondeat superior for
the acts of the constable (Id.; 44 Pa.C.S. § 7142(b), (e)). A constable is not a
governmental or quasi-governmental entity under Section 1901(a) of the Vehicle Code
so as to be exempt from having to pay the vehicle registration fee (Ward, supra).
Although elected by the qualified voters of cities, boroughs, and townships (44
Pa.C.S. §§ 7111-7114), constables are not included among the elected officers of
counties (16 P.S. § 401), boroughs (53 P.S. § 45806), first class townships (53 P.S. §
55503), second class townships (53 P.S. § 65402) or third class cities (53 P.S. §
35701). (Pennsylvania’s first class, second class, and second class A cities operate
under home rule charters.)
In reviewing the status of constables under the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., this Commission has observed that
constables are officials of the Commonwealth and not of the political subdivisions in
which they are elected. Confidential Opinion, 92-008. Constables are within the Ethics
Act’s definition of the term “public official,” and they are subject to the restrictions and
requirements of the Ethics Act. Id; Legree, Order 1225; 65 Pa.C.S. § 1102; see also,
(Pennsylvania Unified Judicial System Constable Policies, Procedures and Standards of
Conduct (May 2013), at 14 (pertaining to the requirement for constables and deputy
constables to file Statements of Financial Interests pursuant to the Ethics Act).
Portions of the list published by this Commission pursuant to Section
1512(a.5)(2) of the Gaming Act have included constables as within the Gaming Act’s
definition of the term “public official,” 4 Pa.C.S. § 1512(b), insofar as they have duties
and responsibilities relating to gaming issues, licensing, or other matters under 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
Benestad/Komorowski, 13-2003
October 23, 2013
Page 3
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, this 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.
In addressing Mr. Komorowski’s inquiry, the restrictions of Section 1512(a), (a.1)
and (a.2) of the Gaming Act would only be applicable to Mr. Komorowski if his service
as a constable would bring him within the definitions of the terms “executive-level public
employee” or “public official” as set forth in the Gaming Act at 4 Pa.C.S. §§ 1103,
1512(b).
We initially determine that, as a constable, Mr. Komorowski would not be
considered an “executive-level public employee” under the following definition of that
term set forth in Section 1103 of the Gaming Act:
“Executive-level public employee.”--
The term shall
include the following:
(1) Deputy Secretaries of the Commonwealth 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.
Paragraph 1 of the above definition of the term “executive-level public employee”
would not apply to Mr. Komorowski because it lists particular public positions that Mr.
Komorowski does not hold. Paragraphs 2, 3, and 4 of the above definition would not
apply to Mr. Komorowski because, as a Pennsylvania constable, Mr. Komorowski is an
independent contractor and not an employee. Therefore, as a constable, Mr.
Komorowski would not be considered an “executive-level public employee” as Section
1103 of the Gaming Act defines that term.
Benestad/Komorowski, 13-2003
October 23, 2013
Page 4
We shall now consider whether, as a constable, Mr. Komorowski would be
considered a “public official” under the following definition of that term set forth in
Section 1512(b) of the Gaming Act:
“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
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 and 2 of the above definition of the term “public official” would not
apply to Mr. Komorowski because they list particular public positions that he does not
hold.
Paragraph 3 of the above definition of the term “public official” would not apply to
Mr. Komorowski because the position of Pennsylvania constable is not a county or
municipal office.
In considering paragraphs 4 and 5 of the above definition, the threshold question
is whether Mr. Komorowski would fall within any of the categories of individuals included
in those paragraphs. As a constable, Mr. Komorowski has not been elected/appointed
to a department, agency, board, commission, authority, county or municipality.
As for whether Mr. Komorowski would fall within the remaining category as
having been elected/appointed to a “governmental body,” neither the Gaming Act nor
the Pennsylvania Gaming Control Board’s Regulations under the Gaming Act define the
term “governmental body.” 4 Pa.C.S. §§ 1103, 1512(b); 58 Pa. Code § 401a.1, et seq.
Additionally, the Statutory Construction Act does not define the term “governmental
Benestad/Komorowski, 13-2003
October 23, 2013
Page 5
body,” 1 Pa.C.S. § 1991, and t he Ethics Act’s definition of the term “governmental
body,” 65 Pa.C.S. § 1102, does not apply to Mr. Komorowski’s inquiry under the
Gaming Act.
There are no applicable Pennsylvania judicial decisions defining the term
“governmental body.”
There is a Pennsylvania judicial decision determining that the common and
approved usage of the term “body” connotes plurality and does not refer to just one
individual. In Ristau v. Casey, 647 A.2d 642 (Pa. Cmwlth. 1994), the Commonwealth
Court of Pennsylvania determined, based upon a dictionary definition, that one
individual is not a “body,” and that the Governor as one individual was not a “body” and
therefore not an “agency” as the Sunshine Act defined the latter term.
Based upon the Ristau decision and various dictionary definitions, we similarly
conclude that that the common and approved usage (see, 1 Pa.C.S. § 1903) of the term
“body” refers to a group of persons or things and does not refer to just one individual.
th
See, B’LDat 198 (9 ed. 2009) (defining the term “body” in pertinent
LACKS AW ICTIONARY
part as “[a]n aggregate of individuals or groups” or “a deliberative assembly <legislative
body>”); M-WD(online) (2013)(defining the term “body” in
ERRIAMEBSTER ICTIONARY
pertinent part as “a group of persons or things: as . . . a group of individuals organized
for some purpose <a legislative body>”); AHD
MERICAN ERITAGE ICTIONARY OF THE
EL(online) (2013) (defining the term “body” in pertinent part as “[a]
NGLISH ANGUAGE
group of individuals regarded as an entity; a corporation” or “[a] number of persons,
concepts, or things regarded as a group . . . .”).
In the absence of an applicable statutory, regulatory, or judicially approved
definition that would include an office or officer as a “governmental body,” we conclude
that, for purposes of this Commission’s duties under Section 1512 of the Gaming Act,
the office of constable is not a “governmental body” to which a constable is elected or
appointed. Therefore, neither Paragraph 4 nor Paragraph 5 of the above definition of
the term “public official” would apply to Mr. Komorowski.
Because none of the five numbered paragraphs within the above definition of the
term “public official” would apply to Mr. Komorowski, he would not be considered a
“public official” as that term is defined in Section 1512(b) of the Gaming Act.
The determination of this Commission is that based upon the submitted facts, Mr.
Komorowski’s service as a Pennsylvania constable would not bring him within the
definition of the term “executive-level public employee” as set forth in Section 1103 of
the Gaming Act, 4 Pa.C.S. § 1103, or within the definition of the term “public official” as
set forth in Section 1512(b) of the Gaming Act, 4 Pa.C.S. § 1512(b), and therefore he
would not be subject to the restrictions of Section 1512(a), (a.1) and (a.2) of the Gaming
Act, 4 Pa.C.S. § 1512(a), (a.1) and (a.2).
This determination is limited to addressing the specific question posed under
Section 1512(a.5)(1) of the Gaming Act, 4 Pa.C.S. § 1512(a.5)(1). As noted above,
constables are “public officials” as the Ethics Act defines that term, and constables are
subject to the restrictions and requirements of the Ethics Act.
In accordance with this determination, constables shall be removed from the list
published by this Commission pursuant to Section 1512(a.5)(2) of the Gaming Act, 4
Pa.C.S. § 1512(a.5)(2).
IV.CONCLUSION:
Based upon the submitted facts, the service of Adam W.
Komorowski (“Mr. Komorowski”) as a Pennsylvania constable would not bring him within
the definition of the term “executive-level public employee” as set forth in Section 1103
of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4
Pa.C.S. § 1103, or within the definition of the term “public official” as set forth in Section
Benestad/Komorowski, 13-2003
October 23, 2013
Page 6
1512(b) of the Gaming Act, 4 Pa.C.S. § 1512(b). Therefore Mr. Komorowski would not
be subject to the restrictions of Section 1512(a), (a.1) and (a.2) of the Gaming Act, 4
Pa.C.S. § 1512(a), (a.1) and (a.2).
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,
John J. Bolger
Chair