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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