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HomeMy WebLinkAbout14-2001 Alfano 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: 2/7/14 DATE MAILED: 2/24/14 14-2001 Gaetan J. Alfano, Esquire Pietragallo Gordon Alfano Bosick & Raspanti, LLP 1818 Market Street, Suite 3402 Philadelphia, PA 19103 Dear Mr. Alfano: This is in response to your letters dated January 10, 2014, and January 15, 2014, by which you 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 the service of Pasquale T. Deon, Sr., as a Pennsylvania Turnpike Commissioner and Board Member of the Southeastern Pennsylvania Transportation Authority and Bucks County Industrial Development Authority would bring him within the definition of the term “public official” as set forth in the Gaming Act at 4 Pa.C.S. § 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: You have been authorized by your client, Pasquale T. Deon, Sr. (“Mr. Deon”) to request a determination from this Commission pursuant to Section 1512(a.5)(1) of the Gaming Act, 4 Pa.C.S. § 1512(a.5)(1). Mr. Deon presently serves as a Pennsylvania Turnpike Commissioner and Board Member of the Southeastern Pennsylvania Transportation Authority (“SEPTA”) and Bucks County Industrial Development Authority (“BCIDA”). In a private capacity, Mr. Deon holds preferred stock in Sands Pennsylvania, Inc., and he is required to hold a Principal License with the Pennsylvania Gaming Control Board (“Gaming Control Board”). Mr. Deon’s first Principal License was Alfano/Deon, 14-2001 February 24, 2014 Page 2 approved by the Gaming Control Board in 2008. His license was approved for renewal in 2010 and 2012. His most recent renewal application is currently being processed. To assist the Bureau of Investigation and Enforcement in reviewing Mr. Deon’s renewal application, Mr. Deon has been asked to 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 Turnpike Commissioner and Board Member of SEPTA and BCIDA would bring him within the definition of the term “public official” as set forth in the Gaming Act at 4 Pa.C.S. § 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). In support of your request, you have submitted copies of letters from counsel for the Pennsylvania Turnpike Commission, SEPTA and BCIDA, which state that: (1) While the Gaming Control Board might hold an E-ZPass account now or in the future, the Pennsylvania Turnpike Commission does not otherwise receive a distribution of revenue under the Gaming Act; (2) SEPTA and BCIDA do not receive distributions of revenue under the Gaming Act; and (3) Pennsylvania Turnpike Commissioners and Board Members of SEPTA and BCIDA do not have discretion to influence or affect the outcome of an action or decision under the Gaming Act and are not involved in the development of regulation or policy relating to a licensed entity or other matters contemplated by the Gaming Act. You assert that 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), does not include any of Mr. Deon’s aforesaid three positions. By letter dated January 15, 2014, you were notified of the date, time and location of the public meeting at which your request would be considered. On January 29, 2014, this Commission received your Letter Brief in which you applied the Gaming Act’s definition of the term “public official” to the submitted facts and asserted that Mr. Deon does not hold any position that would qualify him as a “public official” as that term is defined in the Gaming Act. You further asserted that 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), does not include any of Mr. Deon’s aforesaid three positions. At the public meeting on February 7, 2014, you appeared along with Leslie Mariotti, Esquire, of your office, and stated that you would rest on the arguments presented in your Letter Brief. 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, 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. The Gaming Act defines the term “public official” as follows: Alfano/Deon, 14-2001 February 24, 2014 Page 3 “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. Deon because they list particular public positions that he does not hold. Paragraphs 3 and 4 of the above definition of the term “public official” would not apply to Mr. Deon because, based upon the submitted facts, none of the bodies on which Mr. Deon serves directly receives a distribution of revenue under the Gaming Act. To the extent the Pennsylvania Turnpike Commission might receive from the Gaming Control Board payment(s) for E-ZPasses, we conclude that, for purposes of this Commission’s duties under Section 1512 of the Gaming Act, such would not constitute directly receiving a distribution of revenue under the Gaming Act. Paragraph 5 of the above definition of the term “public official” would not apply to Mr. Deon because, based upon the submitted facts, Pennsylvania Turnpike Commissioners and Board Members of SEPTA and BCIDA are not involved in the development of regulation or policy relating to a licensed entity or other matters under the Gaming Act. Because none of the five numbered paragraphs within the above definition of the term “public official” would apply to Mr. Deon, he would not be considered a “public official” as that term is defined in Section 1512(b) of the Gaming Act. Alfano/Deon, 14-2001 February 24, 2014 Page 4 The determination of this Commission is that based upon the submitted facts, Mr. Deon’s service as a Pennsylvania Turnpike Commissioner and Board Member of SEPTA and BCIDA would not bring him 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 would not cause him to 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). The Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., contains a different definition for the term “public official” (see, 65 Pa.C.S. § 1102). This determination under the Gaming Act does not address or impact status under the Ethics Act. IV.CONCLUSION: Based upon the submitted facts, the service of Pasquale T. Deon, Sr. as a Pennsylvania Turnpike Commissioner and Board Member of the Southeastern Pennsylvania Transportation Authority and Bucks County Industrial Development Authority would not bring him within the definition of the term “public official” as set forth in Section 1512(b) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1512(b), and therefore would not cause him to 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