HomeMy WebLinkAbout14-2002 Hatfield
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
Maria Feeley
DATE DECIDED: 4/25/14
DATE MAILED: 4/30/14
14-2002
Charles Hatfield
81 Vine Street
North East, PA 16428
Dear Mr. Hatfield:
This is in response to your letters dated February 18, 2014 and March 13, 2014,
and your faxed transmission of April 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 service as a Member of the North East Borough Civil Service
Commission would bring an individual 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:
You are a Member of the North East Borough Civil Service Commission. In a
private capacity, you have applied to the Pennsylvania Gaming Control Board for a
gaming level 2 (G2) employee permit. In conjunction with your application for a gaming
level 2 (G2) employee permit, the Pennsylvania Gaming Control Board’s Office of
Enforcement Counsel has requested that you obtain a determination from this
Commission pursuant to Section 1512(a.5)(1) of the Gaming Act as to whether your
service as a Member of the North East Borough Civil Service Commission would cause
you to be subject to the restrictions of Section 1512 of the Gaming Act, 4 Pa.C.S. §
1512.
In support of your request, you have submitted copies of letters from the Borough
Manager of North East Borough dated March 13, 2014, and April 14, 2014, which state
that:
Hatfield, 14-2002
April 30, 2014
Page 2
(1) North East Borough has not received, and does not expect
to receive, any distribution of revenue under the Gaming Act;
(2) The North East Borough Civil Service Commission has not
received, and does not expect to receive, any distribution of
revenue under the Gaming Act;
(3) Members of the North East Borough Civil Service
Commission are not employees of North East Borough and
receive no compensation for their voluntary service; and
(4) Members of the North East Borough Civil Service
Commission are not involved in the development of
regulation or policy relating to a licensed entity or other
matters under the Gaming Act.
By letter dated March 19, 2014, you were notified of the date, time and location
of the public meeting at which your request would be considered.
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.
In addressing your inquiry, the restrictions of Section 1512(a), (a.1) and (a.2) of
the Gaming Act would only be applicable to you if your service as a Member of the
North East Borough Civil Service Commission would bring you 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 Member of the North East Borough Civil Service
Commission, you 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
Hatfield, 14-2002
April 30, 2014
Page 3
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 you because it lists particular public positions that you do not hold.
Paragraphs 2, 3, and 4 of the above definition would not apply to you because, as a
Member of the North East Borough Civil Service Commission, you are not an employee.
Therefore, as a Member of the North East Borough Civil Service Commission, you
would not be considered an “executive-level public employee” as Section 1103 of the
Gaming Act defines that term.
We shall now consider whether, as a Member of the North East Borough Civil
Service Commission, you 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
Hatfield, 14-2002
April 30, 2014
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 and 2 of the above definition of the term “public official” would not
apply to you because they list particular public positions that you do not hold.
Paragraph 3 and 4 of the above definition of the term “public official” would not
apply to you because neither North East Borough nor the North East Borough Civil
Service Commission directly receives a distribution of revenue under the Gaming Act.
Paragraph 5 of the above definition of the term “public official” would not apply to
you because, as a Member of the North East Borough Civil Service Commission, you
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 you, you 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,
your service as a Member of the North East Borough Civil Service Commission would
not bring you 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 would not cause you 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, your service as a Member
of the North East Borough Civil Service Commission would not bring you 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 1512(b)
of the Gaming Act, 4 Pa.C.S. § 1512(b), and therefore would not cause you 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