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HomeMy WebLinkAbout14-2003 King 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: 10/1/14 DATE MAILED: 10/8/14 14-2003 Adrian R. King, Jr., Esquire Ballard Spahr LLP st 1735 Market Street, 51 Floor Philadelphia, PA 19103-7599 Dear Mr. King: This is in response to your letter dated June 30, 2014, by which you requested a determination from this Commission pursuant to Section 1512.1(e)(1) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1512.1(e)(1). I.ISSUE: Whether a former First Deputy Attorney General for the Pennsylvania Office of Attorney General would be subject to Section 1512.1(a)(1)-(3) of the Gaming Act, 4 Pa.C.S. § 1512.1(a)(1)-(3), where: (1) upon assuming the aforesaid position, the individual recused himself from any and all matters involving the regulation and oversight of casino gaming and delegated any and all gaming matters to another attorney; (2) while serving in such position, the individual’s duties did not substantially involve licensing or enforcement, the development of laws or the development or adoption of regulations or policy related to gaming; and (3) while serving in such position, the individual never maintained other discretionary authority which might affect or influence the outcome of an action, proceeding or decision under the Gaming Act. II.FACTUAL BASIS FOR DETERMINATION: As a former First Deputy Attorney General for the Pennsylvania Office of Attorney General, you request a determination from the Pennsylvania State Ethics Commission as to whether you would be subject to Section 1512.1(a)(1)-(3) of the Gaming Act, 4 Pa.C.S. § 1512.1(a)(1)-(3). King, 14-2003 October 8, 2014 Page 2 You state that the First Deputy Attorney General reports directly to the Attorney General and serves as “second-in-command” in the office of Attorney General. The First Deputy Attorney General is responsible for day-to-day operations of the Commonwealth’s chief law enforcement, consumer protection and civil litigation agency. You state that immediately prior to assuming the First Deputy Attorney General position, you were a partner in the Philadelphia-based law firm Ballard Spahr LLP, where a primary focus of your legal practice was representation of gaming related businesses before the Pennsylvania Gaming Control Board. Such gaming related businesses included entities seeking a license to operate a casino in Pennsylvania, entities granted a license to operate a casino in Pennsylvania, and entities seeking to provide goods and services to a Pennsylvania casino in the capacity of a vendor. On January 16, 2013—the day following her swearing-in—Attorney General Kathleen Kane held the first meeting of her senior executive staff. You state that during this meeting, you identified the actual, potential and/or perceived conflicts of interest that could arise as a result of your past representation of gaming companies doing business in Pennsylvania, and you directed that you be ethically screened from and not participate in any and all matters involving the regulation and oversight of casino gaming. In addition, you directed that any and all gaming matters requiring Office of Attorney General Executive Office attention and oversight be handled by another attorney in the office. You have submitted a copy of a January 25, 2013, memorandum from you to the Office of Attorney General Executive Staff documenting your aforesaid recusal from, and delegation of, any and all matters involving the regulation and oversight of casino gaming. You note that when your recusal from gaming matters was previously brought to the attention of this Commission’s Executive Director, in connection with a request to have your position removed from the Gaming List maintained by this Commission pursuant to Section 1512.1(e)(2) of the Gaming Act, 4 Pa.C.S. § 1512.1(e)(2), the request was granted, and your position was removed from such list. You assert that because the factual prerequisites necessary to trigger application of Section 1512.1(a)(1)-(3) of the Gaming Act are not present, you are not subject to the post-government service prohibitions contained within those provisions. By letter dated August 12, 2014, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on October 1, 2014, you appeared for the purpose of answering any questions of this Commission. III.DISCUSSION: It is initially noted that determinations under Section 1512.1(e)(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. § 1512.1(e)(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. Section 1512.1(a)(1)-(3) of the Gaming Act provides as follows: § 1512.1. Additional restrictions. (a) Restrictions.--No individual trooper or employee of the Pennsylvania State Police or King, 14-2003 October 8, 2014 Page 3 employee of the Office of Attorney General or the department whose duties substantially involve licensing or enforcement, the development of laws or the development or adoption of regulations or policy related to gaming under this part or who has other discretionary authority which may affect or influence the outcome of an action, proceeding or decision under this part shall do any of the following: (1) Accept employment with or be retained by an applicant or licensed entity, or an affiliate, intermediary, subsidiary or holding company of an applicant or licensed entity, for a period of two years after the termination of employment. (2) Appear before the board in any hearing or proceeding or participate in any other activity on behalf of any applicant, licensee, permittee or licensed entity, or an affiliate, intermediary, subsidiary or holding company of an applicant, licensee, or licensed entity, for a period of two years after termination of employment. Nothing in this paragraph shall prevent a current or former trooper or employee of the Pennsylvania State Police, the Office of Attorney General or the department from appearing before the board in any proceeding or hearing as a witness or testifying as to any fact or information. (3) As a condition of employment, a potential employee who would be subject to this subsection shall sign an affidavit that the individual will not accept employment with or be retained by any applicant or licensed entity, or an affiliate, intermediary, subsidiary or holding company of an applicant or licensed entity, for a period of two years after the termination of employment. 4 Pa.C.S. § 1512.1(a)(1)-(3). On its face, Section 1512.1(a)(1)-(3) of the Gaming Act would only be applicable to you if your duties as a First Deputy Attorney General for the Pennsylvania Office of Attorney General substantially involved licensing or enforcement, the development of laws or the development or adoption of regulations or policy related to gaming under the Gaming Act, or if you had other discretionary authority which might affect or influence the outcome of an action, proceeding or decision under the Gaming Act. Because of your recusal from, and delegation to another attorney of, all gaming matters, your position did not include such duties/authority. The determination of this Commission is that based upon the submitted facts, upon leaving Commonwealth employment as a First Deputy Attorney General for the Pennsylvania Office of Attorney General, you would not be subject to Section 1512.1(a)(1)-(3) of the Gaming Act, 4 Pa.C.S. § 1512.1(a)(1)-(3). This determination is based upon the submitted facts that your duties as a First Deputy Attorney General for the Pennsylvania Office of Attorney General did not substantially involve licensing or enforcement, the development of laws or the development or adoption of regulations or policy related to gaming under the Gaming Act, and that you did not have other King, 14-2003 October 8, 2014 Page 4 discretionary authority which might affect or influence the outcome of an action, proceeding or decision under the Gaming Act. This determination is limited to addressing the specific question posed under Section 1512.1(e)(1) of the Gaming Act, 4 Pa.C.S. § 1512.1(e)(1). IV.CONCLUSION: Based upon the submitted facts, upon leaving Commonwealth employment as a First Deputy Attorney General for the Pennsylvania Office of Attorney General, you would not be subject to Section 1512.1(a)(1)-(3) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1512.1(a)(1)-(3). This determination is based upon the submitted facts that your duties as a First Deputy Attorney General for the Pennsylvania Office of Attorney General did not substantially involve licensing or enforcement, the development of laws or the development or adoption of regulations or policy related to gaming under the Gaming Act, and that you did not have other discretionary authority which might affect or influence the outcome of an action, proceeding or decision under the Gaming Act. An individual who relies in good faith on a determination issued by this Commission as to such individual pursuant to Section 1512.1(e)(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