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Home My WebLink About16-2003 Lance BarberDETERMINATION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeleyy Melanie De alma DATE DECIDED: 1/21/16 DATE MAILED: 2/2/16 iMM 11I1x3 Lance Barber 1933 Plain Grove Road Volant, PA 16156 Dear Mr. Barber: This is in response to your letter dated December 7 2015 b 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 a.C.S. § 1512(a.5)(1). ISSUE: Whether service as a Pennsylvania constable 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 have been elected to serve as a Pennsylvania constable. You indicate that you hold a license with the Pennsylvania Harness Racing Commission to own, drive or train Standardbred race horses. You have contacted various entities as to whether serving as a constable would jeopardize the aforesaid license. You seek a determination from this Commission, which —given the limited jurisdiction of this Commission under the Gaming Act —may only address whether service as a Pennsylvania constable would bring you within the definitions of the terms "executive -level public employee" or " ublic official" as set forth in the Gaming Act at 4 Pa.C.S. §§ 1103, 1512(b), and therefore cause you to be subject to the restrictions of the Gaming Act at 4 Pa.C.S. § 1512(a), (a.1) and (a.2). Barber, 16 -2003 February 2, 2016 Page 2 By letter dated December 22, 2015, you were notified of the date, time and location of the public meeting at which your request would be considered. We take administrative notice of the following information 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 enns Ivania 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 respondent 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 1 01(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 (8 Pa.C.S. § 806), 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 ome 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; Le ree, Order 1225; 65 Pa.C.S. § 1102; see also, (Penns Ivania Unified Judicial System Constable Policies, Procedures and Standards of onduct (May 2013), at 14 (pertaining to the requirement for constables and deputy constables to file btatements of Financial Interests pursuant to the Ethics 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 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 Benestad, Determination 13 -2003, we addressed the same question that you have presented. We determined that service as a Pennsylvania constable would not 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. §§ 11037 1512(b). We determine that as a constable, 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: Barber, 16 -2003 February 2, 2016 Page 3 "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 count 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 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 Pennsylvania constable, you are an independent contractor and not an employee. Therefore, as a constable, you would not be considered an "executive -level public employee" as Section 1103 of the Gaming Act defines that term. We further determine that as a constable, you would not 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. Barber, 16 -2003 February 2, 2016 Page 4 (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 you because they list particular public positions that you do not hold. Paragraph 3 of the above definition of the term "public official" would not apply to ou because the position of Pennsylvania constable is not a county or municipal office. Paragraphs 4 and 5 of the above definition of the term "public official" would not apply to you because: (1) as a constable, you have not been elected /appointed to a department, agency, board, commission, authority, county or municipality; and (2) 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. Benestad, supra. 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 Pennsylvania constable 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 you 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 and in Benestad, supra, constables are "public officials" as the Ethics Act defines that term, and constables are subject to the restrictions and requirements of the Ethics Act. IV. CONCLUSION: Based upon the submitted facts, your service as a Pennsylvania constable 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). Therefore you 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). Barber, 16 -2003 February 2, 2016 Page 5 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, Nicholas A. Colafella Chair