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HomeMy WebLinkAbout16-3001 ShultzDETERMINATION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Maria Feeleyy Melanie DePalma DATE DECIDED: 7/27/16 DATE MAILED: 7/29/16 16 -3001 Carl R. Shultz, Esqquire Eckert Seamans Crivin & Mellott, LLC 213 Market Street, 8 Floor Harrisburg, PA 17101 -2132 Dear Mr. Shultz: This is in response to your faxed transmission of June 8, 2016, byy which ou requested a determination from this Commission pursuant to Section 2101.1(d)(4 of Act 16 of 2016, the Medical Marijuana Act. I. ISSUE: Whether an individual who resigned from his employment as the Secretary of Policy and Planning for the Honorable Tom Wolf, Governor, prior to the signing into law of Act 16 of 2016, the Medical Marijuana Act ( "Medical Marijuana Act ") would be subject to the restrictions of Section 2101.1(a) and (b) of the Medical Marihuana Act. II. FACTUAL BASIS FOR DETERMINATION: As legal counsel for John R. Hanger, Esquire ( "Mr. Hanger "), you have been authorized by Mr. Hanger to request a determination from this Commission pursuant to the Medical Marijuana Act based upon the following submitted facts. Effective February 26, 2016, Mr. Hanger resigned from his employment as the Secretary of Policy and Planning for the Honorable Tom Wolf, Governor ( "Governor Wolf'). In the aforesaid capacity, Mr. Hanger coordinated program planning and policy development among the executive branch agencies and directed and coordinated efforts of the policy offices of the executive branch agencies. On April 17, 2016, Governor Wolf signed into law the Medical Marijuana Act, effective 30 days thereafter. Section 2101.1(a) and (b) of the Medical Marijuana Act imposes restrictions upon an "executive -level public employee, public official or party officer, or an immediate family member thereof' with regard to holding a financial interest in, or being employed by, a medical marijuana organization or a holding company, affiliate, intermediary or subsidiary thereof, "while the individual is an executive -level public employee, public official or party officer and for one year following Shultz/Han er, 16 -3001 July 29, 2016 Page 2 termination of the individual's status as an executive -level public employee, public official or party officer." Section 2101.1(a) and (b) of Act 16 of 2016. Mr. Hanger is considering investment and emplo ment opportunities with a start- up company (the "Company ") that would be formerly to participate in the medical marijuana business in Pennsylvania under the Medical Marihuana Act. As an investor and employee, Mr. Hanger would provide start -up monies and own or hold equity securities or other ownership or profits interest in the Company, and he would be employed with the Company as Chief Executive Officer and General Counsel. Mr. Hanger is also considering an alternative arrangement where he would provide professional consultant services to the Company as an independent contractor. Once formed, the Company would apply for a permit under the Medical Marijuana Act to be a dispensary and /or grower /processor. The Company would operate its business in Pennsylvania if it would be issued a permit by the Pennsylvania Department of Health. You seek a determination from this Commission, which —given the limited jurisdiction of this Commission under the Medical Marijuana Act —may only address whether Mr. Hanger would be subject to the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act. You express your view that the position of Secretary of Policy and Planning would be considered an "executive -level public employee" position under the Medical MariJ uana Act. You assert that Mr. Hanger is not subject to the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act because Mr. Hanger resigned from his employment as the Secretary of Policy and Planning before the Medical Marijuana Act was signed into law. You argue that nothing in the Medical Marijuana Act reveals a legislative intent to retroactively apply the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act based upon past employment status. You contend that the retroactive application of the restrictions to Mr. Hanger would create a material change in Mr. Hangers substantive rights and would infringe upon his constitutional rights. You assert that the restrictions cannot be applied to Mr. Hanger's involvement with the Company to the extent that he would be engaged in the practice of law as General Counsel to the Company. By letter dated June 29, 2016, 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 2101.1(d)(1) of the Medical Marijuana Act are issued by the State Ethics Commission to the requester based upon the facts that the requester has submitted. 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 2101.1(a) and (b) of the Medical Marijuana Act provides as follows: Section 2101.1. Financial and employment interests. (a) Financial interests.— Except as may be provided for the judiciary by rule or order of the Pennsylvania Supreme Court, an executive -level public employee, public official or party officer, or an immediate family member thereof, shall not intentionally or knowingly hold a financial Shultz/Han er, 16 -3001 July 29, 2016 Page 3 interest in a medical marijuana organization or in a holding company, affiliate, intermediary or subsidiary thereof, while the individual is an executive -level public employee, public official or party officer and for one year following termination of the individual's status as an executive -level public employee, public official or party officer. (b) Employment.— Except as may be provided by rule or order of the Pennsylvania Supreme Court, no executive -level public employee, public official or party officer, or an immediate family member thereof, shall be employed by a medical marijuana organization or by any holding company, affiliate, intermediary or subsidiary thereof, while the individual is an executive -level public employee, public official or part officer and for one year following termination of the individual's status as an executive -level public employee, public official or party officer. Section 2101.1(a) and (b) of Act 16 of 2016. Pursuant to the Statutory Construction Act, "No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa.C.S. § 1926. On April 17, 2016, Governor Wolf signed into law the Medical Marijuana Act, effective 30 days thereafter. There is no indication of any legislative intent that the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act shall be applied retroactively based upon an individual's employment or service in a position that terminated prior to the signing into law of the Medical Marijuana Act. Based upon the submitted fact that Mr. Hanger resigned from his employment as the Secretary of Policy and Planning for Governor Wolf effective February 26, 2016, prior to the signing into law of the Medical Marijuana Act, we conclude that Mr. Hanger would not be subject to the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act. This determination is limited to addressing the specific question posed under Section 2101.1(d)(1) of the Medical Marijuana Act. IV. CONCLUSION: Based upon the submitted facts, and in particular, the submitted fact that John R. Hanger, Esquire ( "Mr. Hanger) resigned from his employment as the Secretary of Policy and Planning for the Honorable Tom Wolf, Governor, effective February 26, 2016, prior to the signing into law of Act 16 of 2016, the Medical Marijuana Act ( `Medical Marijuana Act "), Mr. Hanger would not be subject to the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act. An individual who relies in good faith on a determination issued by this Commission as to such individual pursuant to 2101.1(d)(1) of the Medical Marijuana Act shall not be subject to an 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