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HomeMy WebLinkAbout16-2004 HafnerA L STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 DETERMINATION OF THE COMMISSION Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma DATE DECIDED: 10/20/2016 DATE MAILED: 10/25/2016 To the Requester: 16-2004 C.J. Hafner, 11, Esquire Chief Counsel Democrat Legal Staff Senate of Pennsylvania Dear Mr. Hafner: This is in response to your letter dated October 13, 20'16, 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 pa.C.S. § 1512(a.5)(1). 1. ISSUE: Whether service as Chairman of the Pennsylvania Turnpike Commission and/or as Executive Director /Chief Executive Officer of the Convention Visitors Bureau of Greater Monroeville would bring Mr. Sean Logan within the definitions of the terms "executive -level public employee" and /or "public official" as set forth in the Gaming Act at 4 Pa. C.S. §§ 1103, 1512(b). [I. FACTUAL BASIS FOR DETERMINATION: You have been authorized by Mr. Sean Logan ( "Mr. Logan") to seek a determination from this Commission regarding his status under the Gaming Act. The material facts that you have submitted may be fairly summarized as follows. Mr. Logan currently serves as Chairman of the Pennsylvania Turnpike Commission ( "Turnpike Commission') and as Executive Director /Chief Executive Officer E{CEO ") of the "Convention Visitors Lreau of Greater Monroeville, ( "Visitors Bureau "). �'oth positions are compensated. You state that the Turnpike Commission is an independent agency of the Commonwealth (71 P.S. § 732 -102) and is not a county, municipality, or executive agency of the Commonwealth's government. You state that the Turnpike Commission has no duties involving licensing or enforcement related to the Gaming Act. P.O. BOX 1 1470, HARRISBURG, PA 17108 -1470 • 717- 783 -1610 • 1 -800- 932 -0936 • www.ethics.state.pa.us Hafner 16 -2004 c� er 25, 2016 Page 2 The Visitors Bureau was originally incorporated as a nonprofit, non -stock Pennsylvania corporation on December 26, 1980. You have submitted a copy of the Constitution and By -laws of the Visitors Bureau, which were most recently amended prior to 1991. In March 1991 the Council of the Municipality of Monroeville, Pennsylvania, adopted Ordinance Number 1746, which created the Greater Monroeville Convention and Visitors Bureau Board for the Municipality." Ordinance 1746, Section 1, Ordinance Number 1746 was subsequently amended on tree separate occasions by the Monroeville Council, most recently in 2004 by Ordinance Number 2314. Ordinance Number 2314 provides, in pertinent part, as follows: BE IT ORDAINED AND ENACTED by the Council of the Municipality of Monroeville and it is hereby ordained and enacted by the authority of the same. SECTION 1. Pursuant to the provisions and authority of the Monroeville Home Rule Charter, as amended, the Municipal Council oes hereby create and establish the onvention Visitors Bureau of reater Monroeville Board for t e Munici alit , consisting of five (5) voting and one (1) ex- officio member to be appointed by Council. ION 2. The owers an unaer the home Charter of the Municipality and the second Ulass Uounty code ana with the right to have tull and complete control over the o eration and conduct of the efforts of the Municipality to plan and promote programs designated to stimulate and increase the volume of tourism and visitor and convention business in Monroeville. SECTION 3. The Board shall be appointed pursuant to Article CV I ection 1-801, of the Home Rule Charter and serve tor the term ot tive 5) years or until their successors are appointed, except that the members of the Board first appointed, shall be appointed for terms of one, two, three, four, and five years respectively, so that the term of one member shall expire annually thereafter. Vacancies in the Board, occurring otherwise than by expiration of term, shall be filled by Council for the unexpired term of the vacated membership. The members of the Board shall serve without compensation. The five (5) member voting Board shall be made up of individuals from the following entities or with the following qualifications: a. Three (3) members holding or formerly holding titles of Owner or General Manager to be chosen from the major hotel, motel and convention facilities in Monroeville. No owner shall have more than one representative or individual appointed to the Board at any given time. b. One (1) member to be from a major banking institution in Monroeville, or who was formerly employed by a major banking institution in Monroeville. Hafner, 16 -2004 c�to -er 25, 2016 Page 3 C. One (1) at -large member who by experience, training, background, or occupation is engaged in the convention and tourism promotion industry in and for Monroeville. One (1) ex- officio member from Municipal Council. The ex- officio member shall sit as an ex- officio member until he/she is replaced by Municipal Council. SECTION 4. The Board, immediately following their appointment, shall meet and elect their own President, Vice President and Secretary who shall serve for a period of one (1) year. The Treasurer will be appointed from the member appointed from the major banking institution. The Board shall have the power to adopt rules and regulations for the conduct of all business within its jurisdiction. The Board shall meet annually thereafter for the purpose of electing a President, Vice President and Secretary to serve for an ensuing year and shall meet otherwise as directed by the rules and regulations. The Board shall have the authority to select an attorney to represent it and any and all other personnel as may be necessary or needed, to serve for periods as shall be permitted by the rules and regulations of the Board. SECTION 5. The Board is authorized and empowered to receive and expend such sums, as may, from time to time, be appropriated to it by the Municipality and by the Commonwealth of Pennsylvania, or any of its departments or agencies, and to receive and utilize for the purposes for which it is created, and sum or sums of money or any property which may come to it from any source whatsoever. SECTION 6. The Municipality is authorized to appropriate, set aside, and pa over to the Board, from time to time, such sum or sums as it shall receive pursuant to Act 252 of 1982, as amended, and from the amount set up and designated in its Annual Budget, for such purposes, and shall annually, in its budget, appropriate, set up and allocate reasonable sums for the Convention Visitors Bureau of Greater Monroeville activities. ORDAINED AND ENACTED by Council this 9th day of November, 2004. Ordinance Number 2314 of the Municipality of Monroeville (Emphasis added). We take administrative notice that the Section of the Monroeville Home Rule Charter referenced in the above Ordinance, together with the subsequent Section of the Monroeville Home Rule Charter, provide as follows: ARTICLE XVIII BOARDS, COMMISSIONS,7M AUTHORITIES Section 1801, Authorization and Appointment of Members In addition to the Boards and Commissions established by this Charter, the Council may from time to time establish, by ordinance, various other Boards, Commissions and Authorities to act in an advisory capacity or to perform special functions. The members Hafner, 16 -2004 c�b r 25, 2016 Page 4 thereof shall be appointed by the Council unless otherwise specified in this Charter. Individual members of Council and the Mayor may make nominations for appointments to Boards, Commissions and Authorities. 1802. Qualifications of Members and Te (a) All parsons appointed to any Board, Commission or Authority shall be residents of the Municipality and remain such during their term of office. (b) Persons appointed to serve on Boards, Commissions and Authorities after the effective date of this Charter shall not serve more than two (2 consecutive terms. Filling an unexpired term shall not be considered in calculating terms for this purpose. c) No elected official shall serve on any Board, Commission or except in a ex officio non voting capacity, except as otherwise provided in this Charter. (d) No person shall serve concurrently on more tnan one municipal Board, Commission or Authority except in an ex officio capacity or as otherwise provided in this Charter. Monroeville Home Rule Charter, Article XVIII, §§ 1801 -1802 (Emphasis added). In March 2013 the Visitors Bureau filed an Application for Registration of a Fictitious Name with the Pennsylvania Department of State. The Visitors Bureau is named in such Application as the entity "interested in such business." The Application is signed by Mr. Logan as the Chief Executive Officer of the Visitors Bureau. In April 2013 Mr. Logan signed, as Chief Executive Officer of the Visitors Bureau, a Statement of Change of Registered Office filed by the Visitors Bureau with the Pennsylvania Department of State. You have submitted a copy of Mr. Logan's Job Description for his position as Executive Director/Chief Executive Officer of the Visitors Bureau, which document is incorporated herein by reference. You state that as Executive Director/Chief Executive Officer of the Visitors Bureau, Mr. Logan does not possess discretionary powers or authority related to the Gaming Act. You further state that the Visitors Bureau is not involved in the development of law, regulations or policies relating to the Gaming Act. You observe that Members of the Board of the Visitors Bureau are included on the list of positions this Commission considers to fall within the definition of the term "public official" as set forth in the Gaming Act. The Visitors Bureau receives funding as a tourism promotion agency pursuant to Section 1407 of the Gaming Act, 4 Pa.C.S. 1407. You state that Mr. Logan estimates the Visitors Bureau receives less than 15% of its funding from gaming revenues. Additional funding is generated by a hotel room rental tax, which is imposed by All_ggheny County pursuant to state law and Allegheny County Ordinance Number 04- 16 R, a copy of the latter of which you have provided. You have submitted a copy of a letter dated February 1, 2016, from the Pennsylvania Department of the Auditor General, which concluded that employees of the Visitors Bureau were not "employees of the municipality" for purposes of Hafner, 16 -2004 cc tower 25, 2016 Page 5 Pennsyylvania's Municipal Pension Plan Funding Standard and Recovery Act, Act 205 of 1984, 53 P.S. § 895.1 01 et sec . In your request letter, you present arguments in support of Mr. Logan's position that he is neither an "executive -level public employee" nor a "public official "- ----as the Gaming Act defines those terms --in either of his aforesaid positions. By letter dated October 14, 2016, 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 20, 2016, you appeared and offered commentary, which may be fairly summarized as follows. You confirmed that in his capacity as Executive Director /Chief Executive Officer of the Visitors Bureau, Mr. Logan is strictly an employee of the Visitors Bureau and is not in any way treated as a Member of the Board of the Visitors Bureau. You also confirmed that the only connection the Visitors Bureau has with gaming is its receipt of distributions of gaming revenues. Ill. 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 su mi ted, 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. We begin our analysis by concluding that, for purposes of this Commission's duties and responsibilities under the Gaming Act, the Board of the Visitors Bureau is a govemmental body and is part of the Municipality of Monroeville. This conclusion is based upon the clear language of Sections 1801 -1802 of the Monroeville Home Rule Charter and Ordinance Number 2314 of the Municipality of Monroeville quoted above. The Municipality of Monroeville has "created and established" the Board of the Visitors Bureau as a Board of the Municipality, with Board Members appointed by the Municipal Council. Additionally, the Board of the Visitors Bureau performs a governmental function for the Municipality and may receive appropriations from it. It is not significant to our analysis whether the original entity created in 1980 continues to exist. The term "executive -level public employee" is defined in Section 1103 of the Gaming Act as follows: "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. Hafner, 16 -2004 c�Eer 25, 2016 Page 6 (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. The term "public official" is defined in Section 1512(b) of the Gaming Act as follows: "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 undder 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 board or an individual who with a governmental body p no longer holds the office a includes a member of an which makes recommendati 4 Pa.C.S. § 1512(b). include a member of a school held an uncompensated office rior to January 1, 2006, and who s of January 1, 2006. The term advisory board or commission ons relating to a licensed facility. Hafner, 16 -2004 cctob r 25, 2016 Page 7 In comparing the two definitions, the General Assembly chose to make the receipt of a distribution of gaming revenue a basis for status as a "public official" but did not include the receipt of a distribution of gaming revenue as a basis for status as an executive -level public employee." As an administrative agency, it is our duty to apply the definitions as promulgated by the General Assembly. We initially determine that in his capacity as Chairman of the Turnpike Commission, Mr. Logan is not an "executive -level public employee" as the Gaming Act defines that term. Paragraph 1 of the above definition of the term "executive -level public employee" would not a ply to Mr. Logan as Chairman of the Turnpike Commission because it lists particular public positions that Mr. Logan does not hold. Paragraph 2 of the above definition of the term "executive -level public.employee" would not apply to Mr. Logan as Chairman of the Turnpike Commission because, based upon the submitted facts, the Turnpike Commission has no duties involving licensing or enforcement under the Gaming Act, the duties of Mr. Logan as Chairman of the Turnpike Commission do not substantially involve licensing or enforcement under the Gaming Act, and Mr. Logan is not involved in the development of regulations or policies relating to a licensed entity. Paragraph 3 of the above definition of the term executive - level public employee" would not apply to Mr. Logan as Chairman of the Turnpike Commission because the Turnpike Commission is not a county or municipality. Paragraph 4 of the above definition of the term "executive -level public employee" would not appply to Mr. Logan as Chairman of the Turnpike Commission because, based upon the submitted facts, the Turnpike Commission does not act or make decisions related to the Gaming Act and Mr. Logan is not involved in the development of regulation or policy relating to matters regulated under the Gaming Act. We next determine that in his capacity as Chairman of the Turnpike Commission, Mr. Logan is not a "public official" as the Gaminq Act defines that term for the reasons set forth in Alfano, Determination 14.200 , and subject to the con ition that the material facts remain as set forth in Alfano, Determinations -2001. We further determine that in his capacity as Executive DirectorICEO of the Visitors Bureau, Mr. Logan is not an "executive -level public employee" as that term is defined in the Gaming Act. Paragraph 1 of the above definition of the term that level public employee' would not apply to Mr. Logan as Executive Director /CEO of the Visitors Bureau because it lists particular public positions that Mr. Logan does not hold. Paragraph 2 of the above definition of the term "executive -level public employee" would not apply to Mr. Logan as Executive Director /CEO of the Visitors Bureau because the duties of Mr. Logan as Executive Director /CEO of the Visitors Bureau do not substantially involve licensing or enforcement under the Gaming Act, and Mr. Logan is not involved in the development of regulations or policies relating to a licensed entity. Paragraphs 3 and 4 of the above definition of the term "executive -level public employee" would not a ply to Mr. Logan as Executive Director /CEO of the Visitors Bureau because: (1 although Mr. Logan and/or the Visitors Bureau Board are involved in p s endin distributions of revenue received under the Gaming Act, they do not take actions or make decisions related to the Gaming Act itself; and �2) Mr. Logan is not involved in the development of law, regulation or policy relating o matters regulated under the Gaming Act. Finally, we conclude that in his capacity as Executive DirectorICEO of the Visitors Bureau, Mr. Logan is not a "public official as the Gamin Act defines that term. Paragraphs 1 and 2 of the above definition of the term "public official" would not app Ty to Mr. Logan because they list particular public positions that he does not hold. Paragraphs 3, 4, and 5 of the above definition of the term "public official" would not apply to Mr. Logan because, unlike the Board Members of the Visitors Bureau, Mr. Logan is not elected or appointed to an office or board; rather, he is an employee of the Visitors Bureau. Hafner, 16 -2004 c� foyer 25, 2016 Page 8 The determination of this Commission is that based upon the submitted facts, service as Chairman of the Turnpike Commission and /or as Executive DirectorlChief Executive Officer of the Visitors Bureau would not bring Mr. Logan within the definitions of the terms "executive -level public employee" and/or " ublic official" as set forth at Sections 1103 and 1512(b) of the Gaming Act, 4 Pa.C.S. §§ 1103, 1512(b). This determination is limited to addressing the sppecific uestion posed under Section 1512(x.5)(1) of the Gaming Act, 4 Pa.C.S. § 1512(x.5)01 . The Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et se q., contains a different definition for the term "public official" as well as a definition Tor the term "public employee" see, 65 Pa.C.S. § 1102). This determination under the Gaming Act does not address or impact status under the Public Official and Employee Ethics Act. IV. CONCLUSION: Based upon the submitted facts, service as Chairman of the Pennsy vvan— urn-p a Commission and/or as Executive Director/Chief Executive Officer of the Convention Visitors Bureau of Greater Monroeville would not bring Mr. Sean Logan within the definitions of the terms "executive -level public employee" and/or " T ublic official" as set forth at Sections 1103 and 1512(b) of the Gaming Act, 4 Pa.C.S. 1103, 1512(b). 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 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, Ah a OsA. C4o I daf e I I a Chair