HomeMy WebLinkAbout17-3001 Knox� h h
�'S` .nytfT' Sf
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
Maria Feel
eyy
Melanie ❑ePxlma
DATE DECIDED: 1125117
DATE MAILED: 218117
17 -3001
To the Requester:
W. John Knox, Esquire
Dear Mr. Knox:
This is in response to your letter of November 9, 2016, which is being
considered a request for a determination from this Commission pursuant to Section
2101.1(d)(1) of the Medical Marijuana Act ( "Medical Marijuana Act "), Act 16 of 2016, 35
P.S. § 0231.2101.1(d)(1).
1. ISSUE:
Whether the spouse of an individual who served as an elected Supervisor of
Cussewago Township In Crawford County, Pennsylvania, from January 2, 2016, until on
or about October 11, 2016, would be subject to the restrictions of Section 2101.1(x) and
(b) of the Medical Marijuana Act, 35 P.S. § 10231.2101.1(a) -(b).
II. FACTUAL BASIS FOR DETERMINATION:
You have been authorized by Ms. Beverly Alward ( "Ms. Alward" ) to request a
determination from this Commission pursuant to 2101.1(d)(1) of the Medical Marijuana
Act, 35 P.S. § 10231.2101.1(d)(1), based upon the following submitted facts.
Ms. Alward is seeking to work with and/or have a financial interest in a company
( "the Company ") that intends to apply for a license to operate medical marijuana
dispensaries in northwest Pennsylvania.
Ms. Alward's husband, John Alward ( "Mr. Alward "), served as an elected
Supervisor of Cussewago Township in Crawford County, Pennsylvania, from January 2,
2016, until he resigned from such office on or about October 11, 2016. Mr. Alward's
resignation was formally recognized by the Cussewago Township Board of Supervisors
on November 1, 2016. As a Cussewago Township Supervisor, Mr. Alward did not
receive a salary, but he did receive $65.00 per month from Cussewago Townshipp,
which you assert should not be considered compensation, but rather, was intended to
cover small costs incurred in carrying out his elected position.
P.O. BOX 11470, HARRISBURG, PA 17108-1470 m 717 -783 -1610 a 1- 800 -932 -0936 ® www.ethics.state.pa.us
Knox, 17 -3001
FeTiruary 8, 2017
Page 2
Although you contend that Mr. Alward's positron as a Cussewago Township
Supervisor was not a compensated position, you have submitted what appears to be
conflicting information consistingg of a Cussewago Township payroll record which lists
Mr. Alward's name under the headin "Employee" and reflects withholding from the
$65.00 per month payment to Mr. Alward for taxes, Social Security, Medicare, and
Unemployment Compensation.
You state that the Company has no plans to open or operate a marijuana
organization in Cussewago Township. You further state, "Therefore, Cussewago
Township will not have `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 medical marijuana organization owned and operated b the Com an ."
November 9, 2016 r, eguest.letter, at 3 (Emphasis a e .
You state that Cussewago Township does not directly receive a distribution of
revenue from the Medical Marijuana Program Fund and does not have a police
department to receive revenue from that fund.
You present various arguments in support of your position that as a Cussewago
Township Supervisor, Mr. Alward was neither a "public official" nor an "executive -level
public employee" so as to bring Ms. Alward within the restrictions of Section 2101.1(a)
and (b) of the Medical Marijuana Act, 35 P.S. § 10231.2101.1(a) -(b). In the event this
Commission would disagree with your position and find the restrictions to be applicable,
you ask whether the restrictions would cease to apply to Ms. Alward after November 1,
2017, and whether, in the meantime, she could enter into agreements memorializing her
employment with the Company and/or her financial interest in the Company if those
agreements would contain language that her employment and /or financial interest would
not commence /take effect until after November 1, 2017.
By letter dated January 5, 2017, you were notified of the date, time and location
of the public meeting at which your request would be considered.
111. 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.
The Medical Marijuana Act was signed into law on April 17, 2016, and took effect
30 days thereafter. 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 knowin ly hold a financial
interest in a medical marijuana organization or in a holding
company, affiliate, intermediaryry or subsidiary thereof, while
the individual is an executive-level public employee, public
official or party officer and for one year following termination
Knox, 17 -3001
1- e°T�ruary 8, 2017
Page 3
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.
35 P.S. § 10231.2101.1(a) -(b).
The Medical Marijuana Act defines the term "immediate family" as it is defined in
Section 1512(b) of the Pennsylvania Race Horse Developmenf and Gaming Act
( "Gaming Act "), 4 Pa.C.S. § 1512(b). See, 35 P.S. § �0231.2'I 01.1(e). Section 1512(b
of the Gaming Act defines the term immediate family to include a spouse. 4 Pa.C.S.
1512(b). Therefore, Ms. Alward is an immediate family member of Mr. Alward.
The Medical Marijuana Act defines the term "public official" as follows:
(e) Definitions. - -As used in this section, the following
words and phrases shall have the meanings given to them in
this subsection:
"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 from the fund.
(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 from the fund.
(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 medical marijuana organization or who is
involved in other matters under this act.
The term does not include a member of a school
board or an individual who held an uncompensated office
Knox, 17 -3001
el e ary 8, 2017
Page 4
with a governmental body prior to January 1, 2017, and who
no longer holds the office as of January 1, 2017.
35 P.S. § 10231.2101.1(e).
The Medical Marijuana Act defines the term "fund" as: "The Medical Marijuana
Program Fund established in section 902 [of the Medical Marijuana Act]." Section 103
of the Medical Marijuana Act, 35 P.S. § 10231.103.
You contend that Mr. Alward would fall within the exclusion at the end of the
definition of the term "public official" as an individual who held an uncompensated office
with a governmental body prior to January 1, 2017, and who no longer holds the office
as of January 1, 2017. Your contention hinges upon your assertion that the $65.00 per
month payment Mr. Alward received from Cussewago Township as a Cussewago
Township Supervisor should not be considered compensation, but rather, was intended
to cover small costs incurred in carrying out his elected position. Nevertheless, you
have submitted a Cussewago Township payroll record which lists Mr. Alward's name
under the heading "Employee" and reflects withholding from the $65.00 per month
payment to Mr. Alward for taxes, Social Security, Medicare, and Unemployment
Compensation. Under the Medical Marijuana Act, this Commission issues
determinations based upon submitted facts and does not have statutory authority to
resolve factual issues such as whether Mr. Alward's position as a Cussewago Township
Supervisor was a compensated position. Since it is unclear from the submitted facts
whether the aforesaid exclusion would be applicable, the rest of the definition must be
analyzed.
As for the rest of the definition, Paragraphs 1 and 2 of the definition of the term
"public official" are not applicable because they list particular public positions that Mr.
Alward did not hold. Paragraphs 3 and 4 of the definition are not applicable based upon
the submitted fact that Cussewago Township does not directly receive a distribution of
revenue from the Medical Marijuana Program Fund.
Regarding Paragraph 5 of the definition, you state that the Company has no
plans to open or operate a marijuana organization in Cussewago Township. You further
state, "Therefore, Cussewago Township will not have `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 medical marijuana organization owned
and operated b the Com an ." November 9 2016 request letter, at 3 (Empp asis
a ed ). The underlined language quoted from your request letter is narrower than the
actual language of the statutory definition.
In applying the statutory language to the submitted facts, we conclude that Ms.
Alward would not be considered an immediate family member of a "public official" as a
result of Mr. Alward's prior service as a Cussewago Township Supervisor from January
2, 2016, until on or about October 11, 2016, subject to the condition that either Mr.
Alward's position as a Cussewago Township Supervisor was an uncompensated
position or did not involve the development of regulation or policy relating to a medical
marihuana organization or other matters under the Medical Marihuana Act.
We shall next consider whether Ms. Alward would be considered an immediate
family member of an "executive -level public employee" as a result of Mr. Alward's prior
service as a Cussewago Township Supervisor.
The Medical Marijuana Act does not include a definition of the term "executive -
level public employee." However, we conclude that it was the legislative intent that we
use the definition of the term "executive - -level public employee" as set forth in Section
1103 of the Gaming Act, 4 Pa.C.S. § 1103, when issuing determinations under the
Medical Marijuana Act. This conclusion is based upon the directive at Section
2101.1(d)(2) of the Medical Marijuana Act that this Commission use a definition of the
Knox, 17 -3001
wary 8, 2017
Page 5
term "executive -level public employee" from the Gaming Act, 4 Pa.C.S. § 1512(b), when
publishing a list of all State, county, municipal and other government positions meetin
the definitions of ublic official or executive -level public employee. See, 35 P.S.
(d)(2F Given that the Gaming Act's definition of the term ` xe ecutive -leve
public employee" is now contained in Section 1103 of the Gaming Act, we shall use that
definition, with any references to "this part" referring to the Medical Marijuana Act rather
than the Gaming Act.
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.
(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
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 be applicable because it lists particular public positions that Mr. Alward did
not hold.
Paragraph 2 of the above definition of the term "executive -level public employee"
would not be applicable because, as a Cussewago Township Supervisor, Mr. Alward
would not have been an employee of the executive branch with duties that substantially
involved licensing or enforcement under the Medical Marijuana Act or who was 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 be applicable if, as a Cussewago Township Supervisor, Mr.
Alward was not in fact an "employee" of Cussewago Township. While one might not
consider the position of a township supervisor to be a position of employment with the
township, you have submitted a Cussewago Township payroll record which lists Mr.
Knox, 17� -3001
eruary 8, 2017
Page 6
Alward's name under the heading "Employee" and reflects withholding from the $65.00
per month payment to Mr. Alward for taxes, Social Security, Medicare, and
Unemployment Compensation. Under the Medical Marijuana Act, this Commission
issues determinations based upon submitted facts and does not have statutory authority
to resolve factual issues such as whether Mr. Alward's position as a Cussewago
Township Supervisor was in fact an employee position.
Even if Mr. Alward's position as a Cussewago Township Supervisor was in fact
an employee position, Paragraphs 3 and 4 of the above definition of the term
executive -level public employee would not be applicable subject to the condition that
during Mr. Alward's service as a Cussewago Township Supervisor: (1) he did not have
discretionary power(s) that could affect or influence action or decision(s) by Cussewago
Township related to the Medical Marijuana Act; and (2) he was not involved in the
development of law, regulation or policy relating to matters regulated under the Medical
Marijuana Act.
Therefore, Ms. Alward would not be considered an immediate family member of
an "executive -level public employee" as a result of Mr. Alward's prior service as a
Cussewago Township Supervisor from January 2, 2016, until on or about October 11,
2016, subject to the condition that as a Cussewago Township Supervisor, either Mr.
Alward was not an employee of Cussewago Township, or, if he was an employee, he
did not have discretionary power(s) that could affect or influence action or decision(s) by
Cussewago Township related to the Medical Marijuana Act and he was not involved in
the development of law, regulation or policy relating to matters regulated under the
Medical Marijuana Act.
Based upon all of the above, the necessary determination of this Commission is
that Ms. Alward would not be subject to the restrictions of Section 2101.1 (a) and (b) of
the Medical Marijuana Act, 35 P.S. § 10231.2101.1(a) -(b), as a result of r. Alward's
prior service as a Cussewago Township Supervisor from January 2, 2016, until on or
about October 11, 2016, subject to the following conditions:
(1) Either Mr. Alward's position as a Cussewago Township
Supervisor was an uncompensated position or it did not
involve the development of regulation or policy relating to a
medical marquana organization or other matters under the
Medical Marijuana Act; and
(2) As a Cussewago Township Supervisor, either Mr. Alward
was not an employee of Cussewago Township, or, if he was
an employee, he did not have discretionary power(s) that
could affect or influence action or decision(s) by Cussewago
Township related to the Medical Mariivana Act and he was
not involved in the development of law, regulation or policy
relating to matters regulated under the Medical Marijuana
Act.
If the above conditions would not be met, such that the restrictions of Section
2101.1(a) and (b) of the Medical Marijuana Act, 35 P.S. § 10231.2101.1(a) -(b), would
apply to Ms. Alward, the restrictions would apply for one year following termination of
Mr. lward's status as a Cussewago Township Supervisor.
This determination is limited to addressing whether Ms. Alward would be subject
to the restrictions of Section 2101.1(a) and (b) of the Medical Marijuana Act, 35 P.S. §
10231.2101.1(a) -(b). Your other question(s) may not be addressed as they are beyond
the scope of our limited jurisdiction under Section 2101.1(d)(1) of the Medical Marijuana
Act, 35 P.S. § 10231.2101.1(d)(1).
Knox, 17 -3001
e �ruary 8, 2017
Page 7
IV. CONCLUSION: Based upon the submitted facts, Ms. Beverly Alward "Ms.
Alward" would not be subject to the restrictions of Section 2101.1(a) and (b) of the
Medical Marijuana Act, 35 P.S. § 10231.2101.1(a -(b), as a result of the prior service of
her spouse, Mr. John Alward ("Mr. Alward "), as a Cussewago Township Supervisor from
January 2, 2016, until on or about October 11, 2016, subject to the following conditions:
(1) Either Mr. Alward's position as a Cussewago Township
Supervisor was an uncompensated position or it did not
involve the development of regulation or policy relating to a
medical mar�juana organization or other matters under the
Medical Marijuana Act; and
(2) As a Cussewago Township Supervisor, either Mr. Alward
was not an employee of Cussewago Township, or, if he was
an employee, he did not have discretionary power(s) that
could affect or influence action or decision(s) by Cussewago
Township related to the Medical Marijuana Act and he was
not involved in the development of law, regulation or policy
relating to matters regulated under the Medical Marijuana
Act.
If the above conditions would not be met, such that the restrictions of Section
2101.1(a) and (b) of the Medical Marijuana Act, 35 P.S. § 10231.2101.1(a) -(b), would
apply to Ms. Alward, the restrictions would apply for one year following termination of
Mr. Alward's status as a Cussewago Township Supervisor.
A person that relies in good faith on a determination issued by this Commission
as to such person pursuant to Section 2101.1(d)(1) of the Medical Marijuana Act, 35
P.S. § 10231.2101.1(d)(1), 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,
9
Nic alas A. Colafella
Chair