HomeMy WebLinkAbout18-2001 MeluskeyPHONE: 717- 783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806
TOLL FREE: 1- 800- 932 -0936 FINANCE BUILDING WEBSITE: www.AhiGs.pa.gov
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
DETERMINATION OF THE COMMISSION
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Monique Myatt Galloway
Michael A. Schwartz
Shelley Y. Simms
DATE DECIDED: 10124118
DATE MAILED: 1119118
18 -2001
To the Requester:
Mark W. Meluskey
Dear Mr. Meluskey:
This is in response to your letter dated October 9, 2018, and your email of October
12, 2018, by which you requested a determination from this Commission pursuant to
Section 120'1 h) 14) of the Pennsylvania Race Horse Development and Gaming Act
( "Gaming Act 'T, � Pa.C.S. § 1201(h)(14).
L ISSUE:
Whether the duties of an individual employed as a Statistician for the
Pennsylvania Gaming Control Board ( "Board ") would cause the individual to be subject
to the restrictions of Section 1201(h)(13) of the Gaming Act following termination of the
individual's employment with the Board.
II. FACTUAL BASIS FOR DETERMINATION:
You are employed as a Statistician for the Board. You request a determination
from this Commission pursuant to Section 1201(h)(14) of the Gaming Act as to whether
the duties of your position with the Board would cause you to be subject to the restrictions
of Section 1201(h)(13) of the Gaming Act following termination of your employment with
the Board.
You have submitted a copy of the official classification specification ( "Classification
Specification ") for the position of Statistician for the Board, which document is
Incorporated herein by reference. Per the Classification Specification, under the
administrative direction of the Gaming Laboratory, a Statistician Is responsible for
evaluating the theoretical return for each gaming theme submitted for review. Examples
of work performed by a Statistician include:
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oN ember 9, 2018
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• Performing sufficient analysis of each different game theme to insure compliance
with regulations regarding payback percentage, volatility, odds of all available
awards, symbol weights, rules for bonus triggers and any unique rules for each
game;
• Verifying via independent analysis simulation programs submitted by
manufacturers and used for mathematical, statistical and probability calculations
to determine accuracy and, with regard to regulatory goals, integrity;
• Determining the combinatory outcome of all payouts represented in the submitted
program using probability, statistics, and permutation formulas;
• Developing computer algorithms to assist the agency in performing the necessary
mathematical, statistical and probability calculations required for game analysis;
• Using the appropriate statistical tools to analyze the collected data to determine
the randomness in the application of the pseudo random number generator;
• Creating reports and graphs to document the analysis and findings;
• Confirming accuracy and completeness of submission packages and accuracy of
accompanying checklists;
• Confirming statistical analysis of gaming devices;
• Coordinating with field units to verify that progressive parameters are within
compliance; and
• Verifying accuracy of award tables, rules and game description.
Classification Specification, at 1 -2.
You state that as a Statistician for the Board, you have no discretionary authority
and are not a decision - maker. You state that your job duties do not substantially involve
enforcement, licensing, or the development of law, regulations, or policy. You are not a
Bureau Director or an attorney for the Board.
You state that your work as a Statistician is primarily technical or mathematical in
nature and entails conducting analyses, performing calculations, and verifying information
provided to the Board. Your position is not a management position, and you are
supervised by the Director of Gaming Laboratory Operations. You state that you have
had no role in the current gaming expansion outlined in House Bill 271 (signed into law
on October 30, 2017, by Governor Tom Wolf).
By letter dated October 18, 2018, 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 24, 2018, you appeared to address the
Commission and answer any questions of the Commissioners. You stated that, as a
Statistician for the Board, you analyze and do calculations and have no discretion. You
stated that you are "two layers of bureaucracy" from making any decision.
III. DISCUSSION:
It is initially noted that determinations under Section 1201(h)(14) 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. § 1201(h)(14). In issuing the determination based
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Page 3
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 provisions of the Gaming Act that are relevant to your request provide as
follows:
§ 1201. Pennsylvania Gaming Control Board established.
(h) Qualifications and restrictions.
(13) The following shall apply to an employee of the
board whose duties substantially involve licensing,
enforcement, development of law, promulgation of
regulations or development of policy, relating 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,
including the executive director, bureau directors and
attorneys:
(i) The individual may not, for a period of
two years following termination of
employment, accept employment with or
be retained by an applicant or a licensed
entity or by an affiliate, intermediary,
subsidiary or holding company of an
applicant or a licensed entity.
(ii) The individual may not, for a period
of two years following termination of
employment, appear before the board in
a hearing or proceeding or participate in
activity on behalf of any applicant,
licensee, permittee or licensed entity or
on behalf of an affiliate, intermediary,
subsidiary or holding company of any
applicant, licensee, permittee or licensed
entity.
(iii) An applicant or a licensed entity or
an affiliate, intermediary, subsidiary or
holding company of an applicant or a
licensed entity may not, until the
expiration of two years following
termination of employment, employ or
retain the individual. Violation of this
subparagraph shall result in termination
of the individual's employment and
subject the violator to section 1518(c)
(relating to prohibited acts; penalties).
(iv) A prospective employee who, upon
employment, would be subject to this
Meluske , 18 -2001
November 9, 2018
Page 4
paragraph must, as a condition of
employment, sign an affidavit that the
prospective employee will not violate
subparagraph (i) or (ii). If the prospective
employee fails to sign the affidavit, the
board shall rescind any offer of
employment and shall not employ the
individual.
(14) The State Ethics Commission shall issue a written
determination of whether a person is subject to
paragraph (13) or (13.1) upon the written request of the
person or the person's employer or potential employer.
A person that relies in good faith on a determination
issued under this paragraph shall not be subject to any
penalty for an action taken, provided that all material
facts set forth in the request for the determination are
correct.
4 Pa.C.S. § 1201(h)(13),(14).
The determination as to whether a given person's duties as an employee of the
Board would bring such person within the scope of the restrictions of Section 1201(h)(13)
of the Gaming Act is based upon a review of the powers and duties of the position.
Typically, such powers and duties will be established by objective sources defining the
position, such as a job description, job classification s ecifications, and organizational
chart. To the extent the individual performs additional duties or has additional
responsibilities not reflected in the objective sources defining his position, such additional
duties and responsibilities shall also be considered as within his scope of authority. Cf.,
Sturgeon, Determination 10-2001.
In considering the Classification Specification, the necessary conclusion is that in
your position as a Statistician for the Board, your duties do not substantially involve
licensing, enforcement, development of law, promulgation of regulations or development
of policy relating to gaming under the Gaming Act, and you do not have other discretionary
authority which may affect or influence the outcome of an action, proceeding or decision
under the Gaming Act. See, 4 Pa.C.S. § 1201(h)(13).
Therefore, the restrictions of Section 1201(h)(13) of the Gaming Act would not be
applicable to you upon termination of your employment as a Statistician for the Board.
This determination is limited to addressing the specific question posed under
Section 1201(h)(14) of the Gaming Act. The post - employment restrictions of Section
1103(8) of the Ethics Act, 65 Pa.C.S. § 1103(g), have not been addressed herein.
IV. CONCLUSION; Based upon the submitted facts, in your position as a
Statisticianfor i� h FTennsylvania Gaming Control Board ( "Board "), your duties do not
substantially involve licensing, enforcement, development of law, promulgation of
regulations or development of policy relating to gaming under the Pennsylvania Race
Horse Development and Gaming Act ( "Gaming Act "), 4 Pa.C.S. § 1101 et seq., and you
do not have other discretionary authority which may affect or influence the outcome of an
action, proceedin%or decision under the Gamin ct. Therefore, the restrictions of
Section 1201(h)(1 of the Gaming Act, 4 Pei. S , §� 1201(h)(13), would not be applicable
to you upon termination of your employment as a Statistician for the Board.
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Page 5
An individual who relies in good faith on a determination issued by this Commission
as to such individual pursuant to Section 1201(h)(14) of the Gaming Act shall not be
subject to any enalty for an action taken in reliance on the determination, provided that
all material facErs 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,
h 4
Nicholas A. Colafella
Chair