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Home My WebLink About19-2001 SmallPHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: wwwethIcs.puloy 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 Michael A. Schwartz Shelley Y. Simms DATE DECIDED: 10131/19 DATE MAILED: 1118/19 [to MOO To the Requester: Robert W. Small, Esquire Dear Mr. Small: This is in response to your letters dated September 6, 2019, and September 13, 2019, by which you requested a determination from this Commission pursuant to Section 12010)(14) and Section 1512(a.5) 512(a.581� of the Pennsylvania Race Horse Development and Gaming Act ("Gaming Act"), 4 Pa. . §§1201(h)(14),1512(a.5)(I). ISSUE: Whether the duties/authorityof an individual employed as a Casino Compliance Representative for the Pennsylvania Gaming Control Board Board") would cause the individual to be subject to the restrictions of Section 1201 �" or Section 1512(a), (a. 1), or (a.2) of the Gaming Act, 4 Pa.C.S. §§ 1201(h)(13), 1512(a), (a. 1), (a.2). 111. FACTUAL BASIS FOR DETERMINATION: On behalf of Mr. Joshua Couzens ("Mr. Couzens"), ou request a determination from this Commission pursuant to Section 1201(h ); 14) and'Section 1512(a.5)(1) of the Gaming Act as to whether Mr. Couzens' duties, authority as a Casino Coliance Representative for the Board would cause him to be subject to the restrictions of Section 12RN13� or Section1 5Za) i (a,l), or (a.2) of the Gaming Act, 4 Pa.C.S. §§ 1201 h 13 , 1512(a), (a, 1), (a. ). 1 This Commission's statutory authority to issue a determination pursuant to 4 Pa.C.S. § 1512(a.5)(1) is expressly limited to addressing whether a person is sub ect to Section 1512(a), (a. 1), or (a.2) of the Gaming Act' This Commission lacks express statutory authority to issue a determination as to the prohibitions of Section 1512((a.6)(1) of the Gamin� Act �ertainin to interactive gaming) but may exercise certain judgment per Section l I 12(a.6)(2). See,4 a.C. .§151 2 ?a,6). Small, 19-2001 Nov —ember 8, 2019 Page 2 You have submitted a copy of the official classification specification ("Classification Specification") for the position of Casino Compliance Representative for the Board, which document is incorporated herein b reference. You state that Mr. Couzens, is a Casino Compliance Representative 11. The Classification Specification does not distinguish between a Casino Compliance Representative I and a Casino Compliance Representative 11 except with respect to length of service and applicable pay scale. Classification Specification, at 3. Per the Classification Specification, a Casino Compliance Representative reports to the Board's Casino Compliance Supervisor or the Casino Compliance Senior Supervisor and/or the Director of the Bureau of Casino Compliance. A Casino Coaliance Representative is responsible for performing specific casino i compliance duties at licensed gaming facilities. A Casino Compliance Representative is responsible for monitoring the casino s. compliance with all of the Board's reulations, the a responsible internal n e and procedures, and Act 71 (the Gaming Act). 0 m 0 p facility es erf controls, policies activity i s as i n 0Fliance Representative include, inter olio: r I co tro ' p by a Carina f 0 rm I a in casino e c 'ity 0 work ' with operations; I ) Examples c i n inq - r e regarding rd g wl ion conducting n u s- (2) securing copies of various 6rms. r in compliance ance s rg 0 records 0 or u t g needed to ascertain h all laws and regulations; (3) performing f ec d s nee ongoing � 0 g i w of slat tl Ity to n n review I machine ac v ensure all machines are functioning as required, �cooperating 9 ti i t i ti ti 4 coopera ing with he investigation ion and prosecution of non -criminal Iyations of the r t in A 0controls; the gaming floor for I a cl am . n g Act, regulati ns, and/or internal controls; (5) observing suspicious activity, reporting suspicious activity, and providing follow-up as necessary to ensure compliance; (6) monitorl n all casino employees to ensure that they meet the Board's licensing requirements; working with the Bureau of Licensing to ensure that all vendors are licensed according to the Gaming Act and Bureau of Licensing regulations (8) monitoring all restrictive access points and all key controls and regularly review!n the jobs compendium for levels of authority and levels of access within the casino, �) �reparinq incident compliance reports for every reortable incident within the casino; (10 preparing regulatory compliance reports; and .11) serving as an on -site liaison for G-Tech to ensure that all machines are communicating properly, Classification ,,Specification,, at 1-2. You contend that Mr. Couzens' duties would not bring him within the scope of the restrictions at Section 1201(h)(13) or Section 1512 of the Gaming Act, 4 Pa.C.S. §§ 1201(h)(13), 1512. You request that this Commission issue a determination providin that Mr. Couzens would not be restricted from immediately accepting employment wN any entity upon termination of his employment with the Board. By letter dated October 17, 2019, you were notified of the date, time and location of the public meetingat which your request would be considered. At the public meeting C on October 31, 2010, you and Mr. Couzens presented the following arguments: (1) that a tangential relationship to licensing or enforcement is not "Substantial" involvement in such areas; (2) that "licensing" means grantingor withholding a license, and that Mr. Couzens has no role in granting, denying, or withdrawing a license; (3) that Mr. Couzens determines whether an already -licensed person/vendor com�lies with ongoing licensing obligations, in particular, displaying proper credentials; (4) t at Mr. Couzens can issue temporary credentials to already -licensed emlo?ees/vendors, but unlicensed persons are reported by Mr. Couzens and escorted outo the casino by casino security; (5) that monitoriny, observing, re rtin , and compliance do not constitute "enforcement" and do not fall wi hin SectionR'93) of the Gaming Act; (6) that "enforcement" is action by the Office of Enforcement for what it determines is a violation of the rules and regulations of the Board; (7) that Mr. Couzens identifies and brings issues to the attention of enforcement counsel but does not determine whether there will be an enforcement action; (8) that Mr. Couzens observes/reviews the work of others involved in securit casino surveillance, and the determination of the existence of suspicious activities, lbut if Mr. Couzens sees something suspicious, he brings it to the attention of casino security; and Small, 19-20101 N—ov&nber 8, 2019 Page 3 (9) that Mr. Couzens does not have discretionary authority that would subject him to the restrictions at issue, and, with regard to reporting, is obligated to submit certain reports. III. DISCUSSION: It is initiallynoted that determinations under Section 1201(h)(14) and 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. 1201(h)(14), 1512(a.5)(1). In issuing determination based upon the facts that Me requester has submitted, this mission 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 truthf ully disclosed all of the material facts. Id. The provisions of the Gaming Act that are relevant to the instant request for a determination of the Commission 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 gamin under this part or who has other discretionary authority which rnay affect or influence the outcome of an action, proceeding or decision under this part, including the executive director, bureau directors and attorneys: (1) 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 orby 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 ppi icant 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 Small, 19-2001 N—ov&nber 8, 2019 Page 4 to section 1518(c) (relating to prohibited acts; penalties), (iv) A prospective employee who, upon employment, would be subject to this 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. § 1512. 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 interest in an applicant or a slot machine licensee, manufacturer licensee, supplier licensee or licensed racing entity, 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. (a.1) Employment. --Except as may be provided by rule or order of the Pennsylvania Supreme Court and except as provided in section 1202.1 (relating to code of conduct) or r52i ' 1 (relating to additional restrictions), no executive -level public employee, public official or party officer, or an immediate familymember thereof, shall be employed by an applicant or a slot machine licensee, manufacturer licensee, supplier licensee or licensed racing entity, or by any holding company, affiliate, intermediaryor 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. (a.2.) Complimentary services.-- (1) No executive -level public employee, public official or party officer, or an immediate family member thereof, shall solicit or accept any complimentary service from an applicant or a slot machine licensee, manufacturer licensee, supplier licensee or licensed racing entity, or from z e, intermediary, subsidiary or holding company thereof, which the executive - level public employee, public official or party officer, or an immediate family member thereof, knows or has reason to know is other than a service or discount which is offered to members of the general public in like circumstances. 4 Pa.C.S, §§ 1201 (h)(1 3); 1512(a), (a,l), (a.2)(1). SmaH, 19-2001 Nov —ember 8, 2019 Page 5 The restrictions of Section 1201(h)(13) of the Gaming Act are post -employment restrictions that apply as 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 thisgart, includin the executive director, bureau directors and attorneys." 4 Pa.C. . § 1201(h)?13). The restrictions apply for two years following termination of the individual's employment. The restrictions of Section 1512(a), (a.1), and (a.2) of the Gaming Act -pertaining to financial interests, employment, and complimentary services —apply to executive -level public emplo, ees, public officials, and party officers, as well as their immediate family members. The restrictions of all three subsections apply to an executive level public employee of the Board while the individual is an executive -level public employee, and the restrictions of Section 1512(a) and (a.1) continue to appl( for one year following termination of the individual's status as an executive -level public employee. The Gaming Act defines the term "executive -level public employee" as follows: § 11103. Definitions. "Executive -level public employee." --The term shall include the following: (1) Deputy Secretaries of the Commonwealth and the Governor's 0 ice executive staff. (2) An employee m I ee of the executive branch whose duties substanfiaol y 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 art. The term shall t authority. (4) An employee of a department, agency, board, commission, authority or other overnmental body not included in paragraph 1), (2) or $) 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 . , ��ie 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. We take administrative notice of the fact that the positions of Casino Compliance Representative I and Casino Compliance Representative 11 are both included on this Commission's published lists of positions at the Board which are considered subject to the restrictions of Section 1201(h 13) and Section 1512 of the Gaming Act, See, 4 Pa.C.S. §§ 1201(h)(14.1), 1512(a.A(2). Small, 19-2001 November 8, 2019 Page 6 The determination as to whether a given person's duties as an emplo ee of the Board would bring such person within the scope of the restrictions of Section Mll(h)(13) or Section 1512(a), (a.1), or (a.2) of the Gaming Act is based upon a review of the powers and duties of the position. Typically, such powers and duties will be establishedby objective sources defining the position, such as a job description, job classification specifications, 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.,, Meluske , Determination 18-2001; Stuff, Determination 10- 2001. In considering the Classification Specification for the position of Casino Compliance Representative, the necessary conclusion is that the following duties/authority of a Casino Compliance Representative substantially involve licensing or enforcement under the Gaming Act and discretionary authority which may affect or influence the outcome of an action, proceeding or decision of the Board under the Gamin Act: (1) performing specific casino compliance duties at licensed gaming facilities, ilities; (29 monitoring the casino s compliance with all of the Board's regulations, the facility's internal controls, policies and rocedures, and the Gaming Act; conducting inquiries regarding d casino operations; (4� performing ongoing review of X0 machine activity to ensure aii machines are functioning as required; (5) cooperating with the investi�ation and prosecution of non -criminal violations of the Gaming Act, regulations, and/or internal controls; (6 observing the gaming floor for suspicious activity, reporting suspicious activity, a0 providing follow-up as necessary to ensure compliance; (7) monitoring all casino employees to ensure that they meet the Board's I requirements; an (8) workingwith the Bureau of Licensing to ensure that all = are properly licensed. Classification Spqgification, at 1-2. As a Casino Compliance Representative, Mr. Couzens clearly has discretionary authority which may affect or influence the outcome of an action, proceeding or decision of the Board under the Gaming Act. Additionally,, while there are Board departments with roles involving licensing and enforcement, as we as casino employees providing security and surveillance, Mr. Couzens as a Casino Compliance Representative is a representative of the Board who is physically present on the floor of casino for the purpose of ensuring compliance with the Gaming Act. We determine that the aforesaid duties/authority would subject Mr. Couzens to the restrictions of Section 1201(h)(13) of the Gaming Act, Additionally, as a Casino Compliance Representative, Mr. Couzens would be considered an "executive -level public n em I veel� as the Gamin?,, Act defines that term, 4 Pa.C.S. § 1103, Therefore, the restrictions of Section 15 2(a), (a.1), and (a. 2) the Gaming Act would apply to Mr. Couzens while ernTloyed as a Casino Compliance ce Representative with the Board, and the restrictions of Section 1512(a and (a.1) would continue to apply to Mr. Couzens for one year following termination of �is status as an executive -level public employee. This determination is limited to addressing the specific question posed under Section 1208h)(13) and Section 1512(a), (a.1), and (a.2) of the Gaminy Act 4 Pa.C.S. M1201(h)(1 ), 1512(a), (a.1 and (a.2). The restrictions of Section 51246) of the amin Y, )3(g) of the Public Official and Employee 4 Pa.C.S. § 11 12(a.6), and Section 11C Emp y e Ethics Act, 65 Pa.C.S. § 1103(g), have not been addressed herein. IV. CONCLUSION: Based upon the submitted facts, as a Casino Compliance Representativ5 fo—r-7fie Pennsylvania Gaming Control Board ("Board"), Mr. Joshua Couzens ("Mr. Couzens") would be considered an "executive -level public emplo eelo as the Pennsylvania Race Horse Development and Gamin ("Gaming A,,t"', 4 �a.C.S, M Couzens'du Act" as a 1101 et seq., defines that term, 4 Pa.C.S. § 1103. r? Act ("G Vies/a Mino -Compliance Representative for the Board would subject Mr. Couzens to the Small, 119-2001 fTo_v&nber 8, 2019 Page 7 restrictions of Section 1201 (h)(1 3 of the Gaminq Act, The restrictions of Section 1512(a), �a.1), and (a.2) of the Gaming Act would applyto Mr. Couzens while employed as a asino Compliance Representative with the oard, and the restrictions of Section 1512(a) and (a.1) would continue to apply to Mr. Couzens for one year following termination of his status as an executive -level public employee. An individual who relies in ood faith on a determination issued by this Commission as to Such individual pursuant Vo Section 1201(h)(14) or 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. Colafell Chair