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HomeMy WebLinkAbout23-2001 LovenheimPHONE: 717-783-1610 STATE ETHICS COMMISSION FAGSMLE: 717-787-0806 TOLL FREE.- 1-800,-932-0936 FINANCE BUILDING 'VVEBSITE: www,ethicszLa_goy 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 DETERMINATIO"IN OF THE COMMILSSIOLill Before: Shelley Y. Simms, Chair Michael A. Schwartz, Vice Chair Rhonda I -Till Wilson Paul E. Parsells, David L. Reddecliff Robert P. Caruso DATE DECIDED: 1/24/23 DATE MAILED: 1/26/23 To the Requester: 23-2001 Robert Lovenheim Dear Mr. Lovenheim: This is in response to your letter dated December 16, 2022, by 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)(I). I. ISSUE: Whether the Requester's service as a township Supervisor for Smithfield Township in Monroe County would bring him within the definition of the term "public official" set forth in Section 1512(b) of the Gaming Act, and therefore cause him to be subject to the restrictions of the Gaming Act at 4 Pa. C.S. § 1512(a. 1). 11. FACTUAL BASIS, FOR DETERMINATION: You request a determination from this Commission pursuant to Section 1512(a.5)(1) of the Gaming Act based upon the following submitted facts. You have applied for a gaming employee occupation permit for a part-time position on the security staff at Mt. Airy Casino in Paradise Township, Monroe County, Pennsylvania. In your application, you disclosed to the Pennsylvania Gaming Control Board ("Board") that you are all elected township supervisorfor Smithfield Township which also is located in Monroe County. The Board denied your application based upon the conclusion that you may be considered a "public official" as defined by Section 1512(b) of the Gaming Act due to your status as an elected official in Smithfield Township. The Board noted that both Smithfield Township and Mt. Airy Lovenheim, 22-2001 January 26, 2023 Page 2 Casino are located in Monroe County. At the request of the Board, you seep a determination from this Commission as to whether service as a township supervisor in Smithfield Township would bring you within the definition of the term "public official" set forth in Section 1512(b) of the Gaming Act, 4 Pa.C.S. § 1512(b), and would therefore cause you to be subject to the restrictions of the Gaming Act at 4 Pa.C.S. § 1512(a.1). You state that Smithfield Township receives no direct distribution of gaming revenue from Mt. Airy Casino, Paradise Township, or Pocono Mountain School District where the casino is located. The only monetary benefit that Smithfield Township is eligible to receive from gaming revenue is the Local Share grant awards program that is administered and controlled by the Pennsylvania Department of Community and Economic Development ("DCED"). DCED chooses the grant recipients, and if a grant is awarded, it is not considered revenue but rather a balance sheet asset that shall be used only for the specific purpose for which the grant was awarded. By letter dated .January 24, 2023, you were notified of the date, time and location of the public meeting at which your request would be considered. You appeared at the meeting and offered commentary consistent with the information provided in your written request for determination. III. 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 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 a]I of the material facts. Id. Section 1512(b) of the Gaming Act defines the term "public official" 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 under this part. Lovenheim, 22-2001 Jamiary 26, 2023 Page 3 (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. This term does not include a member of a school board or an individual who held an uncompensated office with a governmental body prior to January 1, 2006, and who no longer holds the office as of January 1, 2006. The term includes a member of an advisory board or commission which makes recommendations relating to a licensed facility. 4 Pa,C.S. § 1512(b). Paragraphs 1 and 2 of the above definition of the term "public official" clearly would not apply to you because they list particular public positions that you do not hold. Paragraphs 3 and 4 of the above definition of the term "public official" would not apply to you because Smithfield Township does not directly receive a distribution of revenue under the Gaming Act. While Mt. Airy Casino and Smithfield Township are located in the same county, that, in and of itself, does not establish that Smithfield Township receives a direct distribution of gaming revenue. Indeed, there is no submitted information to suggest that Smithfield Township receives a direct distribution of revenue under the Gaining Act. The only funds that arguably may be attributed to gaming revenue are the Local Share grant awards which are awarded and administered exclusively by DCED. Even the most expansive definition of "directly receives" would not encompass the grants under this DCED program. Paragraph 5 of the definition of "public official" would not apply to you because there is no indication in the submitted facts that a position on the Smithfield Township Board of Supervisors would have any involvement in: (1) developing regulation or policy related to a licensed entity in another township under the Gaming Act; or (2) other matters relating to the Gaming Act. The necessary determination of this Commission is that based upon the submitted facts, your service as a township supervisor for Smithfield Township in Monroe County would not bring you within the definition of the term "public official" set forth in Section 1512(b) of the Gaming Act, and therefore would not cause you to be subject to the restrictions of the Gaming Act at 4 Pa.C.S. § 1512(a.1). This determination is limited to addressing the specific question posed under Section 1512(a.5)(1) of the Gaming Act, 4 Pa.C.S. § 1512(a.5)(1). IV. CONCLUSION: Lovenheim, 22-2001 .January 26, 2023 Page 4 Based upon the submitted facts, your service as a township supervisor for Smithfield Township in Monroe County would not bring you within the definition of the term "public official" as set forth in Section 1512(b) of the Pennsylvania Race Horse Development and Gaming Act ("Gaming Act"), 4 Pa.C.S. § 1512(b), and therefore would not cause you to be subject to the restrictions of Section 1512(a.1) of the Gaming Act, 4 Pa.C.S. § 1512(a.1). 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 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, V-�, U Shelley Chair