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HomeMy WebLinkAbout25-511 Nese PHONE: 717-783-1610 STATE ETHICS COMMISSION FACSIMILE: 717-787-0806 TOLL FREE: 1-800-932-0936 FINANCE BUILDING WEBSITE: www.ethics.pa.gov 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 ADVICE OF COUNSEL March 18, 2025 To the Requester: Mario Nese 25-511 Dear Mr. Nese: This responds to your letter dated February 24, 2025, received March 3, 2025, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the issues presented below: Issues: (1) Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., would impose prohibitions or restrictions upon an individual employed as the Director of Surveillance for Mohegan Pennsylvania, who possesses a key employee license issued by the Pennsylvania Gaming Control Board, with regard to seeking election as a Member of Council for Old Forge Borough. Brief Answer: NO. The Ethics Act would not prohibit the individual from seeking election as a Member of Council for Old Forge Borough or from holding such position while employed with Mohegan Pennsylvania. However, if elected as a Member of Council for Old Forge Borough, the individual would generally have a conflict of interest under Section 1103(a) of the Ethics Act in matters before Old Forge Borough Council that would financially impact himself or Mohegan Pennsylvania, which is a business with which the individual is associated in his capacity as an employee. (2) Whether an individual serving in the position of Member of Old Forge Borough Council would be subject to the restrictions on employment in the gaming industry set forth in Section 1512(a.1) of the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act”), 4 Pa.C.S. § 1512(a.1). Nese, 25-511 March 18, 2025 Page 2 Brief Answer: NO. The position of Member of Council for Old Forge Borough is not included in the Ethics Commission’s biennially published list of all State, county, municipal and other government positions that are subject to various restrictions of the Gaming Act, including the employment restrictions of Section 1512(a.1) of the Gaming Act. Facts: You request an advisory from the Commission based upon the following submitted facts. You are employed as the Director of Surveillance for Mohegan Pennsylvania, in which capacity you possess a key employee license issued by the Pennsylvania Gaming Control Board. You are considering seeking election as a Member of Council for Old Forge Borough (“Borough”). You state that you seek guidance as to whether your candidacy for and potential holding of the public position of Borough Council Member would conflict with any regulations or ethical considerations applicable to your status as a licensed key employee with Mohegan Pennsylvania. In particular, you pose the following questions: (1) Whether your proposed candidacy for election to Borough Council would present you with any conflicts of interest under Pennsylvania’s gaming laws or ethical rules governing gaming license holders; (2) Whether holding elected office as a Borough Council Member would be permissible while maintaining your key employee license and employment in the gaming industry; (3) Whether there would be any disclosure or recusal requirements applicable to you if you would be elected as a Borough Council Member; and (4) Whether there would be any additional restrictions or considerations that may affect your ability to serve as a Borough Council Member while maintaining your employment with Mohegan Pennsylvania. Discussion: Pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the 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 material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all material facts. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities Nese, 25-511 March 18, 2025 Page 3 (a)Conflict of interest.--No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. -- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of membersof the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 1103(j). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 1102. Definitions “Public official.” Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. “Conflict” or “conflict of interest.” Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary Nese, 25-511 March 18, 2025 Page 4 benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. “Authority of office or employment.” The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. “Business.” Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. “Business with which he is associated.” Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act’s definition of the term “conflict” or “conflict of interest” (i.e., the “de minimis exclusion” or the “class/subclass exclusion”), 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Conclusion: In applying the above provisions of the Ethics Act to the instant matter, you are advised as follows. The Ethics Act appliesmainly to “public officials” and” public employees” as those terms are defined inthe Ethics Act. The Ethics Act would not prohibit you from seeking election as a Nese, 25-511 March 18, 2025 Page 5 Borough Council Member while you would be employed as the Director of Surveillance for Mohegan Pennsylvania. If you would be elected and assume office as a Borough Council Member, as a “person elected by the public,” you would be a “public official” as that term is defined in the Ethics Act, and in that capacity, you would be subject to the provisions of the Ethics Act. The Ethics Act would not prohibit you from serving as a Borough Council Member while employed with Mohegan Pennsylvania. Under the Ethics Act, Mohegan Pennsylvania would be considered a business with which you are associated as its Director of Surveillance. Pursuant to Section 1103(a) of the Ethics Act, you generally would have a conflict of interest in matters before Borough Council that would financially impact you or Mohegan Pennsylvania. In each instance of a conflict of interest, you would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. It must be noted that Section 1512(a.1) of the Gaming Act imposes employment restrictions upon individuals holding various positions, including the position of “public official” as that term is defined in the Gaming Act: Section 1512. Financial and employment interests. . . . (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 1512.1 (relating to additional restrictions), no executive-level public employee, public officialor party officer, or an immediate family member 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, 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. 4 Pa.C.S. § 1512(a.1). It is further noted that the Gaming Act’s definition of the term “public official” is different than the Ethics Act’s definition of that term. For purposes of the applicability of the employment restrictions set forth above, 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. Nese, 25-511 March 18, 2025 Page 6 (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. (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. . . . 4 Pa.C.S. § 1512(b). Pursuant to Section 1512(a.5) of the Gaming Act, the Ethics Commission is responsible for biennially publishing a listing of all State, county, municipal and other government positions meeting the definition of the term “public official” set forth in Section 1512(b) of the Gaming Act, for the purpose of enabling the identification of persons who would be subject to various restrictions of the Gaming Act, including the employment restrictions of Section 1512(a.1) of the Gaming Act. It is administratively noted that the position of Council Member for Old Forge Borough is not includedon the Ethics Commission’s 2024 Gaming Act List of positions that would be subject to the restrictions of Section 1512(a.1) and other Sections of the Gaming Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Nese, 25-511 March 18, 2025 Page 7 Any such appeal must be in writing and must be actually receivedat the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Bridget K. Guilfoyle Chief Counsel