HomeMy WebLinkAbout07-2001I. ISSUE:
OPINION OF THE COMMISSION
Michelle Afragola, Esquire
114 Huckleberry Hill Road, Apt F
Avon, CT 06001
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
DATE DECIDED: 3/28/07
DATE MAILED: 4/11/07
07 -2001
Dear Ms. Afragola:
This responds to your letter dated January 3, 2007, received January 8, 2007, by
which you requested a determination from this Commission pursuant to Sections
1201(h)(13) -(14) of the Pennsylvania Race Horse Development and Gaming Act
( "Gaming Act "), 4 Pa.C.S. §§ 1201(h)(13) -(14).
Whether the duties of an individual serving in the position of Deputy Director of
Regulatory Review for the Pennsylvania Gaming Control Board ("Board") would
substantially involve licensing, enforcement, or the development or adoption of
regulations or policy under the Gaming Act so as to bring such individual within the
scope of the prohibitions of Section 1201(h)(13) of the Gaming Act, 4 Pa.C.S. §
1201(h)(13).
II. FACTUAL BASIS FOR DETERMINATION:
At the time you submitted your request for a determination under the Gaming
Act, you were serving as the Deputy Director of Regulatory Review for the Board. You
were planning to terminate your employment with the Board and relocate to
Connecticut. You noted that you are an attorney admitted to practice in Connecticut.
However, you are not admitted to practice law in Pennsylvania.
You stated that as the Deputy Director of Regulatory Review for the Board, you
have been involved in the development, drafting, amendment and promulgation of
temporary regulations under the Gaming Act. You submitted a copy of the draft
Classification Specification for your position, which had not yet been formally approved
Afraqola, 07 -2001
April 11, 2007
Page 2
by the Board. You confirmed the accuracy of the draft Classification Specification,
which draft is incorporated herein by reference.
The draft Classification Specification for the position of Deputy Director of
Regulatory Review for the Board includes, inter alia, the following:
Class Summary:
This is a professional position that involves the development,
drafting, editing and promulgation of the Board's regulations.
This position works closely with and reports to the Director of
Regulatory Review in the Office of Chief Counsel. The
employee will also be required to report to and receive work
assignments from the Chief Counsel.
The employee in this class is responsible for developing of
[sic] policies and drafting regulations designed to implement
the provisions and intent of Act 71 and the promulgation of
regulations consistent with the requirements of the
Commonwealth Documents Law and the Regulatory Review
Act. This involves working closely with the other Directors
and staff in other Board bureaus, the Legislative Reference
Bureau, the House and Senate Standing Committees and
the Independent Regulatory Review Commission.
Work is performed with wide latitude for independent
judgment and employee is expected to respond to
assignments with promptness, efficiency and a thorough
examination of all issues.
Examples of Work May Include but Are Not Limited To:
Analyzes, develops and organizes regulatory issues and
clearly presenting [sic] these issues orally and in writing to
develop policies or regulations to implement the Board's
regulatory responsibilities under Act 71.
Develops and Analyzes competing regulatory options.
Presents issues and matters to the Board, other agencies
and outside entities.
Respond to and effectively communicate with Board staff,
legislative staff, staff of other agencies, applicants and
licensees, and members of the general public.
Analyzes case law and case law developments relevant to
the development of regulations both at the State and Federal
level.
Draft Classification Specification, at 1.
In a February 21, 2007, communication to Commission staff, you indicated that
you are no longer employed by the Board and that you have relocated to Connecticut.
The question that you have posed is whether the post- employment restrictions
contained in Section 1201(h)(13) of the Gaming Act would prohibit you from accepting
Afraqola, 07 -2001
April 11, 2007
Page 3
an attorney position in Connecticut with an entity licensed by the Board or any affiliate,
intermediary, subsidiary or holding company thereof.
On March 19, 2007, this Commission received your Brief, in which you present
the following arguments.
Your first main argument is that the post - employment restrictions at Section
1201(h)(13) of the Gaming Act should not be construed to apply to the position of
Deputy Director of Regulatory Review for the Board. You contend that Section
1201(h)(13) does not apply to employees lacking discretionary authority, and that as
Deputy Director of Regulatory Review for the Board, you lacked discretionary authority
because you reported to the Director of Regulatory Review, who reported to Chief
Counsel, who in turn reported to the Executive Director of the Board.
In support of your contention that Section 1201(h)(13) does not apply to
employees lacking discretionary authority, you cite former Section 1201(h)(9) of the
Gaming Act, which imposed revolving -door restrictions upon Board Members and
executive -level employees and appointees or officials of the Board. You contend that
former Section 1201(h)(9) evidenced a legislative intent to limit post - employment
restrictions to employees whose actions affected the Board. You claim that former
Section 1201(h)(9) would not have applied to you.
You assert that the current provision at Section 1201(h)(13) retains the legislative
intent to limit the post - employment restrictions to employees with executive -level
authority. You cite no legal authority in support of this assertion. You acknowledge that
the current provision is different, applying to employees of the Board or independent
contractors of the Board whose duties "substantially involve" licensing, enforcement or
the development or adoption of regulations or policy under the Gaming Act (4 Pa.C.S. §
1201 (h)(13)). You state that the phraseology "substantially involve" does not provide a
clear standard as to the level of employee that is subject to the post - employment
restriction. You assert that although you were involved in the regulatory process, you
were not substantially involved in and you did not participate in the decisions associated
with the development or adoption of regulations or policy, which decision - making
authority rested with your supervisors and the Board.
Additionally, you urge this Commission to interpret the phraseology "employment
relating to the conduct of gaming" as it appears in subparagraph (i) of Section
1201(h)(13) to limit the applicability of the restriction to those individuals with the ability
to affect the operation of licensed gaming facilities. In support of your proffered
interpretation, you reference definitions of the term "conduct of gaming" that were
considered by the House and Senate but were not included within the Gaming Act
amendments enacted by Act 135 of 2006.
In sum, your first main argument is that the post - employment restrictions at
Section 1201(h)(13) of the Gaming Act would not apply to you in your former position as
Deputy Director of Regulatory Review for the Board, based upon your view that your
position lacked discretionary authority and did not involve the "conduct of gaming" as
you would interpret that phrase.
Your second main argument is that an application of the restrictions of Section
1201(h)(13) to you would improperly limit your ability to practice law in Connecticut.
In support of this argument, you assert that the Superior Court of Connecticut
has the authority to regulate the practice of law in Connecticut, and that you are subject
to the Rules of Professional Conduct applicable to Connecticut attorneys. You indicate
that the Connecticut Rules of Professional Conduct address attorneys' duties to former
clients and include provisions pertaining to former and current government officers and
employees.
Afraqola, 07 -2001
April 11, 2007
Page 4
You cite the Pennsylvania Supreme Court decisions in Waled v. State Ethics
Commission, 491 Pa. 255, 420 A.2d 439 (1980) and Shaulis v. State Ethics
Commission, 574 Pa. 680, 833 A.2d 123 (2003), in which the Supreme Court of
Pennsylvania determined that the post - employment restrictions of the Public Official and
Employee Ethics Act ( "Ethics Act ") (now codified at 65 Pa.C.S. § 1101 et seq.) are
unconstitutional as applied to attorneys, including former judges, engaged in the
practice of law. You contend that the restriction at Section 1201(h)(13) of the Gaming
Act improperly targets attorneys and is an improper regulation of attorneys. You argue
that under the holding of Shaulis, Section 1201(h)(13) of the Gaming Act cannot be
applied to attorneys who are former employees of the Gaming Board because such an
application would infringe upon the Pennsylvania Supreme Court's exclusive authority
to regulate the practice of law. You further contend that Section 1201(h)(13) cannot be
further construed to restrict the practice of law by an attorney in another jurisdiction.
III. DISCUSSION:
It is initially noted that determinations under Sections 1201(h)(13) -(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(13) -(14). In issuing the
determination 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 of the material facts relevant to the inquiry. 4 Pa.C.S. §§ 1201(14). 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) No employee of the board or individual
employed by an independent contractor of the board
whose duties substantially involve licensing,
enforcement or the development or adoption of
regulations or policy under this part shall:
(i) accept employment with an
applicant, licensed entity, or an affiliate,
intermediary, subsidiary or holding
company thereof, for a period of one
year after the termination of the
employment relating to the conduct of
gaming or contract with the board; or
(ii) appear before the board in any
hearing or proceeding or participate in
any other activity on behalf of any
applicant, licensee, permittee, licensed
entity, or an affiliate, intermediary,
subsidiary or holding company thereof,
for a period of two years after
termination of the employment or
contract with the board.
Afraqola, 07 -2001
April 11, 2007
Page 5
(14) Upon the written request of an employee of the
board, the executive branch of the Commonwealth or
a political subdivision or of the agency or political
subdivision employing an employee, the State Ethics
Commission shall determine whether the individual's
duties substantially involve the development or
adoption of regulations or policy, licensing or
enforcement, under this part, and shall provide a
written determination to the employee to include any
prohibition under this paragraph. An individual who
relies in good faith on a determination 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 a determination are correct.
(15) If a member, employee or independent
contractor of the board violates any provision of this
section, the appointing authority or the board may,
upon notice and hearing, remove the person from the
board, withdraw the appointment or terminate the
employment or contract and the person shall be
ineligible for future appointment, employment or
contract with the board and for approval of a license
or permit under this part for a period of two years
thereafter.
4 Pa.C.S. §§ 1201(h)(13) -(15).
When applicable, the restrictions of Section 1201(h)(13) of the Gaming Act
prohibit an employee of the Board or an employee of an independent contractor of the
Board from: (1) accepting employment with an applicant, licensed entity or an affiliate,
intermediary, subsidiary or holding company thereof for one year following termination
of such employment or contract; and (2) appearing before the Board in any hearing or
proceeding or participating in any other activity on behalf of any applicant, licensee,
permittee, licensed entity, or an affiliate, intermediary, subsidiary or holding company
thereof for two years following termination of such employment or contract.
The determination as to whether a given individual's duties as an employee of
either the Board or an independent contractor of the Board substantially involve
licensing, enforcement or the development or adoption of regulations or policy under 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 specifications, and organizational chart. An
individual's claims that he does not actually perform the duties authorized by the
objective sources defining his position shall not preclude the Commission from
considering such duties as within the scope of his authority. Cf., Phillips v. State Ethics
Commission, 470 A.2d 659 (Pa. Commw. Ct. 1984); Shearer, Opinion 03 -011. To the
extent the individual factually 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 the individual's scope of authority.
The term "substantially involve" is not defined in the Gaming Act or in the
Statutory Construction Act at 1 Pa.C.S. § 1991. Pursuant to the Statutory Construction
Act, the non - technical, non - peculiar words and phrases of a statute are to be construed
according to rules of grammar and their common and approved usage. 1 Pa.C.S. §
1903(a).
Afraqola, 07 -2001
April 11, 2007
Page 6
The Merriam - Webster Online Dictionary provides the following potentially
relevant meanings for the terms "substantial" and "involve ":
substantial
la: consisting of or relating to substance .. c:
IMPORTANT, ESSENTIAL
3b: considerable in quantity: significantly great ...
5: being largely but not wholly that which is specified ...
involve
4b: to relate closely: CONNECT
5a: to have within or as part of itself: INCLUDE b: to
require as a necessary accompaniment: ENTAIL C:
AFFECT ...
Merriam - Webster Online Dictionary.
The American Heritage Dictionary of the English Language, Fourth Edition
42000) (online) provides the following potentially relevant meanings for the terms
"substantial" and "involve ":
substantial
1. Of, relating to, or having substance; material.
5. Considerable in importance, value, degree, amount or
extent ...
involve
1. To contain as a part; include.
2. To have as a necessary feature or consequence; entail ...
4.b. To influence or affect ...
Based upon common and approved usage, the term "substantially involve" as set
forth in Section 1201(h)(13) of the Gaming Act means "significantly include or affect."
In reviewing the submitted facts, the duties of the Deputy Director of Regulatory
Review for the Board include the development, drafting, editing and promulgation of the
Board's regulations and the development of policies designed to implement the
provisions and intent of the Gaming Act. Draft Classification Specification, at 1. The
individual serving in this position works closely with the other Directors and staff in other
Board bureaus, the Legislative Reference Bureau, the House and Senate Standing
Committees and the Independent Regulatory Review Commission. Work is performed
with wide latitude for independent judgment. Id.
Based upon a straightforward reading of the draft Classification Specification, the
necessary conclusion is that the duties of the Deputy Director of Regulatory Review for
the Board "substantially involve," that is, "significantly include or affect," the
development or adoption of regulations or policy under the Gaming Act.
Afraqola, 07 -2001
April 11, 2007
Page 7
We reject your arguments to the contrary. You have cited no legal authority that
would support your contention that Section 1201(h)(13) only applies to executive -level
employees. Furthermore, if the General Assembly had intended for Section 1201(h)(13)
to be limited in scope to executive -level employees, it would have so stated. Instead,
the General Assembly chose to make Section 1201(h)(13) applicable to a broader
category of employees whose duties "substantially involve" licensing, enforcement or
the development or adoption of regulations or policy under the Gaming Act. Your
reliance upon former Section 1201(h)(9) is unfounded, given that the General Assembly
deliberately removed former Section 1201(h)(9) and added Section 1201(h)(13).
Likewise, we reject your argument that we should interpret the phraseology
"employment relating to the conduct of gaming" as it appears in subparagraph (i) of the
Section 1201(h)(13) restriction to limit the applicability of the restriction to those
individuals with the ability to affect the operation of licensed gaming facilities. In the
absence of any statutory definition of the phraseology and based upon common and
approved usage, it is simply a very broad, general reference to gaming - related
employment. We decline to consider definitions that you state were considered by the
House and Senate, but that following consideration, were not included within the
Gaming Act amendments enacted by Act 135 of 2006. The object of all interpretation
and construction of statutes is to ascertain and effectuate the intention of the General
Assembly ..." 1 Pa.C.S. § 1921(a). The General Assembly's rejection of proposed
definitions would seem to indicate that it did not intend for them to be used.
We hold that in your former capacity as the Deputy Director of Regulatory
Review for the Board, your duties substantially involved the development or adoption of
regulations or policy under the Gaming Act, and that you are therefore subject to the
prohibitions of Section 1201(h)(13) of the Gaming Act quoted above unless you qualify
for exclusion from such prohibitions given your status as an attorney admitted to
practice in Connecticut.
We do not have the statutory jurisdiction to determine whether your status as an
attorney in Connecticut would exclude you from the prohibitions of Section 1201(h)(13)
of the Gaming Act. The answer to that question would hinge upon various legal issues
that only a court could decide.
Fundamentally, it is for the Pennsylvania Supreme Court to determine whether to
exclude attorneys from the prohibitions of Section 1201(h)(13) of the Gaming Act. This
Commission does not presume to know what approach the Court might take in that
regard. Although the Court might take a Shaulis approach, it might just as well
determine that attorneys shall be subject to the prohibitions of Section 1201(h)(13)—
indeed, the Court could easily adopt its own Rule or Order to that effect. (Cf., Supreme
Court Order of December 22, 2003, amending Rule 1.19 and the Comment to Rule 1.6
of the Pennsylvania Rules of Professional Conduct to require lawyers acting as
lobbyists to comply with statutes, resolutions or regulations regulating lobbying, which
are consistent with the Pennsylvania Rules of Professional Conduct.) It is also possible
that the Court might find at least some of the prohibitions of Section 1201(h)(13) of the
Gaming Act to be distinguishable from the prohibitions of Section 1103(g) of the Ethics
Act reviewed in Shaulis. (Cf., P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d
174 (1999).
In addition to the fundamental question of whether attorneys will be subject to the
prohibitions of Section 1201(h)(13) of the Gaming Act, there are additional legal issues
presented by the facts that you have submitted, given that you are not admitted to
practice in Pennsylvania and that you have now relocated out -of -state to Connecticut
where you are admitted to practice.
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April 11, 2007
Page 8
It is suggested that you consider filing a declaratory judgment action with a court
of appropriate jurisdiction to determine the impact, if any, of your status as a
Connecticut attorney.
Based upon the facts that have been submitted, this determination has only
addressed Sections 1201(h)(13) -(15) of the Gaming Act.
IV. CONCLUSION:
The duties of the Deputy Director of Regulatory Review for the Pennsylvania
Gaming Control Board ( "Board') substantially involve the development or adoption of
regulations or policy under the Gaming Act. An individual who in January or February
2007 terminated employment as the Deputy Director of Regulatory Review for the
Board ( "Board "), and who is an attorney admitted to practice in Connecticut but not in
Pennsylvania, would be subject to the prohibitions of Section 1201(h)(13) of the Gaming
Act unless such individual would qualify for exclusion from the prohibitions based upon
status as an attorney admitted to practice in Connecticut. It is for the Pennsylvania
Supreme Court to determine whether to exclude attorneys from the prohibitions of
Section 1201(h)(13) of the Gaming Act. The request for a determination of this
Commission has only been addressed under §§ 1201(h)(13) -(15) of the Gaming Act.
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 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,
Louis W. Fryman
Chair