PROPOSED RULEMAKING
PENNSYLVANIA GAMING CONTROL BOARD
[ 58 PA. CODE CHS. 401a AND 405a ]
Preliminary Provisions; Bureau of Investigations and Enforcement
[41 Pa.B. 1018]
[Saturday, February 26, 2011]The Pennsylvania Gaming Control Board (Board), under the general authority in 4 Pa.C.S. § 1202(b)(25) (relating to general and specific powers) and the specific authority in 4 Pa.C.S. §§ 1202.1 and 1516.1 (relating to code of conduct; and prosecutorial and adjudicatory functions) proposes to amend Chapters 401a and 405a (relating to preliminary provisions; and Bureau of Investigations and Enforcement) to read as set forth in Annex A.
Purpose of the Proposed Rulemaking
In accordance with revisions made to 4 Pa.C.S. Part II (relating to gaming) as part of the act of January 7, 2010 (P. L. 1, No. 1), the Board is proposing to amend Chapters 401a and 405a regarding ex parte communications and the separation of the adjudicatory functions of the Board or a presiding officer of the Board from the investigatory and prosecutorial functions of the Office of Enforcement Counsel (OEC) and the Bureau of Investigations and Enforcement (Bureau).
Explanation of Chapter 401a
Section 401a.3 (relating to definitions) amends the definition of ''ex parte communication'' for consistency with 4 Pa.C.S. Part II.
Section 401a.5 (relating to adjudicatory function of the Board; ex parte communications) is proposed to specify that the adjudicatory capacity of the Board or presiding officer will not be commingled with the prosecutorial or investigatory functions of the Bureau or OEC.
This section also addresses the prohibition on a Board member, presiding officer or an attorney from the Office of Chief Counsel who is advising the Board from engaging in ex parte communications with any person including an applicant, licensee, the Bureau or an attorney for the OEC. If a Board member, presiding officer or attorney from the Office of Chief Counsel does engage in an ex parte communication, the communication will be documented and notification of the communication and an opportunity to respond will be given to all parties. In addition to documenting the ex parte communication in a log, a member or presiding officer may be required to recuse himself. Section 401a.5(e) addresses the procedure for recusal of a presiding officer or Board member who engages in an ex parte communication that creates substantial reasonable doubt as to the individual's ability to act objectively, independently or impartially.
Explanation of Chapter 405a
Section 405a.1 (relating to general duties and powers) is amended to reiterate that the Bureau is independent of the Board, the Office of Hearings and Appeals and the Office of Chief Counsel and that the Bureau alone will dictate the scope and course of a background investigation without direction or limitation by the Executive Director or the Chief Counsel of the Board.
Section 405a.3(a)(7) (relating to Office of Enforcement Counsel) is proposed to reflect the additional authority given to OEC to petition the Board for the appointment of a trustee in accordance with section 1332 of the act (relating to appointment of trustee).
Section 405a.4 (relating to conduct) is amended for clarity.
Affected Parties
This proposed rulemaking affects presiding officers and members of the Board, the Office of Chief Counsel advising the Board as well as employees of the Bureau or OEC.
Fiscal Impact
Commonwealth—It is not anticipated that this proposed rulemaking will have a fiscal impact on the Board.
Political subdivisions—This proposed rulemaking will not have fiscal impact on political subdivisions of this Commonwealth.
Private sector—This proposed rulemaking will not have fiscal impact on the private sector.
General public—This proposed rulemaking will have no fiscal impact on the general public.
Paperwork Requirements
There are no paperwork requirements associated with this proposed rulemaking.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Public Comments
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking, within 30 days after the date of publication in the Pennsylvania Bulletin, to Susan A. Yocum, Assistant Chief Counsel, Pennsylvania Gaming Control Board, P. O. Box 69060, Harrisburg, PA 17106-9060, Attention; Public Comment on Table Game Equipment, Regulation # 125-141.
Contact Person
The contact person for questions about this proposed rulemaking is Susan Yocum, Assistant Chief Counsel, (717) 265-8356.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 14, 2011, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees. A copy of this material is available to the public upon request and is available on the Board's web site at www.pgcb.state.pa.us.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatoryreview criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
GREGORY C. FAJT,
ChairpersonFiscal Note: 125-141. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART VII. GAMING CONTROL BOARD
Subpart A. GENERAL PROVISIONS
CHAPTER 401a. PRELIMINARY PROVISIONS § 401a.3. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Ex parte communication—
(i) Any off-the-record [communications regarding] communication engaged in or received by a member or presiding officer of the Board regarding the merits of or any fact in issue relating to a pending matter before the Board or presiding officer or which may reasonably be expected to come before the [board] Board or presiding officer in a contested on-the record proceeding.
(ii) The term does not include [off] the following:
(A) Off-the-record communications by [and between members, staff and employees of the Board] or between a member or presiding officer of the Board, the Department, the Pennsylvania State Police, the Attorney General or other law enforcement [officials necessary for their official duties under this part] official prior to the beginning of the proceeding solely for the purpose of seeking clarification or correction to evidentiary materials intended for use in the proceedings.
(B) Communications between the Board or a member and the Office of Chief Counsel.
* * * * * (Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 401a.5. Adjudicatory function of the Board; ex parte communications.
(a) The Board or a presiding officer acts in an adjudicatory capacity when considering any matter presented for a decision by the Board or presiding officer in a contested on-the-record proceeding. To ensure the integrity and impartiality of the Board or presiding officer acting in an adjudicatory capacity, there will not be commingling of the adjudicatory functions of the Board or presiding officer and the investigatory or prosecutorial functions of the Bureau of Investigations and Enforcement or Office of Enforcement Counsel.
(b) When acting in an adjudicatory capacity regarding the facts at issue or merits of a matter pending before the Board or presiding officer, or which may reasonably be expected to come before the Board or presiding officer in a contested on-the-record proceeding, a member or presid-ing officer of the Board or an attorney from the Office of Chief Counsel who is advising the Board on the matter may not engage in an ex parte communication with any person including the Bureau of Investigations and Enforcement or the Office of Enforcement Counsel.
(c) An ex parte communication received or engaged in by a member or presiding officer of the Board will be recorded in a log which will be available for public inspection at the Board's office during normal business hours and will be posted on the Board's web site. The log must include:
(1) The name of the individual documenting the ex parte communication.
(2) The date and time of the ex parte communication.
(3) The names of all individuals involved in the ex parte communication.
(4) The subject discussed.
(d) In addition to documenting an ex parte communication in accordance with subsection (c), notification of the substance of the communication and an opportunity to respond will be provided to all parties to a hearing or other proceeding directly affected by the anticipated vote or action of the Board or presiding officer related to the ex parte communication.
(e) A member or presiding officer of the Board may be required to recuse himself if substantial reasonable doubt exists as to the individual's ability to act objectively, independently or impartially in a hearing or proceeding as follows:
(1) A member or presiding officer of the Board who engaged in or received an ex parte communication will recuse himself from any hearing or other proceeding related to the ex parte communication if the context and substance of the ex parte communication creates substantial reasonable doubt as to the individual's ability to act objectively, independently or impartially.
(2) A member or presiding officer of the Board who engaged in or received an ex parte communication who elects not to recuse himself from a hearing or other proceeding will state the reasons for not recusing himself on the record prior to the commencement of the hearing or proceeding.
(3) A member or presiding officer of the Board who has identified any other reason which creates substantial reasonable doubt as to the individual's ability to act objectively, independently or impartially will recuse himself from any hearing or other proceeding related thereto.
(4) If a legislative appointee recuses himself from any hearing or other proceeding under this section, any qualified majority vote required under this part will consist of all of the remaining legislative appointees and at least two gubernatorial appointees.
(5) Failure of a presiding officer, for whom substantial reasonable doubt as to the individual's ability to act objectively, independently or impartially exists, to recuse himself from a hearing or other proceeding when requiredunder paragraph (1) shall be grounds for appeal to the Board.
(6) Failure of a member, for whom substantial reasonable doubt as to the individual's ability to act objectively, independently or impartially exists, to recuse himself from a hearing or other proceeding when required will be grounds for appeal to a court of competent jurisdiction if the Board action being appealed could not have occurred without the participation of the member.
(f) Nothing in this subsection will preclude a member of the Board from consulting with other members individually if the consultation complies with 65 Pa.C.S. §§ 701—716 (relating to Sunshine Act) or with employees or independent contractors whose functions are to assist the Board in carrying out its adjudicative functions.
CHAPTER 405a. BUREAU OF INVESTIGATIONS AND ENFORCEMENT § 405a.1. General duties and powers.
(a) Except for administrative purposes, the Bureau is a distinct entity, independent of the Board, the Office of Chief Council and the Office of Hearings and Appeals.
(b) The Bureau has the powers and duties set forth in section 1517 of the act (relating to investigations and enforcement) including:
* * * * * (c) The Bureau will determine the scope of a background investigation, which may not be directed or limited by the Executive Director or Chief Counsel of the Board.
§ 405a.3. Office of Enforcement Counsel.
(a) The Office of Enforcement Counsel within the Bureau has the following powers and duties:
* * * * * (7) Petition the Board for the appointment of a trustee under section 1332 of the act (relating to appointment of trustee).
* * * * * § 405a.4. Conduct.
(a) [An] As provided in section 1202.1(c.1) of the act (relating to code of conduct), an attorney representing the Bureau or Office of Enforcement Counsel, or an employee involved in the hearing process, may not [discuss the case ex parte with a presiding officer assigned to the case,] engage in an ex parte communication with a member or presiding officer of the Board, the Chief Counsel or an attorney [assigned to the case] from the Office of Chief Counsel [or a Board member] who is advising the Board.
(b) A member or presiding officer of the Board, the Chief Counsel or an attorney [assigned to the case] from the Office of Chief Counsel [or a Board member] who advises the Board may not [discuss or] exercise [a] supervisory responsibility or exert influence over any employee of the Board or Bureau with respect to an enforcement proceeding or hearing with which the employee is involved.
* * * * *
[Pa.B. Doc. No. 11-327. Filed for public inspection February 25, 2011, 9:00 a.m.]
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