State Treasurer Rob McCord today asked the Commonwealth Court to issue an injunction to grant him and his designee access to the Pennsylvania Gaming Control Board’s closed-door executive session meetings as provided by the Gaming Act – no later than its scheduled meeting on January 26, 2011.
“In light of Commonwealth Court’s recent decision, the Board’s continued attempt to obstruct my access to their secret executive deliberations is unacceptable,” Treasurer McCord said. “The Gaming Board is not a private club; it is a public agency that is expected to act in accordance with the Gaming Act. Its conduct is contrary to the law, the Commonwealth Court’s decision, and the public interest.”
On December 15, 2010, Commonwealth Court unanimously overruled the Gaming Board’s preliminary objections to McCord’s lawsuit seeking access to public and private Board deliberations. President Judge Leadbetter, writing for the Court, stated that the Gaming Act “clearly provides that the Treasurer or his designee shall serve on the Board…” The Court rejected the primary justifications raised by the Board in support of its attempt to exclude McCord, stating that “[t]he Sunshine Act, however, does not limit executive sessions to ‘voting members.’”
The Court also dismissed the Board’s professed concern that the involvement of the Treasurer in Board deliberations would create an appearance of impropriety. The Court noted in its Opinion that “the Treasurer is a Commonwealth official acting on behalf of the Commonwealth, not on behalf of gaming companies . . . [w]e do not see how the involvement of the Treasurer pursuant to statute creates any appearance of impropriety.”
Since the Commonwealth Court decision, the Board has continued to exclude the Treasurer and his designee from its executive sessions, attempting to impose several new preconditions to limit or otherwise prohibit the Treasurer or his designee from participating in its closed-door executive sessions. In particular, the Board wants to:
-- Prohibit the Treasurer’s statutorily authorized designee from attending or participating in all executive sessions involving a contested matter;
-- Prohibit the Treasurer from appointing more than one designee to attend Board proceedings, thereby forfeiting the right to substitute as circumstances warrant;
-- Require the Treasurer to sign a sworn statement stating that he has not accepted campaign contributions from law or lobbying firms that may represent a gaming interest or that he has not engaged in any ex parte conversation.
“The Board’s preconditions represent a new level of hypocrisy. I do not have a vote, yet the Board does not propose imposing these same conditions on its voting members,” said McCord. “In fact, this is the same Board whose former Chairman and voting member were publicly accused of engaging in ex parte conversations with legislators concerning the proposed Pittsburgh casino change of ownership.”
Board members are already required to sign and comply with a detailed code of conduct pursuant to the Gaming Act. Pennsylvania law presumes public officials act in accordance with the law. No other public official – judge, legislator or administrative official – is required to sign a similar statement.
As to the ability of the Treasurer to appoint a designee, while none of the voting members of the Gaming Board serve on any other Board, the Pennsylvania Treasurer serves on 16 other boards and commissions. Accordingly, the legislature recognized the need to amend the Gaming Act in 2006 to explicitly permit the Treasurer the right to appoint a designee to serve on the Board when he cannot. (See 4 Pa.C.S.A. § 1201(e).)
“The Board’s repeated attempt to block my right to appoint a designee is clearly motivated by a desire to limit informed involvement in its closed-door deliberations,” the Treasurer said. “These desperate efforts to exclude my involvement in Board proceedings makes me wonder, what are they trying to hide?”
“The Board’s continued obstruction is also a serious waste of money,” Treasurer McCord said, noting that the Gaming Board has hired four private attorneys to justify the Board’s conduct. “I expect the Board to spend in excess of $100,000 in private legal fees before this matter is concluded,” McCord said. “It’s truly shocking that at a time in which government officials are expected to be more circumspect about spending money, the Board senselessly continues this litigation.”
For more information, visit the PA State Treasurer website.