Treasurer wants access before final casino license is awarded

State Treasurer Rob McCord will soon find out if an emergency injunction will allow him to attend the state Gaming Control Board’s (GCB) meeting on Jan. 26 as a non-voting member.

The state treasurer is one of three non-voting members of the GCB, but Mr. McCord has been locked in a legal battle with the GCB since last summer over his right to attend the board’s executive sessions, when the board members deliberate and reach consensus on important issues.

At the Jan. 26 meeting, the GCB is expected to award the state’s 10th and final major casino license. The license was originally awarded to a Philadelphia-based development group in 2006 but was revoked by the board on Dec. 16 after numerous delays put the development of the casino in doubt.

Mr. McCord filed the request for the injunction on Jan. 6, asking the Commonwealth Court to grant him or his designee access to the GCB meeting. The two sides have been locked in a legal battle since last summer, when the GCB told Mr. McCord he would not be allowed to attend executive sessions because he is a non-voting member of the board.

The GCB argues Mr. McCord could exert political influence on the board’s decisions because he is an elected official who accepts campaign contributions. Jim Kutz, counsel for the GCB, said Wednesday there would be a “significant danger” created by the presence of an elected official in the board’s decision-making process.

“To participate in deliberations means the right to advocate for a position, without limitation,” said Mr. Kutz. Such advocacy leaves the board open to political influence, he said.

Christopher Craig, counsel for the state treasurer, said accusing Mr. McCord of exerting political influence on the board would be the same as accusing the governor – who appoints three of the seven voting members of the GCB – of being subject to political influence since he also receives political contributions and serves in elected office.

Mr. Craig said the state Gaming Act makes it clear the treasurer should be allowed access to the board’s executive sessions and that Mr. McCord should be provided with all “confidential and proprietary information” used by the board in reaching their decision.

“The treasurer should be able to participate in public meetings as a member of the board, not as a member of the public, with the exception of the right to cast a vote,” said Mr. Craig.

Commonwealth Court Judge Keith Quigley did not issue a decision from the bench Wednesday, though he said a decision would be rendered quickly.

The GCB has “quasi-judicial” immunity, which is granted to members because their roles in awarding casino licenses and regulating the industry are viewed as “functionally comparable” to that of judges. Voting members of the board are not allowed to hold elected office, but are all appointed by elected officials – three by the governor and one by each of the four caucus leaders in the General Assembly.

Last month the U.S. Circuit Court of Appeals for the 3rd District, which includes Pennsylvania, ruled the GCB’s insulation from political influence was not violated by the presence of a non-voting member in an executive session.

In that decision, Judge Leonard Garth said the law governing the GCB “mitigates any impropriety by denying those members – as distinct from the voting members – the ability to vote in licensing decisions. Accordingly, we conclude the Board is adequately insulated from political pressures.”

Mr. Craig submitted the Circuit Court’s decision as evidence Wednesday.

Mr. Kutz said the political influence potentially exerted by Mr. McCord goes beyond the treasurer’s ability to cast a vote. If the injunction is granted by the court, Mr. McCord would be allowed to make motions or second motions from others in executive sessions, and he would be allowed to deliberate before votes were taken.

Mr. Kutz said the GCB viewed the act of deliberating as being “as egregious” a threat to the board’s insulation as the act of voting, if the deliberations were subject to political influence.

At the same time, Mr. McCord’s lawsuit against the GCB is still on-going and the injunction would provide only temporary access to the executive sessions until Commonwealth Court makes a final determination.

On Dec. 15, 2010, the Commonwealth Court unanimously overruled the GCB’s preliminary objections to the treasurer’s lawsuit.

In that decision, President Judge Bonnie Leadbetter wrote the state’s Gaming Act “clearly provides that the treasurer or his designee shall serve on the board.”