Yocum v. Commonwealth, Pennsylvania Gaming Control Board

161 A.3d 228, 639 Pa. 521, 2017 WL 2291771, 2017 Pa. LEXIS 1208
CourtSupreme Court of Pennsylvania
DecidedMay 25, 2017
DocketYocum v. PA Gaming Control Board - No. 74 MM 2015
StatusPublished
Cited by35 cases

This text of 161 A.3d 228 (Yocum v. Commonwealth, Pennsylvania Gaming Control Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yocum v. Commonwealth, Pennsylvania Gaming Control Board, 161 A.3d 228, 639 Pa. 521, 2017 WL 2291771, 2017 Pa. LEXIS 1208 (Pa. 2017).

Opinions

OPINION

JUSTICE DOUGHERTY

We consider the petition for review filed by Susan A. Yocum, Esquire, in this Court’s original jurisdiction pursuant to the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904 (the Gaming Act). Petitioner challenges as unconstitutional certain restrictions imposed upon attorneys who are employed by the Pennsylvania Gam[527]*527ing Control Board (Board), and seeks declaratory and injunc-tive relief. The Board filed preliminary objections, asserting petitioner lacks standing to pursue her claim, her claim is not yet ripe, and in any event, her claim fails on the merits. We overrule the Board’s preliminary objections as to standing and ripeness, but nevertheless conclude petitioner is not entitled to relief on the merits as the restrictions included in the Gaming Act are constitutionally sound.1

Petitioner is an attorney employed by the Board. At all relevant times, the Gaming Act has set forth various requirements and restrictions applicable to Board members and certain other persons employed by and associated with the Board. When petitioner was first hired in 2008, the Gaming Act prohibited Board employees from soliciting, recommending or accepting employment with a licensed gaming facility for a period of two years after termination of employment with the Board.2 The Gaming Act also restricted Board employees from accepting employment with an applicant, licensed entity, affiliate, intermediary subsidiary or holding company of an applicant or licensed entity for one year after termination, and appearing before the Board in any hearing or proceeding for two years after termination.3 In 2010, the Act was amended to, inter alia, specifically identify the executive director, bureau directors and attorneys as types of employees prohibited from appearing before the Board for two years after termination, and also to extend the general one-year prohibition on accepting employment with a licensed gaming entity or an affiliate, intermediary, subsidiary or holding company of an applicant or licensed entity to two years after termination. 4 Pa.C.S. [528]*528§ 1201(h)(13) (as amended 2010). Specifically, Section 1201(h) currently provides in pertinent part as follows:

(h) Qualifications and restrictions.—
$ ⅜ ⅜ ⅜
(8) No member, employee or independent contractor of the board may directly or indirectly solicit, request, suggest or recommend to any applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof or to any principal, employee, independent contractor or agent thereof, the appointment or employment of any person in any capacity by the applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof for a period of two years from the termination of term of office, employment or contract with the board.
⅜» íjí íj»
(13) The following shall apply to an employee of the board whose duties substantially involve licensing, enforcement, development of law, promulgation of regulations or development of policy, relating to gaming under this part or who has other discretionary authority which may affect or influence the outcome of an action, proceeding or decision under this part, including the executive director, bureau directors and attorneys:
(i) The individual may not, for a period of two years following termination of employment, accept employment with or be retained by an applicant or a licensed entity or by an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity.
(ii) The individual may not, for a period of two years following termination of employment, appear before the board in a hearing or proceeding or participate in activity on behalf of any applicant, licensee, permittee or licensed entity or on behalf of an affiliate, intermediary, subsidiary or holding company of any applicant, licensee, permittee or licensed entity.
(iii) An applicant or a licensed entity or an affiliate, intermediary, subsidiary or holding company of an applicant [529]*529or a licensed entity may not, until the expiration of two years following termination of employment, employ or retain the individual. Violation of this subparagraph shall result in termination of the individual’s employment and subject the violator to section 1518(c) (relating to prohibited acts; penalties).
(iv) A prospective employee who, upon employment, would be subject to this paragraph must, as a condition of employment, sign an affidavit that the prospective employee will not violate subparagraph (i) or (ii). If the prospective employee fails to sign the affidavit, the board shall rescind any offer of employment and shall not employ the individual.

4 Pa.C.S. § 1201(h)(8) and (13) (emphases added). Petitioner— who holds the position of Assistant Chief Counsel III—is subject to the restrictions identified in Section 1201(h)(8) and (13). See 4 Pa.C.S. § 1201(h)(14.1); Petition for Review, Exhibit B.

Petitioner, who now wishes to seek and accept new employment as an attorney representing gaming clients, filed this petition for review requesting: (1) a declaration the restrictions of Section 1208(h) violate Article V, Section 10 of the Pennsylvania Constitution,4 which vests in this Court the exclusive authority to govern the practice of law; and (2) a permanent injunction against the enforcement of the challenged restrictions. Specifically, petitioner alleges that, “[a]s a [530]*530current Gaming Board attorney, [she] desires to seek and accept employment as an attorney representing gaming clients.” Amended Petition for Review at ¶ 6. She states she is currently “faced with two equally unappealing and untenable options to leave the employ of the Gaming Board.” Id. at ¶ 8.

Option one is to test the Gaming Act’s employment provisions by violating them, actively seeking a legal position with a licensee, affiliate or law firm that represents licensees or affiliates knowing that if Petitioner accepted a position and left the Gaming Board, the licensee or affiliate could be subject to administrative penalties, Petitioner’s position, by statute, would be terminated and Petitioner could be subject to sanction for breach of fiduciary duty to clients for placing Petitioner’s interests before her client’s interests. Thus, Petitioner would be risking harm to her reputation and her ability to continue practicing law in the Commonwealth and the licensees and affiliates would be risking administrative penalty.
The other option for Petitioner is to forgo the practice of law in her area of expertise, or with any law firm that represents any licensees or their affiliates.

Id. at ¶¶ 9, 12 (citations omitted).

The Board filed preliminary objections to the petition for review, pursuant to Pa.R.C.P. 1028(a)(4), alleging insufficiency of the pleading in various respects. The Board claims (1) petitioner lacks standing to challenge so-called “post-employment” restrictions of the Act,5

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Bluebook (online)
161 A.3d 228, 639 Pa. 521, 2017 WL 2291771, 2017 Pa. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yocum-v-commonwealth-pennsylvania-gaming-control-board-pa-2017.