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Sean Whaley

Panel Says 'Cooling Off' Law Did Not Apply to Employee

24 August 2005

CARSON CITY, Nevada -- A just-released Ethics Commission opinion concludes the state's one-year "cooling off" law did not apply to a Gaming Control Board agent when he sought to go to work for a company he had been reviewing for licensing.

Former Gaming Control Board Senior Agent Jeffrey Horky sought the Ethics Commission opinion earlier this year after being offered a job by Wynn Resorts Ltd.

Marc Rubinstein, general counsel and secretary to Wynn Resorts and Wynn Las Vegas, made the initial job offer after licensing was complete.

Horky was one of six agents, working under the direction of a senior agent, conducting background and financial investigations of 11 individuals related to the licensing of Wynn Resorts Ltd. and Wynn Las Vegas LLC, as well as five corporate investigations.

The commission found that because Horky did not have any responsibility for formulating policy relating to the gaming industry, he was not covered by the law.

Rubinstein said Tuesday an analysis suggested the law did not apply in Horky's case. If the law was found to apply, Horky had asked the commission to find he was entitled to relief from its strict application.

"We did this out of an abundance of caution because we didn't want anyone to question our motives in offering the job or Jeff's motives in taking it," Rubinstein said.

The Wynn investigations were completed in February. Horky was offered a job in March, a week after the Nevada Gaming Commission had OK'd the Wynn licensing.

Horky accepted a job with the company effective May 23, although that starting date was dependent on the Ethics Commission's review of the applicability of the state's one-year cooling off law.

The commission made an oral decision in the matter on May 4 that Horky was not covered by the law. The written opinion was published Aug. 18. Minutes of the meeting show the vote was 4-2.

Horky sought the opinion because of the state cooling off law, which potentially could have forced him to wait one year before going to work for Wynn. The law applies to those whose duties included, "the formulation of policy contained in the regulations governing the business or industry." It could also apply if he "possesses knowledge of the trade secrets of a direct business competitor."

In its findings, the Ethics Commission said that other than the personal financial investigation of Rubinstein, Horky had no responsibility for investigation of top executives of Wynn or any involvement in investigation of the corporate applications.

The commission opinion said: "Nothing in the record suggests that Mr. Horky compromised his public duties in order to gain favor in the form of employment with Wynn."

The commission did note that another section of law still applies to Horky. The provision prohibits Horky from representing or counseling the Wynn companies on any issue that was under consideration by the gaming agency during his service.