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CHAPTER 11
ETHICS STANDARDS AND FINANCIAL DISCLOSURE
Sec.
This chapter shall be known and may be cited as the Public Official
and Employee
Ethics Act.
(a) Declarations.--The Legislature
hereby declares that public office is a public trust and that any
effort to realize personal financial gain through public office other
than compensation provided by law is a violation of that trust. In
order to strengthen the aith and confidence of the people of this
Commonwealth in their government, the Legislature further declares
that the people have a right to be assured that the
financial interests of holders of or nominees or
candidates for public office do notconflict with the public trust.
Because public confidence in government can best be sustained by
assuring the people of the impartiality and honesty of public
officials, this chapter shall be liberally construed to promote
complete financial disclosure as specified in this chapter.
Furthermore, it is recognized that clear guidelines are needed in
order to guide public officials and employees in their actions. Thus,
the General Assembly by this chapter intends to define as clearly as
possible those areas which represent conflict with the public trust.
(b) Recognition.--It is
recognized that many public officials, including most local
officials and members of the General Assembly, are citizen-officials
who bring to their public office the knowledge and oncerns of
ordinary citizens and taxpayers. They should not be discouraged from
maintaining their contacts with their community through their
occupations and professions. Thus, in order to foster maximum
compliance with its terms, this chapter shall be administered in a
manner that emphasizes guidance to public officials and public
employees regarding the ethical standards established by this
chapter.
(c) Legislative intent.--It is
the intent of the General Assembly that this chapter be
administered by an independent commission
composed of members who are
cognizant of the responsibilities and burdens of
public officials and employees and
who have demonstrated an interest in promoting
public confidence in government.
The following words and phrases when used in this
chapter shall have, unless the context clearly indicates otherwise,
the meanings given to them in this section:
"Advice." Any directive of the
chief counsel of the State Ethics Commission issued under section
1107(11) (relating to powers and duties of commission) and
based exclusively on prior commission opinions, this chapter,
regulations promulgated pursuant to this chapter and court opinions
which interpret this chapter.
"Aggregate." The total of all
gifts received from a single source as provided in
section 1105(b)(6) (relating to statement of
financial interests).
"Authority of office or employment."
The actual power provided by law, the exercise of which is necessary
to the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business." Any corporation,
partnership, sole proprietorship, firm, enterprise, franchise,
association, organization, self-employed individual, holding company,
joint stock company, receivership, trust or any legal entity organized
for profit.
"Business with which he is associated."
Any business in which the person or a member of the person's immediate
family is a director, officer, owner, employee or has a financial
interest.
"Candidate." Any individual who
seeks nomination or election to public office by vote of the
electorate, other than a judge of elections, inspector of elections or
official of a political party, whether or not such individual is
nominated or elected. An individual shall be deemed to be seeking
nomination or election to such office if he has:
(1) received a contribution or made an
expenditure or given his consent for any other person or committee
to receive a contribution or make an expenditure for the purpose of
influencing his nomination or election to such office, whether or
not the individual has announced the specific office for which he
will seek nomination or election at the time the contribution is
received or the expenditure is made; or
(2) taken the action necessary under the laws of
this Commonwealth to qualify himself for nomination or election to
such office.
The term shall include individuals nominated or
elected as write-in candidates unless they resign such nomination or
elected office within 30 days of having been nominated or elected.
"Commission." The State Ethics
Commission.
"Confidential information."
Information not obtainable from reviewing a publicdocument or from
making inquiry to a publicly available source of information.
"Conflict" or "conflict of interest."
Use by a public official or public employee of the authority of his
office or employment or any confidential information received through
his holding public office or employment for the private pecuniary
benefit of himself, a member of his immediate family or a business
with which he or a member of his immediate family is associated. The
term does not include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or other
group which includes the public official or public employee, a member
of his immediate family or a business with which he or a member of his
immediate family is associated.
"Contract." An agreement or
arrangement for the acquisition, use or disposal by the Commonwealth
or a political subdivision of consulting or other services or of
supplies, materials, equipment, land or other personal or real
property. The term shall not mean an agreement or arrangement between
the State or political subdivision as one party and a public official
or public employee as the other party, concerning his
expense, reimbursement, salary, wage, retirement or other benefit,
tenure or other matters in consideration of his current public
employment with the Commonwealth or a political subdivision.
"De minimis economic impact." An
economic consequence which has an insignificant effect.
"Executive-level State employee."
The Governor, Lieutenant Governor, cabinet members, deputy
secretaries, the Governor's office staff, any State employee
with discretionary powers which may affect the outcome of a State
agency's decision in relation to a private corporation or business or
any employee who by virtue of his job function could influence the
outcome of such a decision.
"Financial interest." Any
financial interest in a legal entity engaged in business for profit
which comprises more than 5% of the equity of the business or more
than 5% of the assets of the economic interest in indebtedness.
"Findings report." An initial
report containing findings of fact as determined by the State Ethics
Commission's investigation but not containing any conclusions of law
or any determination of whether there has been a violation of law.
"Frivolous complaint." A complaint
filed in a grossly negligent manner without basis in law or fact.
"Gift." Anything which is received
without consideration of equal or greater value. The term shall not
include a political contribution otherwise reported as required by law
or a commercially reasonable loan made in the ordinary course of
business.
"Governmental body." Any
department, authority, commission, committee, council, board, bureau,
division, service, office, officer, administration, legislative body
or other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or any
agency performing a governmental function.
"Governmental body with which a public
official or public employee is or has been associated." The
governmental body within State government or a political
subdivision by which the public official or employee is or has been
employed or to which the public official or employee is or has been
appointed or elected and subdivisions and offices within that
governmental body.
"Honorarium." Payment made in
recognition of published works, appearances, speeches and
presentations and which is not intended as consideration for the
value of such services which are nonpublic occupational or
professional in nature. The term does not include tokens presented or
provided which are of de minimis economic impact.
"Immediate family." A parent,
spouse, child, brother or sister.
"Income." Any money or thing of
value received or to be received as a claim on future services or in
recognition of services rendered in the past, whether in the form of a
payment, fee, salary, expense, allowance, forbearance, forgiveness,
interest, dividend, royalty, rent, capital gain, reward, severance
payment, proceeds from the sale of a financial interest in a
corporation, professional corporation, partnership or other entity
resulting from termination or withdrawal therefrom upon assumption of
public office or employment or any other form of recompense or any
combination thereof. The term refers to gross income and includes
prize winnings and tax-exempt income. The term does not include gifts,
governmentally mandated payments or benefits, retirement, pension or
annuity payments funded totally by contributions of the public
official or employee, or miscellaneous, incidental income of minor
dependent children.
"Indirect interest in real estate."
Any business entity the assets of which are 80% or more in real
property.
"Ministerial action." An action
that a person performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise of
the person's own judgment as to the desirability of the action being
taken.
"Nominee." Any person whose name
has been submitted to a public official or governmental body vested
with the power to finally confirm or reject proposed appointments to
public office or employment.
"Nonministerial actions." An
action in which the person exercises his own judgment as to the
desirability of the action taken.
"Opinion." A directive of the
State Ethics Commission issued pursuant to section 1107(10) (relating
to powers and duties of commission) setting forth a public official's
or public employee's duties under this chapter.
"Order." A directive of the State
Ethics Commission issued pursuant to section 1107(13) (relating to
powers and duties of commission) at the conclusion of an investigation
which contains findings of fact, conclusions of law and penalties.
"Person." A business, governmental
body, individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Political contribution." Any
advance, conveyance, deposit, distribution, transfer of funds, loan,
payment, pledge, purchase of a ticket to a testimonial or similar
fund-raising affair, or subscription of money or anything of value,
except volunteer services, in connection with a political campaign,
and any contract, agreement, promise or other obligations, whether or
not legally enforceable, to make a political contribution.
"Political subdivision." Any
county, city, borough, incorporated town, township, school district,
vocational school, county institution district, and any authority,
entity or body organized by the aforementioned.
"Public employee." Any individual
employed by the Commonwealth or a political subdivision who is
responsible for taking or recommending official action of a
nonministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing
any person; or
(5) any other activity where the official action
has an economic impact
of greaterthan a de minimis nature on the
interests of any person.
The term shall not include individuals who are
employed by this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
"Public official." Any person
elected by the public or elected or appointed by a governmental body
or an appointed official in the executive, legislative or
judicial branch of this Commonwealth or any political subdivision
thereof, provided that it shall not include members of advisory boards
that have no authority to expend public funds other than reimbursement
for personal expense or to otherwise exercise the power of the State
or any political subdivision thereof.
"Represent." To act on behalf of
any other person in any activity which includes, but is not limited
to, the following: personal appearances, negotiations, lobbying
and submitting bid or contract proposals which are signed by or
contain the name of a former public official or public employee.
"Solicitor." A person elected or
appointed to the office of solicitor for the political subdivision.
"Source." Any person who is a
provider of an item reportable under section 1105 (relating to
statement of financial interests).
"State consultant." A person who,
as an independent contractor, performs professional, scientific,
technical or advisory service for an agency of this Commonwealth, and
who receives a fee, honorarium or similar compensation for such
services. A State consultant is not an executive-level employee.
(a) Conflict of interest.--No public official or
public employee shall engage in conduct that constitutes a conflict of
interest.
(b) Seeking improper influence.--No person shall
offer or give to a public official, public employee or nominee or
candidate for public office or a member of his immediate family or a
business with which he is associated, anything of monetary value,
including a gift, loan, political contribution, reward or promise of
future employment based on the offeror's or donor's understanding that
the vote, official action or judgment of the public official or public
employee or nominee or candidate for public office would be influenced
thereby.
(c) Accepting improper influence.--No public
official, public employee or nominee or candidate for public office
shall solicit or accept anything of monetary value, including a gift,
loan, political contribution, reward or promise of future employment
based on any understanding of that public official, public employee or
nominee that the vote, official action or judgment of the public
official or public employee or nominee or candidate for public office
would be influenced thereby.
(d) Honorarium.--No public official or public
employee shall accept an honorarium.
(e) Contingent and severance payments.--
(1) No person shall solicit or accept a severance payment or
anything of monetary value contingent upon the assumption or
acceptance of public office or employment.
(2) This subsection shall not prohibit:
(i) Payments received pursuant to an employment agreement in
existence prior to the time a person becomes a candidate or is
notified by a member of a transition team, a search committee or
a person with appointive power that he is under consideration
for public office or makes application for public employment.
(ii) Receipt of a salary, fees, severance payment or proceeds
resulting from the sale of a person's interest in a corporation,
professional corporation, partnership or other entity resulting
from termination or withdrawal therefrom upon the assumption or
acceptance of public office or employment.
(3) Payments made or received pursuant to paragraph (2)(i) and
(ii) shall not be based on the agreement, written or otherwise,
that the vote or official action of the prospective public
official or employee would be influenced thereby.
(f) Contract.--No public official or public
employee or his spouse or child or any business in which the person
or his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which the
public official or public employee is associated or any subcontract
valued at $500 or more with any person who has been awarded a
contract with the governmental body with which the public official
or public employee is associated, unless the contract has been
awarded through an open and public process, including prior public
notice and subsequent public disclosure of all proposals considered
and contracts awarded. In such a case, the public official or public
employee shall not have any supervisory or overall responsibility
for the implementation or administration of the contract. Any
contract or subcontract made in violation of this subsection shall
be voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
(g) Former official or employee.--No former
public official or public employee shall represent a person,
with promised or actual compensation, on any matter before the
governmental body with which he has been associated for one year
after he leaves that body.
(h) Misuse of statement of financial interest.--No
person shall use for any commercial purpose information copied
from statements of financial interests required by this chapter
or from lists compiled from such statements.
(i) Former executive-level employee.--No former
executive-level State employee may for a period of two years
from the time that he terminates employment with this
Commonwealth be employed by, receive compensation from, assist
or act in a representative capacity for a business or
corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this Commonwealth, provided that the
above prohibition shall be invoked only when the recruitment or
inducement is accomplished by a grant or loan of money or a
promise of a grant or loan of money from the Commonwealth to the
business or corporation recruited or induced to expand.
(j) Voting conflict.--Where voting conflicts
are not otherwise addressed by the Constitution of Pennsylvania
or by any law, rule, regulation, order or ordinance, the
following procedure shall be employed. Any public official or
public employee who in the discharge of his official duties
would be required to vote on a matter that would result in a
conflict of interest shall abstain from voting and, prior to the
vote being taken, publicly announce and disclose the nature of
his interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a matter
before it because the number of members of the body required to
abstain from voting under the provisions of this section makes
the majority or other legally required vote of approval
unattainable, then such members shall be permitted to vote if
disclosures are made as otherwise provided herein. In the case
of a three-member governing body of a political subdivision,
where one member has abstained from voting as a result of a
conflict of interest and the remaining two members of the
governing body have cast opposing votes, the member who has
abstained shall be permitted to vote to break the tie vote if
disclosure is made as otherwise provided herein.
(a) Public official or public employee.--Each public
official of the Commonwealth shall file a statement of financial
interests for the preceding calendar year with the commission no later
than May 1 of each year that he holds such a position and of the year
after he leaves such a position. Each public employee and public
official of the Commonwealth shall file a statement of financial
interests for the preceding calendar year with the department, agency,
body or bureau in which he is employed or to which he is appointed or
elected no later than May 1 of each year that he holds such a position
and of the year after he leaves such a position. Any other public
employee or public official shall file a statement of financial
interests with the governing authority of the political subdivision by
which he is employed or within which he is appointed or elected no
later than May 1 of each year that he holds such a position and of the
year after he leaves such a position. Persons who are full-time or
part-time solicitors for political subdivisions are required to file
under this section.
(b) Candidate.--
(1) Any candidate for a State-level public office shall file a
statement of financial interests for the preceding calendar year
with the commission on or before the last day for filing a
petition to appear on the ballot for election. A copy of the
statement of financial interests shall also be appended to such
petition.
(2) Any candidate for county-level or local office shall file a
statement of financial interests for the preceding calendar year
with the governing authority of the political subdivision in which
he is a candidate on or before the last day for filing a petition
to appear on the ballot for election. A copy of the statement of
financial interests shall also be appended to such petition.
(3) No petition to appear on the ballot for election shall be
accepted by the respective State or local election officials
unless the petition has appended thereto a statement of
financial interests as set forth in paragraphs (1) and (2).
Failure to file the statement in accordance with the provisions
of this chapter shall, in addition to any other penalties
provided, be a fatal defect to a petition to appear on the
ballot.
(c) Nominee.--Each State-level nominee for public
office shall file a statement of financial interests for the
preceding calendar year with the commission and with the official or
body that is vested with the power of confirmation at least ten days
before the official or body shall approve or reject the nomination.
Each nominee for a county-level or local office shall file a
statement of financial interests for the preceding calendar year
with the governing authority of the political subdivision in which
he or she is a nominee and, if different, with the official or body
that is vested with the power of confirmation at least ten days
before the official or body shall approve or reject the nomination.
(d) Failure to file required statement.--No public
official shall be allowed to take the oath of office or enter or
continue upon his duties, nor shall he receive compensation from
public funds, unless he has filed a statement of financial interests
as required by this chapter.
(e) Public inspection and copying.--All statements
of financial interests filed pursuant to the provisions of this
chapter shall be made available for public inspection and copying
during regular office hours, and copying facilities shall be made
available at a charge not to exceed actual cost.
(a) Form.--The statement of financial interests filed
pursuant to this chapter shall be on a form prescribed by the
commission. All information requested on the statement shall be
provided to the best of the knowledge, information and belief of the
person required to file and shall be signed under oath or equivalent
affirmation.
(b) Required information.--The statement shall
include the following information for the prior calendar year with
regard to the person required to file the statement:
(1) Name, address and public position.
(2) Occupation or profession.
(3) Any direct or indirect interest in any real estate which was
sold or leased to the Commonwealth, any of its agencies or
political subdivisions or purchased or leased from the
Commonwealth, any of its agencies or political subdivisions or
which was the subject of any condemnation proceedings by the
Commonwealth, any of its agencies or political subdivisions.
(4) The name and address of each creditor to whom is owed in
excess of $6,500 and the interest rate thereon. However, loans or
credit extended between members of the immediate family and
mortgages securing real property which is the principal or
secondary residence of the person filing shall not be included.
(5) The name and address of any direct or indirect source of
income totaling in the aggregate $1,300 or more. However, this
provision shall not be construed to require the divulgence of
confidential information protected by statute or existing
professional codes of ethics or common law privileges.
(6) The name and address of the source and the amount of any
gift or gifts valued in the aggregate at $250 or more and the
circumstances of each gift. This paragraph shall not apply to a
gift or gifts received from a spouse, parent, parent by
marriage, sibling, child, grandchild, other family member or
friend when the circumstances make it clear that the motivation
for the action was a personal or family relationship. However,
for the purposes of this paragraph, the term "friend" shall not
include a registered lobbyist or an employee of a registered
lobbyist.
(7) The name and address of the source and the amount of any
payment for or reimbursement of actual expenses for
transportation and lodging or hospitality received in connection
with public office or employment where such actual expenses for
transportation and lodging or hospitality exceed $650 in the
course of a single occurrence. This paragraph shall not apply to
expenses reimbursed by a governmental body or to expenses
reimbursed by an organization or association of public officials
or employees of political subdivisions which the public official
or employee serves in an official capacity.
(8) Any office, directorship or employment of any nature
whatsoever in any business entity.
(9) Any financial interest in any legal entity engaged in
business for profit.
(10) The identity of any financial interest in a business with
which the reporting person is or has been associated in the
preceding calendar year which has been transferred to a member
of the reporting person's immediate family.
(c) Reporting amounts.--Except where an amount is
required to be reported pursuant to subsection (b)(6) and (7), the
statement of financial interests need not include specific amounts
for the items required to be listed.
(d) Cost-of-living adjustments.--On a biennial
basis the commission shall review the dollar amounts set forth in
this section and may increase these amounts to such rates as are
deemed reasonable for assuring appropriate disclosure. The
commission shall publish any such adjusted threshold amounts in the
Pennsylvania Bulletin.
(a) Continuation of commission.--The State Ethics
Commission established under the act of October 4, 1978 (P.L. 883, No.
170), referred to as the Public Official and Employee Ethics Law, is
continued and shall be composed of seven members. The President pro
tempore of the Senate, the Minority Leader of the Senate, the Speaker
of the House and the Minority Leader of the House shall each appoint
one member. Three members shall be appointed by the Governor without
confirmation.
No more than two of the members appointed by the Governor shall be of
the same political party. No appointee shall have served as an officer
in a political party for one year prior to his appointment.
(b) Term of service.--Members of the commission shall
serve for terms of three years, except that members shall continue to
serve until their successors are appointed and qualified.
(c) Maximum number of terms.--No member shall be
appointed to more than two full three-year terms on the commission.
(d) Prohibited activities.--No individual while a
member or employee of the commission shall:
(1) hold or campaign for any other public office;
(2) hold office in any political party or political committee;
(3) actively participate in or contribute to any political
campaign;
(4) directly or indirectly attempt to influence any decision by a
governmental body, other than a court of law or as a
representative of the commission on a matter within the
jurisdiction of the commission; or
(5) be employed by the Commonwealth or a political subdivision in
any other capacity, whether or not for compensation.
(e) Vacancy.--A majority of the commission by
resolution shall declare vacant the position on the commission of any
member who takes part in activities prohibited by subsection (d). An
individual appointed to fill a vacancy occurring other than by the
expiration of a term of office shall be appointed for the unexpired
term of the member he succeeds and is eligible for appointment to two
full three-year terms thereafter. Any vacancy occurring on the
commission shall be filled within 30 days in the manner in which that
position was originally filled.
(f) Election of chairman and vice chairman.--The
commission shall elect a chairman and a vice chairman. The vice
chairman shall act as chairman in the absence of the chairman or in
the event of a vacancy in that position.
(g) Quorum.--Four members of the commission shall
constitute a quorum and except as provided in section 1108(g)
(relating to investigations by commission), the votes of a majority
of the members present are required for any action or recommendation
of the commission. The chairman or any four members of the
commission may call a meeting provided that advance written notice
is mailed to
each member and to any person who requests notice of such meetings.
(h) Compensation.--Members of the commission shall
be compensated at a rate of $250 per day and shall receive
reimbursement for their actual and necessary expenses while
performing the business of the commission.
(i) Staff.--The commission shall employ an
executive director, a chief counsel and such other staff as are
necessary to carry out its duties pursuant to this chapter. The
executive director shall be responsible for the administrative
operations of the commission and shall perform such other duties as
may be delegated or assigned to him by the commission, except that
the commission shall not delegate the making of regulations to the
executive director. The chief counsel shall be the chief legal
officer of the commission. The commission may obtain the services of
experts and consultants as necessary to carry out its duties
pursuant to this chapter. The State Treasurer and the Attorney
General shall make available to the commission such personnel,
facilities and other assistance as the commission may request.
(j) Regulations.--The commission shall develop
regulations that provide for a code of conduct to govern the
activities and ethical standards of its members, which code shall
subject the members of the commission to no less than is required
for public officials or public employees under this chapter.
§1107. Powers and duties of
commission
In addition to other powers and duties prescribed by law, the
commission shall:
(1) Prescribe and publish rules and regulations to carry out the
provisions of this chapter.
(2) Prescribe forms for statements and reports required to be
filed by this chapter and furnish such forms to persons required
to file such statements and reports.
(3) Prepare and publish guidelines setting forth recommended uniform
methods of accounting and reporting for use by persons required to
file statements and reports by this chapter.
(4) Accept and file any information voluntarily supplied that
exceeds the requirements of this chapter.
(5) Inspect statements of financial interests which have been filed
in order to ascertain whether any reporting person has failed to
file such a statement or has filed a deficient statement. If, upon
inspection, it is determined that a reporting person has failed to
file a statement of financial interests or that any statement which
has been filed fails to conform with the requirements of section
1105 (relating to statement of financial interests), then the
commission shall in writing notify the person. Such notice shall
state in detail the deficiency and the penalties for failure to file
or for filing a deficient statement of financial interests.
(6) Provide that statements and reports filed with the commission be
made available for public inspection and copying during regular
office hours and provide that copying facilities be made available
at a charge not to exceed actual cost and advise other State and
local agencies of the provisions of this paragraph.
(7) Compile and maintain an index of all reports and statements
filed with the commission to facilitate public access to such
reports and statements and instruct other State and local agencies
which receive and file financial interest statements in the
maintenance of systems which facilitate public access to such
statements.
(8) Prepare and publish annual summaries of statements and reports
filed with the commission.
(9) Preserve statements and reports filed with the commission for a
period of five years from date of receipt and advise other State and
local agencies which receive and store financial interest statements
to preserve such statements for a period of five years from date of
receipt.
(10) Issue to any person upon such person's request or to the
appointing authority or employer of that person upon the request of
such appointing authority or employer an opinion with respect to
such person's duties under this chapter. The commission shall,
within 14 days, either issue the opinion or advise the person who
made the request whether an opinion will be issued. No person who
acts in good faith on an opinion issued to him by the commission
shall be subject to criminal or civil penalties for so acting,
provided that the material facts are as stated in the opinion
request. The commission's opinions shall be public records and may
from time to time be published. The person requesting the opinion
may, however, require that the opinion shall contain such deletions
and changes as shall be necessary to
protect the identity of the persons involved.
(11) Provide written advice to any person or the appointing authority
or employer of such person, upon their request with respect to such
person's duties under this chapter. Such advice shall be provided
within 21 working days of the request, provided that the time may be
extended for good cause. It shall be a complete defense in any
enforcement proceeding initiated by the commission, and evidence of
good faith conduct in any other civil or criminal proceeding, if the
requester, at least 21 working days prior to the alleged violation,
requested written advice from the commission in good faith, disclosed
truthfully all the material facts and committed the acts complained of
either in reliance on the advice or because of the failure of the
commission to provide advice within 21 days of the request or such
later extended time. The person requesting the advice may, however,
require that the advice shall contain such deletions and changes as
shall be necessary to protect the identity of the persons involved.
(12) Initiate an inquiry, pursuant to section 1108(a) (relating to
investigations by commission), where a complaint has not been filed
but where there is a reasonable belief that a conflict may exist.
(13) Issue findings, reports and orders relating to investigations
initiated pursuant to section 1108, which set forth the alleged
violation, findings of fact and conclusions of law. An order may
include recommendations to law enforcement officials. Any order
resulting from a finding that a public official or public employee has
obtained a financial gain in violation of this chapter may require the
restitution plus interest of that gain to the appropriate governmental
body. The commission or the Office of Attorney General shall have
standing to apply to the Commonwealth Court to seek enforcement of an
order requiring such restitution. This restitution requirement shall
be in addition to any other penalties provided for in this chapter.
(14) Hold hearings, take testimony, issue subpoenas and compel the
attendance of witnesses.
(15) Make recommendations to law enforcement officials either for
criminal prosecution or dismissal of charges arising out of violations
of this chapter.
(16) Prepare and publish special reports, educational materials, and
technical studies to further the purposes of this chapter.
(17) Prepare and publish, prior to June 1 of each year, an annual
report summarizing the activities of the commission.
(18) Transmit, free of charge, copies of each order, advice and
opinion which has become a matter of public record quarterly to the
law library of each county, one public library in each county, the
State Library, the State Senate Library, each authority appointing
commission members under this chapter, the Pennsylvania Association
of County Commissioners, the Pennsylvania Association of Boroughs,
the Pennsylvania State Association of Township Supervisors, the
Pennsylvania State Association of Township Commissioners, the
Pennsylvania School Boards Association and the Pennsylvania League
of Cities.
(19) Hold at least two public hearings each year, of which at least
one shall be held in Harrisburg and at least one shall be held in a
location other than Harrisburg, to seek input from persons and
organizations who represent any individual subject to the provisions
of this chapter and from other interested parties.
(a) Preliminary inquiry.--Upon a complaint signed
under penalty of perjury by any person or upon its own motion, the
commission, through its executive director, shall conduct a
preliminary inquiry into any alleged violation of this chapter. The
commission shall keep information, records and proceedings relating to
a preliminary inquiry confidential. The commission shall, however,
have the authority to refer the case to law enforcement officials
during a preliminary inquiry or anytime thereafter without providing
notice to the subject of the inquiry. The commission shall complete
its preliminary inquiry within 60 days of its initiation.
(b) Termination of preliminary inquiry.--If a
preliminary inquiry fails to establish reason to believe that this
chapter has been violated, the commission shall terminate the inquiry
and so notify the complainant and the person who had been the subject
of the inquiry. If the commission determines that a complaint is
frivolous, it shall so state.
(c) Initiation of investigation.--If a preliminary
inquiry establishes reason to believe that this chapter has been
violated, the commission may, through its executive director, initiate
an investigation to determine if there has been a violation. The
commission shall keep information, records and proceedings relating to
an investigation confidential until a final determination is made,
except as otherwise provided in subsection (g). No investigation may
be commenced until the person who is the subject of the investigation
has been notified and provided a general statement of the alleged
violation or violations of this chapter and other applicable statutes
with respect to such investigation. Service of notice is complete upon
mailing which shall be by certified or registered mail. The commission
shall notify the complainant within 72 hours of the commencement of an
investigation, and, thereafter, the commission shall advise the
complainant and the person who is the subject of the investigation of
the status of the investigation at least every 90 days until the
investigation is terminated. The commission shall, within 180 days of
the initiation of an investigation, either terminate the investigation
pursuant to subsection (d) or issue a findings report pursuant to
subsection (e). Upon a showing by the executive director of the need
for extension of this period, the commission may extend an
investigation for up to two 90-day periods, provided that each 90-day
extension shall be approved by a majority vote of members present. In
no event shall a findings report be issued later than 360 days after
initiation of an investigation.
(d) Termination of investigation.--If an
investigation conducted under this chapter indicates that no
violation has been committed, the commission shall immediately
terminate the investigation and send written notice of such
determination to the complainant and the person who was the
subject of the investigation.
(e) Findings report.--The commission, upon the
completion of an investigation, shall issue a findings report to
the subject of the investigation setting forth the pertinent
findings of fact. The subject shall have the right to respond to
said findings and to request an evidentiary hearing on said
matter. The commission shall grant any request for a hearing. Said
hearing shall be held in Harrisburg or, at the request of the
subject, in either Philadelphia or Pittsburgh. Any response to the
findings report must either admit or deny by corresponding number
and letter the pertinent facts set forth. The subject of the
investigation shall have access to any evidence intended to be
used by the commission at the hearing and any exculpatory evidence
developed by the commission in the course of its investigation.
Matters
not specifically denied in the response shall be deemed admitted.
The response must be filed within 30 days of the issuance of the
findings report unless the time period is extended by the
commission for good cause shown. Hearings conducted upon request
shall be instituted within 45 days after the filing of the
response.
(f) Final order.--Within 30 days of the receipt
by the commission of the hearing record, or, if no hearing is to
be held, within 30 days of the receipt by the commission of the
response to the findings report, the commission shall issue an
order which shall be final. Upon receipt of a final order, the
subject shall have the right to file a petition for
reconsideration in accordance with the regulations of the
commission.
(g) Procedure for hearing.--Hearings conducted
pursuant to this section shall be closed to the public unless the
subject requests an open hearing. Any person who appears before the
commission shall have all of the due process rights, privileges and
responsibilities of a party or witness appearing before an
administrative agency of this Commonwealth. All witnesses summoned for
such hearings shall receive reimbursement for reasonable expenses in
accordance with 42 Pa.C.S. §
5903 (relating to compensation and expenses of witnesses). At
the conclusion of a hearing concerning an alleged violation and in a
timely manner, the commission shall deliberate on the evidence and
determine whether there has been a violation of this chapter. At least
four members of the commission present at a meeting must find a
violation by clear and convincing proof. The names of the members
finding a violation and the names of those dissenting and abstaining
shall be listed in the order. The determination of the commission, in
the form of a final order and findings of fact, shall be a matter of
public record.
(h) Availability of final orders, files and records.--Orders
which become final in accordance with the provisions of this section
shall be available as public documents, but the files and records of
the commission relating to the case shall remain confidential.
(i) Appeal.--Any person aggrieved by an opinion or
order which becomes final in accordance with the provisions of this
chapter who has direct interest in such opinion or order shall have
the right to appeal therefrom in accordance with law and general
rules.
(j) Retaliation prohibited.--No public official or
public employee shall discharge any official or employee or change his
official rank, grade or compensation or deny him a promotion or
threaten to do so for filing a complaint with or providing information
to the commission or testifying in any commission proceeding. No
member of the commission and no employee of the commission shall
discharge any employee of the commission or change his official rank,
grade or compensation or threaten to do so for providing any
information about the internal operations of the commission, not
required by law to be kept secret, to any legislator or legislative
staff member or testifying in any legislative proceeding.
(k) Confidentiality.--As a general rule, no person
shall disclose or acknowledge, to any other person, any information
relating to a complaint, preliminary inquiry, investigation, hearing
or petition for reconsideration which is before the commission.
However, a person may disclose or acknowledge to another person
matters held confidential in accordance with this subsection when the
matters pertain to any of the following:
(1) final orders of the commission as provided in subsection (h);
(2) hearings conducted in public pursuant to subsection (g);
(3) for the purpose of seeking advice of legal counsel;
(4) filing an appeal from a commission order;
(5) communicating with the commission or its staff, in the course
of a preliminary
inquiry, investigation, hearing or petition for reconsideration by
the
commission;
(6) consulting with a law enforcement official or agency for the
purpose of
initiating, participating in or responding to an investigation or
prosecution by
the law enforcement official or agency;
(7) testifying under oath before a governmental body or a similar
body of the
United States of America;
(8) any information, records or proceedings relating to a
complaint, preliminary
inquiry, investigation, hearing or petition for reconsideration
which the
person is the subject of; or
(9) such other exceptions as the commission by regulation may
direct.
(l) Frivolous complaints and wrongful disclosure.--If
a public official or public employee has reason to believe the
complaint is frivolous as defined by this chapter, or without
probable cause and made primarily for a purpose other than that of
reporting a violation of this chapter, or a person publicly
disclosed or caused to be disclosed that a complaint against the
public official or public employee has been filed with the
commission, the public official or public employee shall notify the
commission and the commission, through its executive director, shall
conduct an investigation.
(m) Limitation of time.--The commission may conduct
an investigation within five years after the alleged occurrence of
any violation of this chapter.
(a) Restricted activities violation.--Any person
who violates the provisions of section 1103(a), (b) and (c)
(relating to restricted activities) commits a felony and shall, upon
conviction, be sentenced to pay a fine of not more than $10,000 or
to imprisonment for not more than five years, or both.
(b) Financial interests statement violation.--Any
person who violates the provisions of section 1103(d) through (j),
1104 (relating to statement of financial interests required to be
filed) or 1105(a) (relating to statement of financial interests)
commits a misdemeanor and shall, upon conviction, be sentenced to
pay a fine of not more than $1,000 or to imprisonment for not more
than one year, or both.
(c) Treble damages.--Any person who obtains
financial gain from violating any provision of this chapter, in
addition to any other penalty provided by law, shall pay a sum of
money equal to three times the amount of the financial gain
resulting from such violation into the State Treasury or the
treasury of the political subdivision. Treble damages shall not be
assessed against a person who acted in good faith reliance on the
advice of legal counsel.
(d) Impeachment and disciplinary action.--The
penalties prescribed in this chapter do not limit the power of
either house of the Legislature to discipline its own members or
impeach a public official and do not limit the power of agencies
or commissions to discipline officials or employees.
(e) Other violations of chapter.--Any person who
violates the confidentiality of a commission proceeding pursuant
to section 1108 (relating to investigations by commission) commits
a misdemeanor and shall, upon conviction, be sentenced to pay a
fine of not more than $1,000 or to imprisonment for not more than
one year, or both. Any person who engages in retaliatory activity
proscribed by section 1108(j) commits a misdemeanor and, in
addition to any other penalty provided by
law, shall, upon conviction, be sentenced to pay a fine of not
more than $1,000 or to imprisonment for not more than one year, or
both. Any person who willfully affirms or swears falsely in regard
to any material matter before a commission proceeding pursuant to
section 1108 commits a felony and shall, upon conviction, be
sentenced to pay a fine of not more than $5,000 or to imprisonment
for not more
than five years, or both.
(f) Civil penalty.--In addition to any other
civil remedy or criminal penalty provided for in this chapter, the
commission may, after notice has been served in accordance with
section 1107(5) (relating to powers and duties of commission) and
upon a majority vote of its members, levy a civil penalty upon any
person subject to this chapter who fails to file a statement of
financial interests in a timely manner or who files a deficient
statement of financial interests, at a rate of not more than $25
for each day such statement remains delinquent or deficient. The
maximum penalty payable under this paragraph is $250.
(g) Reliance on solicitor's opinion.--A public
official of a political subdivision who acts in good faith
reliance on a written, nonconfidential opinion of the solicitor of
the political subdivision or upon an opinion of the solicitor of
the political subdivision, publicly stated at an open meeting of
the political subdivision and recorded in the official minutes of
the meeting, shall not be subject to the penalties provided for in
subsections (a) and (b) nor for the treble damages provided for in
subsection (c).
However, this subsection shall not apply in situations where the
solicitor's opinion has been rendered under duress or where the
parties seeking and rendering the solicitor's opinion have
colluded to purposefully commit a violation of this chapter.
(a) Liability.--A person who signs a complaint
alleging a violation of this chapter against another is subject to
liability for wrongful use of this chapter if:
(1) the complaint was frivolous, as defined by this chapter, or
without probable cause and made primarily for a purpose other than
that of reporting a violation of this chapter; or
(2) he publicly disclosed or caused to be disclosed that a
complaint against a person had been filed with the commission.
(b) Probable cause.--A person who signs a complaint
alleging a violation of this chapter has probable cause for doing so
if he reasonably believes in the existence of the facts upon which the
claim is based and either:
(1) reasonably believes that under those facts the complaint may
be valid under this chapter; or
(2) believes to this effect in reliance upon the advice of
counsel, sought in good faith and given after full disclosure of
all relevant facts within his knowledge and information.
(c) Commission procedures.--When the commission
determines that a complainant has violated the provisions set forth
in subsection (a), the commission, upon receiving a written request
from the subject of the complaint, shall provide the name and
address of the complainant to said subject. If the commission
determines that a complainant has not violated the provisions of
subsection (a), the commission shall notify the subject accordingly.
The subject shall have the right to appeal the commission's
determination, and the commission shall schedule an appeal hearing.
The subject shall show cause why the complainant violated the
provisions of this section. If the commission grants the appeal, the
commission shall immediately release the complainant's name and
address to the subject. If the commission denies the appeal, it
shall present evidence why the complainant's name and
address shall not be released.
(d) Damages.--When the essential elements of an
action brought pursuant to this section have been established, the
plaintiff is entitled to recover for the following:
(1) The harm to his reputation by a defamatory matter alleged as
the basis of the proceeding.
(2) The expenses, including any reasonable attorney fees, that he
has reasonably incurred in proceedings before the commission.
(3) Any specific pecuniary loss that has resulted from the
proceedings.
(4) Any emotional distress that has been caused by the
proceedings.
(5) Any punitive damages according to law in appropriate cases.
Any governmental body may adopt requirements to supplement this
chapter, provided that no such requirements shall in any way be less
restrictive than the chapter.
Except as otherwise provided in Chapter 13(relating to lobby
regulation and disclosure), if the provisions of this chapter
conflict with any other statute, ordinance, regulation or rule, the
provisions of this chapter shall control.
If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, the validity of the remainder
of this chapter and the application of such provisions to other
persons and circumstances shall not be affected thereby.
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