PRINTER'S NO. 293
No. 286 Session of 1989
INTRODUCED BY BELL, JANUARY 24, 1989
REFERRED TO RULES AND EXECUTIVE NOMINATIONS, JANUARY 24, 1989
AN ACT
1 Reenacting and amending the act of October 4, 1978 (P.L.883,
2 No.170), entitled "An act relating to conflicts of interest
3 involving certain public officials serving in State or State
4 agencies and local political subdivision positions and
5 prohibiting certain public employees from engaging in certain
6 conflict of interest activities requiring certain disclosures
7 and providing penalties," adding definitions; further
8 providing for the membership, powers and duties of the State
9 Ethics Commission and for persons who must file statements of
10 financial interests; reestablishing the State Ethics
11 Commission; and making an appropriation.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. The title and sections 1, 2, 3, 4, 5, 6, 7, 8, 9
15 and 10 of the act of October 4, 1978 (P.L.883, No.170), referred
16 to as the Public Official and Employee Ethics Law, are reenacted
17 and amended to read:
18 AN ACT
19 Relating to conflicts of interest involving certain public
20 officials serving in State or State agencies and local
21 political subdivision positions and prohibiting certain
22 public employees from engaging in certain conflict of
1 interest activities requiring certain disclosures and
2 providing penalties.
3 Section 1. Purpose.
4 (a) The Legislature hereby declares that public office is a
5 public trust and that any effort to realize personal financial
6 gain through public office other than compensation provided by
7 law is a violation of that trust. In order to strengthen the
8 faith and confidence of the people of the State in their
9 government, the Legislature further declares that the people
10 have a right to be assured that the financial interests of
11 holders of or nominees or candidates for public office do not
12 present [neither] either a conflict [nor] or the appearance of a
13 conflict with the public trust. Because public confidence in
14 government can best be sustained by assuring the people of the
15 impartiality and honesty of public officials, this act shall be
16 liberally construed to promote complete disclosure.
17 (b) It is the intent of the General Assembly that this act
18 be administered by an independent commission composed of members
19 who are cognizant of the responsibilities of public officials
20 and employees and who have demonstrated an interest in promoting
21 public confidence in government.
22 Section 2. Definitions.
23 The following words and phrases when used in this act shall
24 have, unless the context clearly indicates otherwise, the
25 meanings given to them in this section:
26 "Advice." Any directive of the general counsel of the
27 commission issued under paragraph (11) of section 7 and based
28 exclusively on prior commission opinions, this act, regulations
29 promulgated pursuant to this act, and court opinions which
30 interpret this act.
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1 "Authority of office or employment." The actual power
2 provided by law, the exercise of which is necessary to the
3 performance of duties and responsibilities unique to a
4 particular public office or position of public employment.
5 "Business." Any corporation, partnership, sole
6 proprietorship, firm, enterprise, franchise, association,
7 organization, self-employed individual, holding company, joint
8 stock company, receivership, trust or any legal entity organized
9 for profit.
10 "Business with which he is associated." Any business in
11 which the person or a member of the person's immediate family is
12 a director, officer, owner, employee or [holder of stock] has a
13 financial interest.
14 "Candidate." Any individual who seeks nomination or election
15 to public office by vote of the electorate, other than a judge
16 or inspector of elections, whether or not such individual is
17 nominated or elected. An individual shall be deemed to be
18 seeking nomination or election to such office if he has:
19 (1) received a contribution or made an expenditure or
20 given his consent for any other person or committee to
21 receive a contribution or make an expenditure for the purpose
22 of influencing his nomination or election to such office,
23 whether or not the individual has announced the specific
24 office for which he will seek nomination or election at the
25 time the contribution is received or the expenditure is made;
26 or
27 (2) taken the action necessary under the laws of this
28 Commonwealth to qualify himself for nomination or election to
29 such office.
30 The term shall include individuals nominated or elected as
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1 write-in candidates.
2 "Commission." The State Ethics Commission.
3 ["Compensation." Anything of economic value, however
4 designated, which is paid, loaned, granted, given, donated or
5 transferred, or to be paid, loaned, granted, given, donated or
6 transferred for or in consideration of personal services to any
7 person, official or to the State.]
8 "Conflict" or "conflict of interest." Use by a public
9 official or public employee of the authority of his office or
10 employment or any confidential information received through his
11 holding public office or employment for the private pecuniary
12 benefit or detriment of himself, a member of his immediate
13 family or a business with which he or a member of his immediate
14 family is associated. "Conflict" or "conflict of interest" does
15 not include an action having a de minimis economic impact or
16 which affects to the same degree a class consisting of the
17 general public or a subclass consisting of an industry,
18 occupation or other group which includes the public official or
19 public employee, a member of his immediate family or a business
20 with which he or a member of his immediate family is associated.
21 "Contract." An agreement or arrangement for the acquisition,
22 use or disposal by a State or political subdivision of
23 consulting or other services or of supplies, materials,
24 equipment, land or other personal or real property. "Contract"
25 shall not mean an agreement or arrangement between the State or
26 political subdivision as one party and a public official or
27 public employee as the other party, concerning his expense,
28 reimbursement, salary, wage, retirement or other benefit, tenure
29 or other matters in consideration of his current public
30 employment with a State or political subdivision.
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1 "De minimis economic impact." An economic consequence which
2 has an insignificant effect upon the public interest.
3 "Executive-level State employee." The Governor, Lieutenant
4 Governor, cabinet members, deputy secretaries, the Governor's
5 office staff, any State employee with discretionary powers which
6 may affect the outcome of a State agency's decision in relation
7 to a private corporation or business or any employee who by
8 virtue of his job function could influence the outcome of such a
9 decision.
10 "Financial interest." Any financial interest in a legal
11 entity engaged in business for profit which comprises more than
12 5% of the equity of the business or more than 5% of the assets
13 of the economic interest in indebtedness.
14 "Findings report." An initial report containing findings of
15 fact as determined by the commission's investigation but not
16 containing any conclusions of law or any determination of
17 whether there has been a violation of law.
18 "Frivolous complaint." A complaint filed in a grossly
19 negligent manner without basis in law or fact.
20 "Gift." [A payment, subscription, advance, forbearance,
21 rendering or deposit of money, services or anything of value,
22 unless consideration of equal or greater value is received]
23 Anything which is received without consideration of equal or
24 greater value. "Gift" shall not include a political contribution
25 otherwise reported as required by law[,] or a commercially
26 reasonable loan made in the ordinary course of business[, or a
27 gift received from a member of the person's immediate family or
28 from a relative within the third degree of consanguinity of the
29 person or of the person's spouse or from the spouse of any such
30 relative].
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1 "Governmental body." Any department, authority, commission,
2 committee, council, board, bureau, division, service, office,
3 officer, administration, legislative body, or other
4 establishment in the Executive, Legislative or Judicial Branch
5 of the State or a political subdivision thereof.
6 "Governmental body with which a public official or public
7 employee is or has been associated." The entity within State
8 government or a political subdivision by which the public
9 official or employee is or has been employed or to which the
10 public official or employee is or has been appointed or elected,
11 and not only the particular subdivision or office within that
12 entity to which the official or employee is or has been
13 assigned.
14 "Honorarium." Payment made in recognition of published
15 works, appearances, speeches and presentations and which is not
16 intended as consideration for the value of such services.
17 "Immediate family." [A spouse residing in the person's
18 household and minor dependent children] A parent, spouse, child,
19 brother, sister or like relative-in-law.
20 "Income." Any money or thing of value received, or to be
21 received as a claim on future services or in recognition of
22 services rendered in the past, whether in the form of a payment,
23 fee, salary, expense, allowance, forbearance, forgiveness,
24 interest, dividend, royalty, rent, capital gain, reward,
25 severance payment, proceeds from the sale of a financial
26 interest in a corporation, professional corporation, partnership
27 or other entity resulting from termination or withdrawal
28 therefrom upon assumption of public office or employment or any
29 other form of recompense or any combination thereof. "Income"
30 refers to gross income and includes prize winnings and tax-
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1 exempt income. The term does not include honoraria, gifts,
2 retirement, pension or annuity payments funded totally by
3 contributions of the public official or employee, or
4 miscellaneous, incidental income of minor dependent children.
5 "Indirect interest in real estate." Any business entity the
6 assets of which are 80% or more in real property.
7 "Ministerial action." An action that a person performs in a
8 prescribed manner in obedience to the mandate of legal
9 authority, without regard to, or the exercise of, the person's
10 own judgment as to the desirability of the action being taken.
11 "Nominee." Any person whose name has been submitted to a
12 public official or governmental body vested with the power to
13 finally confirm or reject proposed appointments to public office
14 or employment.
15 "Nonministerial actions." An action in which the person
16 exercises his own judgment as to the desirability of the action
17 taken.
18 "Opinion." A directive of the commission issued pursuant to
19 paragraph (10) of section 7 setting forth a public official's or
20 public employee's duties under this act.
21 "Order." A directive of the commission issued pursuant to
22 paragraph (13) of section 7 at the conclusion of an
23 investigation which contains findings of fact, conclusions of
24 law and penalties.
25 "Person." A business, governmental body, individual,
26 corporation, union, association, firm, partnership, committee,
27 club or other organization or group of persons.
28 "Political contribution." Any advance, conveyance, deposit,
29 distribution, transfer of funds, loan, payment, pledge, purchase
30 of a ticket to a testimonial or similar fund-raising affair, or
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1 subscription of money or anything of value, except volunteer
2 services, in connection with a political campaign, and any
3 contract, agreement, promise, or other obligations, whether or
4 not legally enforceable, to make a political contribution.
5 "Political subdivision." Any county, city, borough,
6 incorporated town, township, school district, vocational school,
7 county institution district, and any authority, entity or body
8 organized by the aforementioned.
9 "Public employee." Any individual employed by the
10 Commonwealth or a political subdivision who is responsible for
11 taking or recommending official action of a nonministerial
12 nature with regard to:
13 (1) contracting or procurement;
14 (2) administering or monitoring grants or subsidies;
15 (3) planning or zoning;
16 (4) inspecting, licensing, regulating or auditing any
17 person; or
18 (5) any other activity where the official action has an
19 economic impact of greater than a de minimis nature on the
20 interests of any person.
21 "Public employee" shall not include individuals who are employed
22 by the State or any political subdivision thereof in teaching as
23 distinguished from administrative duties.
24 "Public official." Any elected or appointed official in the
25 Executive, Legislative or Judicial Branch of the State or any
26 political subdivision thereof, provided that it shall not
27 include members of advisory boards that have no authority to
28 expend public funds other than reimbursement for personal
29 expense, or to otherwise exercise the power of the State or any
30 political subdivision thereof. ["Public official" shall not
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1 include any appointed official who receives no compensation
2 other than reimbursement for actual expenses.]
3 "Represent." To act on behalf of any other person in any
4 activity which includes, but is not limited to, the following:
5 personal appearances, negotiations, lobbying and submitting bid
6 or contract proposals which are signed by or contain the name of
7 a former public official or public employee.
8 "State consultant." A person who, as an independent
9 contractor, performs professional, scientific, technical or
10 advisory service for a State agency, and who receives a fee,
11 honorarium or similar compensation for such services. A "State
12 consultant" is not an executive-level employee.
13 Section 3. Restricted activities.
14 (a) [No public official or public employee shall use his
15 public office or any confidential information received through
16 his holding public office to obtain financial gain other than
17 compensation provided by law for himself, a member of his
18 immediate family, or a business with which he is associated] No
19 public official or public employee shall engage in conduct that
20 constitutes a conflict of interest or the appearance of a
21 conflict of interest.
22 (b) No person shall offer or give to a public official, [or]
23 public employee or nominee or candidate for public office or a
24 member of his immediate family or a business with which he is
25 associated, and no public official, [or] public employee or
26 nominee or candidate for public office shall solicit or accept,
27 anything of monetary value, including a gift, loan, political
28 contribution, reward, or promise of future employment based on
29 any understanding that the vote, official action, or judgment of
30 the public official or public employee or nominee or candidate
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1 for public office would be influenced thereby.
2 (c) (1) No person shall solicit or accept a severance
3 payment or anything of monetary value contingent upon the
4 assumption or acceptance of public office or employment.
5 (2) This subsection shall not prohibit:
6 (i) Payments received pursuant to an employment
7 agreement in existence prior to the time a person becomes
8 a candidate or is under consideration for public office
9 or makes application for public employment.
10 (ii) Receipt of a salary, fees, severance payment or
11 proceeds in consideration of equal or greater value and
12 resulting from the sale of a person's interest in a
13 corporation, professional corporation, partnership or
14 other entity resulting from termination or withdrawal
15 therefrom upon the assumption or acceptance of public
16 office or employment.
17 (3) This subsection shall not be applied retroactively.
18 [(c)] (d) No public official or public employee or [a member
19 of his immediate family or any business in which the person or a
20 member of the person's immediate family is a director, officer,
21 owner or holder of stock exceeding 5% of the equity at fair
22 market value of the business] his spouse or child or any
23 business in which the person or his spouse or child is
24 associated shall enter into any contract or subcontract valued
25 at $500 or more with a governmental body unless the contract or
26 subcontract has been awarded through an open and public process,
27 including prior public notice and subsequent public disclosure
28 of all proposals considered and contracts awarded. Any contract
29 or subcontract made in violation of this subsection shall be
30 voidable by a court of competent jurisdiction if the suit is
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1 commenced within 90 days of the making of the contract or
2 subcontract.
3 [(d) Other areas of possible conflict shall be addressed by
4 the commission pursuant to paragraph (9) of section 7.]
5 (e) No former public official or public employee shall
6 represent a person, with or without compensation, on any matter
7 before the governmental body with which he has been associated
8 for one year after he leaves that body.
9 (f) No person shall use for any commercial purpose
10 information copied from statements of financial interests
11 required by this act or from lists compiled from such
12 statements.
13 (g) No former executive-level State employee may for a
14 period of two years from the time that he terminates his State
15 employment be employed by, receive compensation from, assist or
16 act in a representative capacity for a business or corporation
17 that he actively participates in recruiting to the Commonwealth
18 of Pennsylvania or that he actively participated in inducing to
19 open a new plant, facility or branch in the Commonwealth or that
20 he actively participated in inducing to expand an existent plant
21 or facility within the Commonwealth, provided that the above
22 prohibition shall be invoked only when the recruitment or
23 inducement is accomplished by a grant or loan of money or a
24 promise of a grant or loan of money from the Commonwealth to the
25 business or corporation recruited or induced to expand.
26 [(h) (1) Any individual who holds an appointive office in
27 any political subdivision shall not have an interest in any
28 contract or construction in which that political subdivision
29 shall enter or have an interest.
30 (2) Any person violating the provisions of this
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1 subsection shall be barred for a period of five years from
2 engaging in any business or contract with any political
3 subdivision or the Commonwealth or any of its agencies.
4 (3) For purposes of this subsection the term "interest"
5 shall not include the ownership of shares of stock in any
6 corporation in an amount of 5% or less of the total issue for
7 said corporation.]
8 (h) Where voting conflicts are not otherwise addressed by
9 law, rule, regulation, order or ordinance, the following
10 procedure shall be employed. Any public official or public
11 employee, who in the discharge of his official duties, would be
12 required to vote on a matter that would result in a conflict of
13 interest shall abstain from voting and, prior to the vote being
14 taken, publicly announce and disclose the nature of his interest
15 as a public record in a written memorandum filed with the person
16 responsible for recording the minutes of the meeting at which
17 the vote is taken, provided that whenever a governing body would
18 be unable to take any action on a matter before it because a
19 majority of members of the body are required to abstain from
20 voting under the provisions of this subsection, then such
21 members shall be permitted to vote if disclosures are made as
22 otherwise provided herein.
23 Section 4. Statement of financial interests required to be
24 filed.
25 (a) Each public official of the Commonwealth shall file a
26 statement of financial interests for the preceding calendar year
27 with the commission no later than May 1 of each year that he
28 holds such a position and of the year after he leaves such a
29 position. Each public employee [employed by] and public official
30 of the Commonwealth shall file a statement of financial
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1 interests for the preceding calendar year with the department,
2 agency, body or bureau in which he is employed or to which he is
3 appointed or elected no later than May 1 of each year that he
4 holds such a position and of the year after he leaves such a
5 position. Any other public employee or public official shall
6 file a statement of financial interests with the governing
7 authority of the political subdivision by which he is employed
8 or within which he is appointed or elected no later than May 1
9 of each year that he holds such a position and of the year after
10 he leaves such a position.
11 [(b) Each candidate for public office shall file a statement
12 of financial interests for the preceding calendar year with the
13 commission prior to filing a petition to appear on the ballot
14 for election as a public official. A petition to appear on the
15 ballot shall not be accepted by an election official unless the
16 petition includes an affidavit that the candidate has filed the
17 required statement of financial interests with the commission.]
18 (b) (1) Any candidate for a State-level public office shall
19 file a statement of financial interests for the preceding
20 calendar year with the commission on or before the last day
21 for filing a petition to appear on the ballot for election. A
22 copy of the statement of financial interests shall also be
23 appended to such petition.
24 (2) Any candidate for county-level or local office shall
25 file a statement of financial interests for the preceding
26 calendar year with the governing authority of the political
27 subdivision in which he is a candidate on or before the last
28 day for filing a petition to appear on the ballot for
29 election. A copy of the statement of financial interests
30 shall also be appended to such petition.
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1 (3) No petition to appear on the ballot for election
2 shall be accepted by the respective State or local election
3 officials unless the petition has appended thereto a
4 statement of financial interests as set forth in paragraphs
5 (1) and (2). Failure to file the statement in accordance with
6 the provisions of this act shall, in addition to any other
7 penalties provided, be a fatal defect to a petition to appear
8 on the ballot.
9 (c) Each [candidate] nominee for public office [nominated by
10 a public official or governmental body and subject to
11 confirmation by a public official or governmental body] shall
12 file a statement of financial interests for the preceding
13 calendar year with the commission and with the official or body
14 that is vested with the power of confirmation at least ten days
15 before the official or body shall approve or reject the
16 nomination.
17 (d) No public official shall be allowed to take the oath of
18 office or enter or continue upon his duties, nor shall he
19 receive compensation from public funds, unless he has filed a
20 statement of financial interests [with the commission] as
21 required by this act.
22 (e) [(1) Any candidate for State or county-wide public
23 office shall file a statement of financial interests with the
24 commission pursuant to this act and shall file a copy of that
25 statement with the Board of Elections in the county in which
26 the candidate resides.
27 (2) Any candidate for local office shall file a
28 statement of financial interests with the commission pursuant
29 to this act and shall file a copy of that statement with the
30 governing authority of the political subdivision in which he
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1 is a candidate.
2 (f)] All statements of financial interest filed pursuant to
3 the provisions of this act shall be made available for public
4 inspection and copying during regular office hours, and copying
5 facilities shall be made available at a charge not to exceed
6 actual cost.
7 Section 5. Statement of financial interests.
8 (a) The statement of financial interests filed pursuant to
9 this act shall be on a form prescribed by the commission. All
10 information requested on the statement shall be provided to the
11 best of the knowledge, information and belief of the person
12 required to file and shall be signed under [penalty of perjury
13 by the person required to file the statement] oath or equivalent
14 affirmation.
15 (b) The statement shall include the following information
16 for the prior calendar year with regard to the person required
17 to file the statement [and the members of his immediate family].
18 (1) [The name] Name, address and public position [of the
19 person required to file the statement].
20 (2) [The occupations or professions of the person
21 required to file the statement and those of his immediate
22 family] Occupation or profession.
23 (3) Any direct or indirect interest in any real estate
24 which was sold or leased to the Commonwealth, any of its
25 agencies or political subdivisions; purchased or leased from
26 the Commonwealth, any of its agencies or political
27 subdivisions; or which was the subject of any condemnation
28 proceedings by the Commonwealth, any of its agencies or
29 political subdivisions.
30 (4) The name and address of each creditor to whom is
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1 owed in excess of $5,000 and the interest rate thereon.
2 However, loans or credit extended between members of the
3 immediate family and mortgages securing real property which
4 is the principal residence of the person filing [or of his
5 spouse] shall not be included.
6 (5) The name and address of any [person who is the]
7 direct or indirect source of income totalling in the
8 aggregate [$500] $1,000 or more. However, this provision
9 shall not be construed to require the divulgence of
10 confidential information protected by statute or existing
11 professional codes of ethics or common law privileges.
12 [(6) The name and address of any person from whom a gift
13 or gifts valued in the aggregate at $200 or more were
14 received, and the value and the circumstances of each gift.
15 However, this provision shall not be applicable to gifts
16 received from the individual's spouse, parents, parents by
17 marriage, siblings, children or grandchildren.
18 (7) The source of any honorarium received which is in
19 excess of $100.]
20 (6) (i) The name and address of the source and the
21 amount of any gift or gifts valued in the aggregate at
22 $200 or more and the circumstances of each gift. This
23 paragraph shall not apply to a gift or gifts received
24 from a spouse, parent, parent by marriage, sibling,
25 child, grandchild or other family member.
26 (ii) A person who is the source of any gift or gifts
27 required to be reported pursuant to this subsection
28 shall, quarterly, inform the recipient of the value and
29 aggregate value and circumstances of such gift or gifts.
30 (7) The name and address of the source and the amount of
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1 any honorarium received which is in excess of $100.
2 (8) Any office, directorship or employment of any nature
3 whatsoever in any business entity.
4 (9) Any financial interest in any legal entity engaged
5 in business for profit.
6 (10) The identity of any financial interest in a
7 business with which the reporting person is or has been
8 associated in the preceding calendar year which has been
9 transferred to a member of the reporting person's immediate
10 family.
11 (c) [The] Except where an amount is required to be reported
12 pursuant to paragraphs (6) and (7), the statement of financial
13 [interest] interests need not include specific amounts for [any
14 of] the items required to be listed.
15 Section 6. State Ethics Commission.
16 (a) There is established a State Ethics Commission composed
17 of seven members[,]. The President pro tempore of the Senate,
18 the Minority Leader of the Senate, the Speaker of the House, and
19 the Minority Leader of the House shall each appoint one member.
20 Three members shall be appointed by the Governor without
21 confirmation. No more than two of the members appointed by the
22 Governor shall be of the same political party. No appointee
23 shall have served as an officer in a political party for one
24 year prior to his appointment.
25 (b) Members of the commission shall serve for terms of five
26 years[, except that, of the members first appointed:
27 (1) the two members appointed by the President pro
28 tempore and Minority Leader of the Senate shall serve for
29 four years;
30 (2) the two members appointed by the Speaker and the
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1 Minority Leader of the House shall serve for two years; and
2 (3) of the three members appointed by the Governor two
3 shall serve for three years, and one shall serve for five
4 years].
5 (c) No member shall be appointed to more than one full five-
6 year term on the commission.
7 (d) No individual, while a member or employee of the
8 commission, shall:
9 (1) hold or campaign for any other public office;
10 (2) hold office in any political party or political
11 committee;
12 (3) actively participate in or contribute to any
13 political campaign;
14 (4) directly or indirectly attempt to influence any
15 decision by a governmental body, other than a court of law or
16 as a representative of the commission on a matter within the
17 jurisdiction of the commission; or
18 (5) be employed by the Commonwealth or a political
19 subdivision in any other capacity, whether or not for
20 compensation.
21 (e) A majority of the commission by resolution shall declare
22 vacant the position on the commission of any member who takes
23 part in activities prohibited by subsection (d). An individual
24 appointed to fill a vacancy occurring other than by the
25 expiration of a term of office shall be appointed for the
26 unexpired term of the member he succeeds, and is eligible for
27 appointment to one full five-year term thereafter. Any vacancy
28 occurring on the commission shall be filled within 30 days in
29 the manner in which that position was originally filled.
30 (f) The commission shall elect a chairman and a vice
19890S0286B0293 - 18 -
1 chairman. The vice chairman shall act as chairman in the absence
2 of the chairman or in the event of a vacancy in that position.
3 (g) Four members of the commission shall constitute a quorum
4 and the votes of a majority of the members present is required
5 for any action or recommendation of the commission. The chairman
6 or any four members of the commission may call a meeting
7 provided that advance written notice is mailed to each member
8 and to any person who requests notice of such meetings.
9 (h) Members of the commission shall be compensated at a rate
10 of [$50] $75 per day and shall receive reimbursement for their
11 actual and necessary expenses while performing the business of
12 the commission.
13 (i) The commission shall employ an executive director, a
14 [general] chief counsel, and such other staff as are necessary
15 to carry out its duties pursuant to this act. The executive
16 director shall be responsible for the administrative operations
17 of the commission and shall perform such other duties as may be
18 delegated or assigned to him by the commission, except that the
19 commission shall not delegate the making of regulations to the
20 executive director. The [general] chief counsel shall be the
21 chief legal officer of the commission. The commission may obtain
22 the services of experts and consultants as necessary to carry
23 out its duties pursuant to this act. The State Treasurer and the
24 Attorney General shall make available to the commission such
25 personnel, facilities, and other assistance as the commission
26 may request.
27 Section 7. [Duties] Powers and duties of the commission.
28 In addition to other powers and duties prescribed by law, the
29 commission shall:
30 (1) Prescribe and publish rules and regulations to carry
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1 out the provisions of this act.
2 (2) Prescribe forms for statements and reports required
3 to be filed by this act and furnish such forms to persons
4 required to file such statements and reports.
5 (3) Prepare and publish guidelines setting forth
6 recommended uniform methods of accounting and reporting for
7 use by persons required to file statements and reports by
8 this act.
9 (4) Accept and file any information voluntarily supplied
10 that exceeds the requirements of this act.
11 (5) Inspect statements of financial interests which have
12 been filed in order to ascertain whether any reporting person
13 has failed to file such a statement or has filed a deficient
14 statement. If, upon inspection, it is determined that a
15 reporting person has failed to file a statement of financial
16 interests or that any statement which has been filed fails to
17 conform with the requirements of section 5, then the
18 commission shall, in writing, notify the person. Such notice
19 shall state in detail the deficiency and the penalties for
20 failure to file or for filing a deficient statement of
21 financial interests.
22 [(5) Make] (6) Provide that statements and reports
23 filed with the commission be made available for public
24 inspection and copying during regular office hours and [make]
25 provide that copying facilities be made available at a charge
26 not to exceed actual cost and advise other State and local
27 agencies of the provisions of this paragraph.
28 [(6)] (7) Compile and maintain an index of all reports
29 and statements filed with the commission to facilitate public
30 access to such reports and statements and instruct other
19890S0286B0293 - 20 -
1 State and local agencies which receive and file financial
2 interest statements in the maintenance of systems which
3 facilitate public access to such statements.
4 [(7)] (8) Prepare and publish annual summaries of
5 statements and reports filed with the commission.
6 [(8)] (9) Preserve statements and reports filed with the
7 commission for a period of five years from date of receipt
8 and advise other State and local agencies which receive and
9 store financial interests statements to preserve such
10 statements for a period of five years from date of receipt.
11 [(9) (i)] (10) Issue to any person, upon such person's
12 request, an opinion with respect to such person's duties
13 under this act. The commission shall, within 14 days, either
14 issue the opinion or advise the person who made the request
15 whether an opinion will be issued. No person who acts in good
16 faith on an opinion issued to him by the commission shall be
17 subject to criminal or civil penalties for so acting,
18 provided that the material facts are as stated in the opinion
19 request. The commission's opinions shall be public records
20 and may from time to time be published.
21 [(ii)] (11) Provide written advice to any person or
22 the appointing authority or employer of said official, upon
23 their request with respect to such person's duties under this
24 act. Such advice shall be provided within 21 working days of
25 the request, provided that the time may be extended for good
26 cause. It shall be a complete defense in any enforcement
27 proceeding initiated by the commission, and evidence of good
28 faith conduct in any other civil or criminal proceeding, if
29 the requester, at least 21 working days prior to the alleged
30 violation, requested written advice from the commission in
19890S0286B0293 - 21 -
1 good faith, disclosed truthfully all the material facts and
2 committed the acts complained of either in reliance on the
3 advice or because of the failure of the commission to provide
4 advice within 21 days of the request [of] or such later
5 extended time.
6 [(iii)] (12) Initiate an inquiry, pursuant to
7 section 8(a), where [an opinion] a complaint has not been
8 [requested] filed but where there [is a reasonable belief]
9 may be reason to believe that a conflict [may exist] exists.
10 [Such inquiry shall be conducted in privacy with full respect
11 to the confidentiality of all the parties involved in the
12 alleged conflict. If the commission finds that there is a
13 conflict, the information shall be provided for criminal
14 proceedings unless the alleged offender removes himself from
15 the conflict with receiving financial gain.
16 (iv) Issue advisory opinions to any present or
17 former State employee who contemplates terminating his
18 State employment and/or becoming employed by, contracting
19 with, assisting or acting in a representative capacity
20 for a business or corporation, upon such employee's
21 request. That opinion shall state whether, upon the facts
22 presented, such employment, contract, assistance or
23 representation would be in violation of section 3(g). If
24 the advisory opinion states that such employment,
25 contract, assistance or representation would not be in
26 violation of the provisions of section 3(g), the person
27 who requested the opinion may not be prosecuted or
28 penalized, either criminally or civilly, under the
29 provisions of this act provided that the actions under
30 question bear a substantial similarity to the facts
19890S0286B0293 - 22 -
1 presented to the commission.]
2 (13) Issue findings reports and orders relating to
3 investigations initiated pursuant to section 8, which set
4 forth the alleged violation, findings of fact and conclusions
5 of law. An order may include recommendations to law
6 enforcement officials. Any order resulting from a finding
7 that a public official or public employee has obtained a
8 financial gain in violation of this act may require the
9 restitution plus interest of that gain to the appropriate
10 governmental body. The commission or the Office of Attorney
11 General shall have standing to apply to the Commonwealth
12 Court to seek enforcement of an order requiring such
13 restitution. This restitution requirement shall be in
14 addition to any other penalties provided for in this act.
15 [(10)] (14) Hold hearings, take testimony, issue
16 subpoenas and compel the attendance of witnesses.
17 [(11)] (15) Make recommendations to law enforcement
18 officials either for criminal prosecution or dismissal of
19 charges arising out of violations of this act.
20 [(12)] (16) Prepare and publish special reports,
21 educational materials, and technical studies to further the
22 purposes of this act.
23 [(13)] (17) Prepare and publish, prior to June 1 of each
24 year, an annual report summarizing the activities of the
25 commission.
26 (18) Transmit, free of charge, copies of each order,
27 advice and opinion which has become a matter of public record
28 to the appointing authorities specified in section 6(a).
29 Section 8. Investigations by the commission.
30 (a) Upon a complaint signed under penalty of perjury by any
19890S0286B0293 - 23 -
1 person or upon its own motion, the commission [shall
2 investigate], through its executive director, shall conduct a
3 preliminary inquiry into any alleged violation of this act. [All
4 commission proceedings and records relating to an investigation
5 shall be confidential until a final determination is made by the
6 commission. The executive director shall notify any person under
7 investigation by the commission of the investigation and of the
8 nature of the alleged violation within five days of the
9 commencement of the investigation. Within 15 days of the filing
10 of a sworn complaint by a person alleging a violation, and every
11 30 days thereafter until the matter is terminated, the executive
12 director shall notify the complainant of the action taken to
13 date by the commission together with the reasons for such action
14 or nonaction.] The commission shall keep information, records
15 and proceedings relating to a preliminary inquiry confidential.
16 The commission shall, however, have the authority to refer the
17 case to law enforcement officials during a preliminary inquiry
18 or anytime thereafter without providing notice to the subject of
19 the inquiry. The commission shall complete its preliminary
20 inquiry within 60 days of its initiation.
21 (b) If a preliminary [investigation] inquiry fails to
22 [indicate probable cause for belief] establish reason to believe
23 that this act has been violated, the commission shall terminate
24 the [investigation] inquiry and so notify the complainant and
25 the person who had been [under investigation.] the subject of
26 the inquiry. If the commission determines that a complaint is
27 frivolous, it shall so state.
28 (c) If a preliminary inquiry establishes reason to believe
29 that this act has been violated, the commission may, through its
30 executive director, initiate an investigation to determine if
19890S0286B0293 - 24 -
1 there has been a violation. The commission shall keep
2 information, records and proceedings relating to an
3 investigation confidential until a final determination is made,
4 except as otherwise provided in subsection (f). No investigation
5 may be commenced until the person who is the subject of the
6 investigation has been notified and provided a general statement
7 of the alleged violation or violations of the act and other
8 applicable statutes with respect to such investigation. Service
9 of notice is complete upon mailing which shall be by certified
10 or registered mail. The commission shall notify the complainant
11 within 72 hours of the commencement of an investigation and,
12 thereafter, the commission shall advise the complainant and the
13 person who is the subject of the investigation of the status of
14 the investigation at least every 90 days until the investigation
15 is terminated. The commission shall, within 180 days of the
16 initiation of an investigation, either terminate the
17 investigation pursuant to subsection (d) or issue a findings
18 report pursuant to subsection (e). Upon a showing by the
19 executive director of the need for extension of this period, the
20 commission may extend an investigation for up to two 90-day
21 periods, provided that each 90-day extension shall be approved
22 by a majority vote of members present. In no event shall a
23 findings report be issued later than 360 days after initiation
24 of an investigation.
25 (d) If an investigation conducted under this act indicates
26 that no violation has been committed, the commission shall
27 immediately terminate the investigation and send written notice
28 of such determination to the complainant and the person who was
29 the subject of the investigation.
30 (e) The commission, upon the completion of an investigation,
19890S0286B0293 - 25 -
1 shall issue a findings report to the subject of the
2 investigation setting forth the pertinent findings of fact. The
3 subject shall have the right to respond to said findings and to
4 request an evidentiary hearing on said matter. Any response to
5 the findings report must either admit or deny by corresponding
6 number and letter the pertinent facts set forth. The subject of
7 the investigation shall have access to any evidence intended to
8 be used by the commission at the hearing. Matters not
9 specifically denied in the response shall be deemed admitted.
10 The response must be filed within 30 days of the issuance of the
11 findings report unless the time period is extended by the
12 commission for good cause shown. Hearings conducted upon request
13 shall be instituted within 45 days after the filing of the
14 response.
15 (f) Within 30 days of the receipt by the commission of the
16 hearing record, or if no hearing is to be held, within 30 days
17 of the receipt by the commission of the response to the findings
18 report, the commission shall issue an order which shall be
19 final. Upon receipt of a final order, the subject shall have the
20 right to file a petition for reconsideration in accordance with
21 the regulations of the commission.
22 (g) Hearings conducted pursuant to this section shall be
23 closed to the public unless the subject requests an open
24 hearing. Any person who appears before the commission shall have
25 all of the due process rights, privileges and responsibilities
26 of a party or witness appearing before an administrative agency
27 of this Commonwealth. All witnesses summoned for such hearings
28 shall receive reimbursement for reasonable expenses in
29 accordance with 42 Pa.C.S. § 5903 (relating to compensation and
30 expenses of witnesses). At the conclusion of a hearing
19890S0286B0293 - 26 -
1 concerning an alleged violation and in a timely manner, the
2 commission shall deliberate on the evidence and determine, by
3 majority vote of the members present, whether there has been a
4 violation of this act. The determination of the commission, in
5 the form of a final order and findings of fact, shall be a
6 matter of public record.
7 (h) Orders which become final in accordance with the
8 provisions of this section shall be available as public
9 documents, but the files and records of the commission relating
10 to the case shall remain confidential.
11 (i) No action may be taken by the commission on a complaint
12 filed against a public official or public employee unless the
13 alleged offense was committed during the period of time within
14 which the official or employee was in public office, was a
15 nominee or candidate for public office, or was employed as a
16 public employee, or within five years thereafter.
17 (j) Any person aggrieved by an opinion or order which
18 becomes final in accordance with the provisions of this act who
19 has direct interest in such opinion or order shall have the
20 right to appeal therefrom in accordance with law and general
21 rules.
22 (k) No public official or public employee shall discharge
23 any official or employee or change his official rank, grade or
24 compensation, or deny him a promotion, or threaten to do so, for
25 filing a complaint with or providing information to the
26 commission or testifying in any commission proceeding.
27 Section 9. Penalties.
28 (a) Any person who violates the provisions of section 3(a)
29 and (b) is guilty of a felony and shall be fined not more than
30 $10,000 or imprisoned for not more than five years, or be both
19890S0286B0293 - 27 -
1 fined and imprisoned.
2 (b) Any person who violates the provisions of section 3(c)
3 through [(h) or] (h), section 4 or section 5(a) is guilty of a
4 misdemeanor and shall be fined not more than $1,000 or
5 imprisoned for not more than one year, or be both fined and
6 imprisoned.
7 (c) Any person who obtains financial gain from violating any
8 provision of this act, in addition to any other penalty provided
9 by law, shall pay [into the State Treasury] a sum of money equal
10 to three times the amount of the financial gain resulting from
11 such violation into the State Treasury or the treasury of the
12 political subdivision. Treble damages shall not be assessed
13 against a person who acted in good faith reliance on the advice
14 of legal counsel.
15 (d) The penalties prescribed in this act do not limit the
16 power of either House of the Legislature to discipline its own
17 members or impeach a public official, and do not limit the power
18 of agencies or commissions to discipline officials or employees.
19 (e) Any person who violates the confidentiality of a
20 commission proceeding pursuant to section 8, is guilty of a
21 misdemeanor and shall be fined not more than $1,000 or
22 imprisoned for not more than one year, or be both fined and
23 imprisoned. Any person who engages in retaliatory activity
24 proscribed by section 8(k) is guilty of a misdemeanor and, in
25 addition to any other penalty provided by law, shall be fined
26 not more than $1,000 or imprisoned for not more than one year,
27 or be both fined and imprisoned. Any person who willfully
28 affirms or swears falsely in regard to any material matter
29 before a commission proceeding pursuant to section 8 is guilty
30 of a felony and shall be fined not more than $5,000 or
19890S0286B0293 - 28 -
1 imprisoned for not more than five years, or be both fined and
2 imprisoned.
3 (f) In addition to any other civil remedy or criminal
4 penalty provided for in this act, the commission may, after
5 notice has been served in accordance with paragraph (5) of
6 section 7 and upon a majority vote of its members, levy a civil
7 penalty upon any person subject to this act who fails to file a
8 statement of financial interests in a timely manner or who files
9 a deficient statement of financial interests, at a rate of not
10 more than $25 for each day such statement remains delinquent or
11 deficient. The maximum penalty payable under this paragraph is
12 $250.
13 Section 10. [Court employees.] Constables.
14 Nothing in this act, or in any other law or court rule shall
15 be construed to prohibit any constable [or any employee of a
16 court of common pleas, the Municipal Court of Philadelphia, the
17 Traffic Court of Philadelphia, or any employee of a district
18 justice] from also being an officer of a political body or
19 political party as such terms are defined in the act of June 3,
20 1937 (P.L.1333, No.320), known as the "Pennsylvania Election
21 Code," and the same may hold the office of a county, State or
22 national committee of any political party, and may run for and
23 hold any elective office, and may participate in any election
24 day activities.
25 Section 2. The act is amended by adding a section to read:
26 Section 10.1. Wrongful use of act.
27 (a) A person who signs a complaint alleging a violation of
28 this act against another is subject to liability for wrongful
29 use of this act if:
30 (1) he acted in a grossly negligent manner or without
19890S0286B0293 - 29 -
1 probable cause and primarily for a purpose other than that of
2 reporting a violation of this act;
3 (2) he publicly disclosed or caused to be disclosed that
4 a complaint against a person had been filed with the
5 commission; and
6 (3) the complaint was frivolous as defined by this act
7 or there was a lack of probable cause for belief that this
8 act had been violated by the person.
9 (b) A person who signs a complaint alleging a violation of
10 this act has probable cause for doing so if he reasonably
11 believes in the existence of the facts upon which the claim is
12 based and either:
13 (1) reasonably believes that under those facts the
14 complaint may be valid under this act; or
15 (2) believes to this effect in reliance upon the advice
16 of counsel, sought in good faith and given after full
17 disclosure of all relevant facts within his knowledge and
18 information.
19 (c) When the commission determines that a complainant has
20 violated the provisions set forth in section 10.1(a) the
21 commission upon receiving a written request from the subject of
22 the complaint shall provide the name and address of the
23 complainant to said subject.
24 (d) When the essential elements of an action brought
25 pursuant to this section have been established, the plaintiff is
26 entitled to recover the following:
27 (1) The expenses, including any reasonable attorney
28 fees, that he has reasonably incurred in proceedings before
29 the commission.
30 (2) Any specific pecuniary loss that has resulted from
19890S0286B0293 - 30 -
1 the proceedings.
2 Section 3. Section 11 of the act is reenacted and amended to
3 read:
4 Section 11. Supplemental provisions.
5 Any governmental body may adopt requirements to supplement
6 this act, provided that no such [requirement] requirements shall
7 in any way be less restrictive than the act.
8 Section 4. Sections 12 and 13 of the act are reenacted to
9 read:
10 Section 12. Conflict of law.
11 If the provisions of this act conflict with any other
12 statute, ordinance, regulation or rule, the provisions of this
13 act shall control.
14 Section 13. Severability.
15 If any provision of this act, or the application thereof to
16 any person or circumstance, is held invalid, the validity of the
17 remainder of this act and the application of such provisions to
18 other persons and circumstances shall not be affected thereby.
19 Section 5. Section 14 of the act, amended February 26, 1979
20 (P.L.1, No.1), is reenacted to read:
21 Section 14. Effective date.
22 This act shall take effect January 1, 1979 except that
23 subsections (b) and (e) of section 4 shall take effect August 1,
24 1979 and subsections (a) and (d) of section 4 shall take effect
25 January 1, 1980: Provided, however, That the Ethics Commission
26 shall have the power and duty to require the filing of the
27 financial disclosure statements of candidates for elective
28 office between August 1, 1979 and January 1, 1980 at least 60
29 days prior to such election, or in the case of a special
30 election at least 15 days prior to such election.
19890S0286B0293 - 31 -
1 Section 6. Persons who are members of the State Ethics
2 Commission on the effective date of this act shall serve until
3 their current terms have expired and shall be subject to the
4 additional restrictions of section 6(d)(3) and (5) of the act of
5 October 4, 1978 (P.L.883, No.170), referred to as the Public
6 Official and Employee Ethics Law, unless a current commissioner
7 was employed by a political subdivision on or before the
8 effective date of this amendatory act, in which case the
9 restriction set forth in section 6(d)(5) shall not apply.
10 Section 7. All rules and regulations promulgated by the
11 State Ethics Commission shall remain in full force and effect
12 until amended or rescinded by the commission, provided that the
13 commission shall immediately initiate action to rescind or amend
14 any rule or regulation that is in conflict with the provisions
15 of this amendatory act or to promulgate additional regulations
16 which may be required to implement the provisions of this
17 amendatory act.
18 Section 8. This act, with respect to the State Ethics
19 Commission, constitutes the legislation required to reestablish
20 an agency pursuant to the act of December 22, 1981 (P.L.508,
21 No.142), known as the Sunset Act. The State Ethics Commission
22 shall continue, together with its statutory functions and
23 duties, until December 31, 1993, when it shall terminate and go
24 out of existence unless reestablished or continued by the
25 General Assembly for an additional ten years. Evaluation,
26 review, termination, reestablishment and continuation of the
27 agency beyond December 31, 1993, and every tenth year
28 thereafter, shall be conducted pursuant to the Sunset Act.
29 Section 9. This amendatory act shall not apply to violations
30 committed prior to the effective date of this act, and causes of
19890S0286B0293 - 32 -
1 action initiated for such violations shall be governed by the
2 prior law, which is continued in effect for that purpose as if
3 this act were not in force. For the purposes of this section, a
4 violation was committed prior to the effective date of this act
5 if any elements of the violation occurred prior thereto.
6 Section 10. The sum of $30,000 is hereby appropriated to the
7 State Ethics Commission for the indexing of all opinions, orders
8 or advice of the commission, and for the maintenance of this
9 index.
10 Section 11. Sections 6, 7 and 8 of this act shall be
11 retroactive to December 31, 1988.
12 Section 12. This act shall take effect immediately.
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