STATE ETHICS COMMISSION

PUBLIC OFFICIAL AND EMPLOYEE ETHICS LAW

Presented by:

Mary W. FoxAssistant Counsel

Newly Elected Officials CourseMarch 6, 2008

The Pennsylvania State Ethics The Pennsylvania State Ethics CommissionCommission

1-800-932-0936

www.ethics.state.pa.us

AgendaAgenda

Introduction to the Ethics ActJurisdiction – who and whatRestricted ActivitiesAdvices and Opinions PenaltiesWhere to obtain further information

Introduction to the Ethics Act Introduction to the Ethics Act and the Pennsylvania and the Pennsylvania

State Ethics Commission State Ethics Commission

Purpose of the Ethics ActPurpose of the Ethics Act

The Public Official and Employee Ethics Act, now codified at 65 Pa.C.S. § 1101 et seq., was enacted to strengthen the faith and confidence of the people of Pennsylvania in their government.

Protecting the Public TrustProtecting the Public Trust

The Ethics Act provides that: Public office is a public trust. Any effort to realize personal financial gain

through public office other than compensation provided by law is a violation of the public trust.

The people have the right to be assured that the financial interests of holders of or nominees or candidates for public office do not conflict with the public trust.

65 Pa.C.S. § 1101.1(a).

Liberal Construction andLiberal Construction andClear GuidelinesClear Guidelines The Ethics Act is to be liberally construed to

promote complete financial disclosure as specified by the Act.

The Ethics Act is intended to provide clear guidelines to public officials and public employees regarding those areas which represent conflict with the public trust.

65 Pa.C.S. § 1101.1(a).

The State Ethics CommissionThe State Ethics Commission

The State Ethics Commission is an independent Commonwealth agency that administers, interprets and enforces the Ethics Act.

Composition of the State Ethics Composition of the State Ethics CommissionCommission The State Ethics Commission is composed of

seven Members. Three members are appointed by the Governor,

without Senate confirmation. No more than two of the members appointed by the Governor may be of the same political party.

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 each appoint one Member.

65 Pa.C.S. § 1106(a).

Terms of Members of the State Terms of Members of the State Ethics CommissionEthics Commission

Members of the State Ethics Commission may serve for up to two full three-year terms.

When their terms expire, Members continue to serve until their successors are appointed and qualified.

65 Pa.C.S. § § 1106(b)-(c).

State Ethics Commission State Ethics Commission Members and Employees are Members and Employees are Prohibited From:Prohibited From: Holding or campaigning for any other public office; Holding office in any political party or political committee; Actively participating in or contributing to any political

campaign; Directly or indirectly attempting 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 Commission’s jurisdiction; or

Being employed by the Commonwealth or a political subdivision in any other capacity, with or without compensation.

65 Pa.C.S. § 1106(d).

Commissioner Code of Commissioner Code of ConductConductIn addition to complying with the Ethics

Act as public officials, Members of the State Ethics Commission must comply with a more stringent code of conduct promulgated by the Commission. 65 Pa.C.S. § 1106(j).

The Code of Conduct for Members of the State Ethics Commission is at 51 Pa. Code § § 23.21-23.23.

JurisdictionJurisdiction

Who is regulated by the Ethics Act?

What does the Ethics Act require and prohibit?

Who is Regulated by the Ethics Act? The Ethics Act primarily regulates “public

officials,” “public employees,” “candidates” and “nominees.” One provision of the Ethics Act applies broadly to “persons.”

The above terms are defined by the Ethics Act. In order for a provision of the Ethics Act to apply

to a particular person, the applicable definition(s) must apply to that person.

Definition of “Public Official”Definition of “Public Official”

“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. 65 Pa.C.S. § 1102.

Applying the Definition of Applying the Definition of “Public Official”“Public Official” The first portion of the definition provides that a

public official is a person who is: (1) elected by the public; (2) elected or appointed by a governmental body; or (3) an appointed official in the executive, legislative or judicial branch of the Commonwealth of Pennsylvania or a political subdivision of the Commonwealth. Muscalus, Opinion 02-007.

When the first portion of the definition is met, one’s status as a public official subject to the Ethics Act is established, unless the exclusion for members of purely advisory boards is applicable (see, 65 Pa.C.S. § 1102). Eiben, Opinion 04-002.

Definition of “Public Employee” Definition of “Public Employee” “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 greater than a de minimis nature on the interests of any person. 65 Pa.C.S. § 1102.

Applying the Definition of Applying the Definition of “Public Employee”“Public Employee” To be a “public employee” subject to the Ethics Act, an individual

must stand in an employer-employee relationship with the Commonwealth or a political subdivision of the Commonwealth. Eiben, Opinion 04-002; Ver Ellen, Opinion 03-005.

Status as a "public employee" subject to the Ethics Act is determined by an objective test that applies the statutory and regulatory definitions and criteria to the powers and duties of the position.

Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart.

The objective test considers what an individual has the authority to do in a given position, rather than the variable functions that the individual may actually perform in that position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984).

Definition of “Candidate” Definition of “Candidate”

“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. 65 Pa.C.S. § 1102.

Definition of “Nominee”Definition of “Nominee”

“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. 65 Pa.C.S. § 1102.

Definition of “Person” Definition of “Person”

“Person.” A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 Pa.C.S. § 1102.

What does the Ethics Act What does the Ethics Act Require and Prohibit? Require and Prohibit?

The Ethics Act includes both requirements and prohibitions:

Requirements for disclosure of financial interests;

Prohibitions against engaging in certain “Restricted Activities”; and

Requirements for abstention and disclosure as to conflicts of interest.

Statements of Financial Statements of Financial InterestsInterests

The Ethics Act provides that public officials, public employees, candidates and nominees must file “Statements of Financial Interests” publicly disclosing certain financial information. 65 Pa.C.S. § § 1104, 1105.

The State Ethics Commission is authorized to administer and enforce these financial disclosure requirements.

Who is Required to File?Who is Required to File?All state and local “public officials,”

elected or appointed, and “public employees” employed by the Commonwealth or by a political subdivision of the Commonwealth

Candidates for state, county and local public office

State, county and local level nomineesFull-time or part-time solicitors for

political subdivisions.

Where to FileWhere to File

Public OfficialsPublic Officials

A Commonwealth public official files with the State Ethics Commission and with the department, agency, body or bureau in which he is employed or to which he is appointed/elected.

A county or local public official files with the governing authority of the political subdivision by which he is employed or to which he is appointed/elected.

Public officials who are also candidates must meet all filing requirements for both capacities.

Public EmployeesPublic Employees

A Commonwealth public employee files with the department, agency, body or bureau by which he is employed.

A county or local public employee files with the governing authority of the political subdivision by which he is employed.

Public employees who are also candidates must meet all filing requirements for both capacities.

CandidatesCandidates

A candidate for state-level public office files with the State Ethics Commission and appends a copy to his petition to appear on the ballot.

A candidate for county or local-level public office files with the governing authority of the political subdivision in which he is a candidate and appends a copy to his petition to appear on the ballot.

A write-in candidate for state-level office files only with the State Ethics Commission. A write-in candidate for county or local-level office files only with the governing authority of the political subdivision. A write-in candidate who declines the nomination or office within 30 days of being certified as the winner need not file.

NomineesNominees

State-level nominees file with the State Ethics Commission and with the official or body vested with the power of confirmation.

County and local-level nominees file with the governing authority of the political subdivision in which they are nominees and, if different, with the official or body vested with the power of confirmation.

Filing DeadlinesFiling Deadlines

Public Officials and Public Public Officials and Public EmployeesEmployees Public officials and public employees who are not

candidates must file by no later than May 1st of each year the position is held and of the year after leaving the position. (Public officials and public employees appointed/hired after May 1 file by May 1 of the following year.)

Public officials and public employees who are candidates must meet all applicable deadlines.

“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.” 65 Pa.C.S. § 1104(d).

CandidatesCandidates

Candidates filing “nomination petitions” (to appear on the ballot for the primary election) must file their Statements of Financial Interests at all required filing locations on or before the deadline for filing their nomination petitions. 

Candidates not chosen through a primary election (such as independent candidates and minor party candidates) who file “nomination papers” to be listed on the ballot for the November election must file their Statements of Financial Interests at all required filing locations on or before the deadline for filing their nomination papers.  

Write-in candidates must file their Statements of Financial Interests at the applicable filing location within 30 days of having been certified as the winner of a nomination or election, unless declining such nomination or office within that period of time.

Failure to file the Statement of Financial Interests as required by the Ethics Act shall, in addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot. 65 Pa.C.S. § 1104(b)(3).

NomineesNominees

Nominees must file the Statement of Financial Interests form by NO LATER THAN 10 (ten) days prior to approval or rejection of the nomination.

Managing the Statement of Financial Managing the Statement of Financial Interests Process AdministrativelyInterests Process Administratively

The State Ethics Commission provides the SFI forms for distribution.Pointer: Make sure you have a sufficient number of forms for all who must file.

Distribute forms to ALL officials and employees who are required to file.Pointer: Document the distribution with a dated memo advising filers of the filing deadlines. Keep a written record of all recipients.

The filer is responsible for the content of the form. The filing location and its staff are not responsible for another person’s failure to comply with the Ethics Act.

Some filing locations check the forms for completeness.Pointers: Such filing locations make sure each form is signed and dated and may point out to the filer any blocks that have not been completed.

Accurately record receipt of forms.Pointer: Time stamp all forms when received.

SFI Deficiencies/DelinquenciesSFI Deficiencies/Delinquencies

Some filing locations follow certain procedures, such as Management Directives, to address SFI filing problems.

Some filing locations address SFI filing problems through internal processes, such as notifying a board chair or a solicitor.

The Ethics Commission enforces SFI filing requirements and may be informed of filing delinquencies or deficiencies.

Statements of Financial Statements of Financial Interests are Public RecordsInterests are Public Records Forms must be made available for public

inspection and copying during regular office hours.

Forms must be kept on file for 5 years from date of receipt.

Any fee for copies may not exceed actual cost. The filing location may not require an

explanation from the requester as to the reasons for requesting the forms or the intended use of the forms.

Restricted ActivitiesRestricted Activities

Section 1103 of the Ethics Act delineates certain restricted activities in which public officials and public employees may not engage.

Section 1103(a): Conflict of Section 1103(a): Conflict of InterestInterest

§ 1103. Restricted activities(a) Conflict of interest.--No public

official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a).

Definition: Conflict or Conflict Definition: Conflict or Conflict of Interestof Interest

“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. 65 Pa.C.S. § 1102.

Definition: Authority of Office Definition: Authority of Office or Employmentor Employment

“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. 65 Pa.C.S. § 1102.

Definition: Immediate FamilyDefinition: Immediate Family

“Immediate family.” A parent, spouse, child, brother or sister. 65 Pa.C.S. § 1102.

Definition: BusinessDefinition: Business

“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. 65 Pa.C.S. § 1102.

Definition: Business With Definition: Business With Which He is AssociatedWhich He is Associated

“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. 65 Pa.C.S. § 1102.

Definition: Financial InterestDefinition: Financial Interest

“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. 65 Pa.C.S. § 1102.

Conflicts Might Involve, But Are Conflicts Might Involve, But Are Not Limited To, These Areas:Not Limited To, These Areas: Nepotism Private Employment or Business Opportunities

Contract Awards Embezzlement Private Use of Government Personnel, Equipment, and Facilities Excess, Unauthorized, or False Expenses Private Use of Frequent Point Programs or Discount Programs Vendor Contests Surplus Property Gifts/Travel/Hospitality Provided by Vendor, Contractor, or

Regulated Person or Entity Unauthorized Certification Fees

De Minimis Economic Impact De Minimis Economic Impact and Class/Subclass Exclusionsand Class/Subclass Exclusions

The statutory definition of “conflict” or “conflict of interest” excludes an action:(1) Having a de minimis economic impact; or(2) 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. 65 Pa.C.S. § 1102.

De Minimis Economic Impact De Minimis Economic Impact ExclusionExclusion

The Ethics Act defines the term “de minimis

economic impact” as “An economic consequence which has an insignificant effect.” 65 Pa.C.S. § 1102.

The de minimis economic impact exclusion precludes a finding of a conflict of interest as to an action having a de minimis (insignificant) economic impact.

Class/Subclass ExclusionClass/Subclass Exclusion For the class/subclass exclusion to apply, the affected public

official/public employee, immediate family member, or business with which the public official/public employee or immediate family member is associated must: (1) be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) be affected "to the same degree" as (in no way differently than) the other members of the class/subclass. 65 Pa.C.S. § 1102.

The first criterion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. Kablack, Opinion 02-003.

The second criterion is satisfied where the individual/business in question and the other members of the class/subclass are reasonably affected to the same degree by the proposed action. Kablack, Opinion 02-003.

Abstention and Disclosure Abstention and Disclosure Requirements for ConflictsRequirements for Conflicts Section 1103(j) of the Ethics Act provides

abstention and disclosure requirements for public officials and public employees with voting conflicts.

The State Ethics Commission has applied the requirements for abstention and disclosure to non-voting conflicts as well.

For any voting or non-voting conflict, abstention is necessary to avoid a prohibited use of authority of office.

Section 1103(j) of the Ethics ActSection 1103(j) of the Ethics Act

§ 1103. Restricted activities(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. 65 Pa.C.S. § 1103(j).

Voting Conflict ExceptionsVoting Conflict Exceptions Section 1103(j) of the Ethics Act includes two exceptions. The exception for breaking a tie vote despite a conflict is

available exclusively to members of three-member governing bodies who first abstain and disclose their conflicts as required.

The other exception is not limited to three-member boards but requires that the following conditions be met: (1) the board must be unable to take any action on the matter because the number of members required to abstain from voting under the Ethics Act makes the majority or other legally required vote of approval unattainable; and (2) prior to voting, such members with conflicts must disclose the conflicts. Pavlovic, Opinion 02-005.

When a voting conflict exception applies, it allows for voting only and does not permit other forms of participation. Whitlock, Opinion 04-015.

Restricted Activity:Restricted Activity:Seeking Improper InfluenceSeeking Improper Influence

§ 1103. Restricted activities(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. 65 Pa.C.S. § 1103(b).

Restricted Activity:Restricted Activity:Accepting Improper InfluenceAccepting Improper Influence§ 1103. Restricted activities

(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. 65 Pa.C.S. § 1103(c).

Restricted Activity: Restricted Activity: Accepting an HonorariumAccepting an Honorarium

§ 1103. Restricted activities(d) Honorarium.--No public official

or public employee shall accept an honorarium. 65 Pa.C.S. § 1103(d).

Restricted Activity: Improper Restricted Activity: Improper ContractingContracting

§ 1103. Restricted activities(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. 65 Pa.C.S. § 1103(f).

Definition: ContractDefinition: Contract

“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. 65 Pa.C.S. § 1102.

Revolving-Door Restrictions for Revolving-Door Restrictions for Former Public Officials/Public Former Public Officials/Public EmployeesEmployees

§ 1103. Restricted activities(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. 65 Pa.C.S. § 1103(g).

Relevant Definitions For Relevant Definitions For Applying Section 1103(g)Applying Section 1103(g)

"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.

 "Person." A business, governmental body, individual, corporation,

union, association, firm, partnership, committee, club or other organization or group of persons.

 "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.

65 Pa.C.S. § 1102. 

The State Ethics Commission has held that the term “person” includes the former public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007.

The State Ethics Commission has noted that an individual may simultaneously be a former public employee as to a former government employer, and a public employee as to the current government employer. Moore, Opinion 05-008.

Revolving-Door Restrictions for Revolving-Door Restrictions for Former Executive-Level State Former Executive-Level State EmployeesEmployees Executive-level State employees include: “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.” 65 Pa.C.S. § 1102.

Depending upon their former positions, former “executive-level State employees” may be subject to the restrictions of both Section 1103(g) and Section 1103(i) of the Ethics Act.

Section 1103(g) applies for one year while Section 1103(i) applies for two years following termination.

For 2 years following termination of Commonwealth employment, Section 1103(i) of the Ethics Act prohibits the former executive-level State employee from being employed by, receiving compensation from, assisting or acting in a representative capacity for a business or corporation that he actively participated in recruiting or inducing to: (1) come to Pennsylvania; (2) open a new plant, facility or branch in Pennsylvania; or (3) expand an existent plant or facility in Pennsylvania, through an actual or promised grant or loan of money from the Commonwealth to the business or corporation. 65 Pa.C.S. § 1103(i).

Procedures:Procedures:

Advices and Opinions

Investigations

Civil Penalty Proceedings

Advices and OpinionsAdvices and Opinions

The State Ethics Commission provides advice and guidance regarding the duties of those who are subject to the Ethics Act.

Such advice and guidance is in the form of Advices of Counsel and Opinions of the Commission.

Requirements for Advisory Requirements for Advisory RequestsRequests The Requester must have “standing” to submit

the request. By law, the only persons or entities who have the authority or “standing” to request an advisory are: (1) the person whose conduct is in question or his authorized representative; (2) the appointing authority of the person whose conduct is in question, through majority action; and (3) the present employer of the person whose conduct is in question.

The request must pertain to prospective conduct.

The request must be in writing and must include:(1) Name, address, and phone number of the person who is the subject of the request and, if different, the requester.(2) Name of the governmental body with which the subject serves and the name or title of the subject’s public position.(3) If the requester is the appointing authority, employer or representative of the subject, the nature of such relationship.(4) The nature and duties of the subject’s office or job. Include job description, job classification specifications, organizational chart, and if applicable, organization bylaws.(5) All material facts pertaining to the request.

The requester is notified whether an Advice of Counsel or Opinion of the Commission will be issued.

The requester may request deletions/changes to protect the identity of the person(s) involved.

Advices are issued within 21 working days of the Commission’s receipt of the request, unless the time is extended for good cause.

Requests that are to be issued as Opinions of the Commission are placed on the next available Commission meeting agenda, and the Opinions are issued following decision by the Commission.

Legal Defenses Afforded By Legal Defenses Afforded By Advices and OpinionsAdvices and Opinions “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.” 65 Pa.C.S. § 1107(10).

“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.” 65 Pa.C.S. § 1107(11).

InvestigationsInvestigations

The State Ethics Commission has the statutory authority to investigate alleged violations of the Ethics Act.

Investigations are initiated as the result of the filing of a sworn complaint or through an “own motion” procedure.

Procedure: Procedure:

The Commission will initially acknowledge receipt of a complaint.

If the matter is not within the Commission’s jurisdiction or if the complaint lacks sufficient information, it will not be processed and the complainant will be so notified.

Upon receipt of a sufficient sworn complaint that is within the Commission’s jurisdiction, the Investigative Division initiates a preliminary inquiry. A preliminary inquiry is considered initiated at the time that it is officially docketed. A preliminary inquiry must be completed within 60 days. When the preliminary inquiry is completed, the matter is either terminated or opened as a full investigation.

If, after a preliminary inquiry, the matter is terminated, both the complainant and subject will be notified. If the Commission determines that a complaint is frivolous, the Commission shall so state. 65 Pa.C.S. §1108(b).

By statute, no investigation may be commenced until the subject has been notified and provided a general statement of the alleged violation(s). Service of such notice is complete upon mailing by certified or registered mail. 65 Pa.C.S. § 1108(c).

By regulation, an investigation is considered commenced when the Respondent is so notified of the allegations. 51 Pa. Code § § 21.3(c), 21.5(b).

The complainant will be notified within 72 hours of the commencement of a full investigation, and both the complainant and subject of the investigation will be notified every 90 days thereafter of the status of the matter until the investigation is terminated. 65 Pa.C.S. § 1108(c).

Upon the completion of a full investigation, the subject will be issued a findings report containing the pertinent findings of fact. The findings report must be issued no later than 360 days after the initiation of the full investigation. The subject of the investigation must respond to the findings report within 30 days after the issuance thereof, unless an extension is granted. 65 Pa.C.S. § § 1108(c), (e).

Confidentiality:Confidentiality:

As a general rule:As a general rule:

No person may disclose or acknowledge to any other person any information relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration that is before the Commission. 65 Pa.C.S. § 1108(k).

Exceptions To The General Exceptions To The General Rule Are Provided At:Rule Are Provided At:

Section 1108(k) of the Ethics Act, 65 Pa.C.S. § 1108(k); and

Section 21.6 of the Commission Regulations, 51 Pa. Code § 21.6.

The Exceptions Permit The Exceptions Permit Disclosure Of Such Disclosure Of Such Confidential Matters If They Confidential Matters If They Pertain To:Pertain To:Final orders of the Commission as

provided in 65 Pa.C.S. § 1108(h);Hearings conducted in public pursuant to

65 Pa.C.S. § 1108(g);The purpose of seeking advice of legal

counsel;

Filing an appeal from a Commission order; Communicating with the Commission or its staff

in the course of a preliminary inquiry, investigation, hearing or petition for reconsideration by the Commission;

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;

Testifying under oath before a governmental body or a similar body of the United States of America;

Information, records or proceedings relating to a complaint, preliminary inquiry, investigation, hearing or petition for reconsideration which the person is the subject of;

The publication or broadcast of information legally obtained by the news media regarding a confidential Commission proceeding; or

The divulgence by individuals who are interviewees or witnesses as to confidential Commission proceedings regarding information that was already in their possession or the disclosure of their own statements.

Complaint Protections:Complaint Protections:

All Commission information, proceedings and records relating to an investigation are confidential until a final determination is made by the Commission. The final order is a public record. All other file material remains confidential. 65 Pa.C.S. §§ 1108(a), (c), (g), (h), (k). The identity of a complainant may be released by the Commission if it is determined that there has been a wrongful use of the Act. 65 Pa.C.S. § 1110(c).

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. 65 Pa.C.S. § § 1108(j).

Civil Penalty ProcessCivil Penalty Process

The civil penalty process is available as to delinquent or deficient Statements of Financial Interests.

The process includes prior written Notice with a grace period to comply.

If compliance is achieved, no formal proceedings are instituted.

If compliance is not achieved, formal civil penalty proceedings are initiated.

Civil penalties may be imposed in addition to other penalties available under the Ethics Act.See, 65 Pa.C.S. § 1109; 51 Pa. Code § 19.3.

Wrongful Use of Act:Wrongful Use of Act:

A complainant may be subject to civil liability for a wrongful use of act if: The complaint was frivolous (filed in a grossly

negligent manner without a basis in law or fact) or without probable cause and made primarily for a purpose other than that of reporting a violation of the Ethics Act; or

He publicly disclosed or caused to be disclosed that a complaint against a person had been filed with the Commission.

65 Pa.C.S. § 1110(a).

When Does a Complainant When Does a Complainant Have Probable Cause?Have Probable Cause?

A complainant has probable cause for signing/filing a complaint under the Ethics Act when he reasonably believes in the existence of the facts upon which the claim is based and either:(1) reasonably believes that the complaint may be valid under those facts; 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.65 Pa.C.S. § 1110(b).

Restitution Plus Interest and Restitution Plus Interest and Treble PenaltiesTreble Penalties Any person who obtains a financial gain in

violation of the Ethics Act may be required to make restitution plus interest to the appropriate governmental body. 65 Pa.C.S. § 1107(13).

Any person who obtains financial gain from violating the Ethics Act can be ordered to pay three times the financial gain to the State Treasury or the treasury of the appropriate political subdivision. 65 Pa.C.S. § 1109(c).

Penalties:Penalties:

A violation of Section 1103(a), (b), or (c) is a felony and can result in a fine of up to $10,000 and/or imprisonment for not more than 5 (five) years. 65 Pa.C.S. § 1109(a).

A violation of Section 1103(d) through (j), Section 1104 or Section 1105(a) is a misdemeanor and can result in a fine of up to $1,000 and/or imprisonment for not more than one year. 65 Pa.C.S. § 1109(b).

Any person who violates the confidentiality of a Commission investigative proceeding commits a misdemeanor and shall, upon conviction, be sentenced to pay a fine of up to $1,000 and/or to imprisonment for not more than one year. 65 Pa.C.S. § 1109(e).

Any person who engages in retaliatory activity proscribed by Section 1108(j) of the Ethics Act commits a misdemeanor and, in addition to any other penalty provided by law, shall, upon conviction, be sentenced to pay a fine of up to $1,000 and/or to imprisonment for not more than one year. 65 Pa.C.S. § 1109(e).

Any person who willfully affirms or swears falsely in regard to any material matter before a Commission investigative proceeding is guilty of a felony and shall upon conviction be fined up to $5,000 and/or imprisoned for not more than 5 years. 65 Pa.C.S. § 1109(e).

Failure to timely file a Statement of Financial Interests or the filing of a deficient Statement of Financial Interests may result in a civil penalty of up to $25.00 per day up to $250. 65 Pa.C.S. § 1109(f).

Questions and Answers:Questions and Answers:

Where to Get More Information:Where to Get More Information:

Visit the Commission’s website at: www.ethics.state.pa.us

Contact the Commission at:1-800-932-0936 or (717) 783-1610

Write to the Commission at:309 Finance Building, PO Box 11470Harrisburg, PA 17108-1470

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