S0261B0631A09177 MSP:JMT 09/18/18 #90 A09177
AMENDMENTS TO SENATE BILL NO. 261
Sponsor: REPRESENTATIVE SCHEMEL
Printer's No. 631
Amend Bill, page 1, lines 1 through 8, by striking out all of
said lines and inserting
Amending Title 44 (Law and Justice) of the Pennsylvania
Consolidated Statutes, establishing the Truth and Restoration
Commission and the Truth and Restoration Fund and providing
for duties, participation, immunity and barred claims.
Amend Bill, page 1, lines 11 through 20; pages 2 through 8,
lines 1 through 30; by striking out all of said lines on said
pages and inserting
Section 1. Title 44 of the Pennsylvania Consolidated
Statutes is amended by adding a part to read:
PART V
JUSTICE
Chapter
101. Truth and Restoration
CHAPTER 101
TRUTH AND RESTORATION
Subchapter
A. Preliminary Provisions
B. Administration
C. Program
D. Miscellaneous Provisions
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
10101. Scope of chapter.
10102. Definitions.
§ 10101. Scope of chapter.
This chapter relates to truth and restoration.
§ 10102. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Barred claim." A civil action arising from child sexual
abuse which is statutorily barred prior to the effective date of
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this section.
"Child sexual abuse." The term shall have the same meaning
as "sexual abuse or exploitation" in 23 Pa.C.S. § 6303 (relating
to definitions).
"Commission." The Truth and Restoration Commission
established under section 10111(a) (relating to Truth and
Restoration Commission).
"Fund." The Truth and Restoration Fund established under
section 10115(a) (relating to Truth and Restoration Fund).
"Institution." As follows:
(1) Any of the following:
(i) A corporation, partnership, limited liability
company, business trust or other association.
(ii) A government entity.
(iii) An estate, trust or foundation.
(2) The term does not include a natural person.
"Participating institution." An institution which is
identified by the commission under section 10121(a)(2) (relating
to participating institutions).
"Victim." An individual:
(1) with a credible accusation of child sexual abuse;
(2) whose abusers were concealed by a participating
institution; and
(3) who may not bring a barred claim.
SUBCHAPTER B
ADMINISTRATION
Sec.
10111. Truth and Restoration Commission.
10112. Operation.
10113. Functions.
10114. Administrative Agency Law.
10115. Truth and Restoration Fund.
§ 10111. Truth and Restoration Commission.
(a) Establishment.--The Truth and Restoration Commission is
established as an independent commission.
(b) Composition.--The commission shall consist of the
following members:
(1) Three members appointed by the Governor.
(2) Two members appointed by the Senate.
(3) Two members appointed by the House of
Representatives.
(c) Terms.--A commissioner shall serve a five-year term and
may serve for an additional consecutive five-year term at the
discretion of the appointing authority.
(d) Professions.--Membership of the commission shall include
at least one individual from each of the following professions:
(1) A licensed attorney.
(2) A certified public accountant.
(3) A licensed psychologist.
(e) Geographic diversity.--Each appointing authority may
consider the geographic diversity of the Commonwealth when
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making appointments so as to compose a commission representative
of rural and urban areas as well as various regions of this
Commonwealth.
(f) Compensation.--A commissioner shall be uncompensated but
shall receive reimbursement for actual expenses and mileage.
(g) Vacancy.--If a vacancy on the commission occurs at the
end of a member's term, a member's resignation or the death of a
member, the appointing authority which appointed the departing
member shall appoint a new member to fill the vacancy.
§ 10112. Operation.
(a) Meetings.--The commission shall be subject to 65 Pa.C.S.
Ch. 7 (relating to open meetings), except that 65 Pa.C.S. §
707(b) and (c) (relating to exceptions to open meetings) shall
not apply. The commission may hold an executive session under 65
Pa.C.S. § 708(a)(5) (relating to executive sessions) for
sensitive material.
(b) Quorum.--A quorum shall consist of four members.
(c) Staff.--The com mission shall hire or contract for a
staff of investigators, attorneys, support staff and an
executive director as reasonably necessary to conduct the
efficient work of the commission.
(d) Chairperson.--The members shall annually select a
chairperson from among the members of the commission, who shall
chair meetings of the commission, establish the commission's
meeting agenda and ensure the efficient work of the commission.
§ 10113. Functions.
(a) Primary objective.--The primary objective of the
commission shall be to reveal the:
(1) extent of child sexual abuse involving barred claims
which has occurred within each participating institution and
the degree to which the child sexual abuse involving barred
claims has been concealed within the participating
institution; and
(2) participating institution's compliance with current
laws relating to the protection of minors within the
participating institution.
(b) Secondary objective.--The secondary objective of the
commissi on shall be to establish a procedure by which a victim
shall be equitably compensated by the fund.
(c) Report.--
(1) The commission shall annually release a public
report listing each participating institution and the names
of iden tified alleged of fenders, including child sexual
offenders and individuals who intentionally enabled the
concealment or reassignment of a child sexual offender, and
the specific offenses committed. Reports of credible abuse
may be released to the public if the victim authorizes the
release.
(2) The commission shall verify and acknowledge changes
in the operations within a participating institution which
are designed to comply with current laws and ensure the
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safety of children. The commission may include its own
commentary as to the effectiveness of the changes.
(3) On or before January 31 of each year, the commission
shall report to the General Assembly on the commission's work
from the previous year and the commission's anticipated work
in the following year. The commission shall answer questions
from the General Assembly concerning the work of the
commission as necessary for the General Assembly to evaluate
the budget needs of the commission.
(d) Notice.--The commission shall transmit notice of
completion of the transfer under section 10115(g) (relating to
Truth and Restoration Fund) to the Legislative Reference Bureau
for publication in the Pennsylvania Bulletin.
(e) Implementation and administration.--The commission shall
i mplement and administer Subchapter C (relating to program).
This subsection includes rulemaking authority.
(f) Requirements prohibited.--The commission may not:
(1) require a participating institution to do anything
except as provided under this chapter, such as demanding a
change in a participating institution's structure or beliefs;
or
(2) issue a recommendation to do anything prohibited
under paragraph (1).
(g) Contribution.--The commission shall create formulas
under section 10115(d) and (e) to determine the contribution
from each participating institution to the fund and the amount
of compensation to victims from the fund.
§ 10114. Administrative Agency Law.
The commission shall be subject to 2 Pa.C.S. Chs. 5 Subch. A
(relating to practice and procedure of Commonwealth agencies)
and 7 Subch. A (relating to judicial review of Commonwealth
agency action).
§ 10115. Truth and Restoration Fund.
(a) Establishment.--The Truth and Restoration Fund is
established in the State Treasury.
(b) Sources.--Sources of the fund shall be:
(1) F or the first year, equal contributions transferred
from the budgets of the General Assembly, judiciary and
Attorney General. Amounts transferred under this paragraph
are for the purposes of administration only and may not be
used to compensate victims under section 10123 (relating to
compensation of victims).
(2) Beginning in the second year and e ach year
thereafter, appropriations, not to exceed 10% of the amount
of the money in the fund, until the fund has adequate money
to fund the work of the commission. Amounts appropriated
under this paragraph are for the purposes of administration
only and may not be used to compensate victims under section
10123.
(3) Contributions under this subchapter.
(4) Return on money in the fund.
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(c) Purpos e.--Money in the fund shall be used for:
(1) compensating victims; and
(2) administration as provided under subsection (b)(1)
and (2).
(d) Formula for contribution from each participating
institution.--
(1) The commission shall create a formula which shall be
used to determine the contribution required from each
participating institution.
(2) The formula shall do all of the following:
(i) Be uniformly applied.
(ii) Take into consideration the extent of the abuse
which the participating institution concealed, the
duration of the concealment and the nature of the
instances of abuse.
(iii) Take into consideration the financial
condition of the participating institution.
(3) The formula should do all of the following:
(i) Account for the degree to which a participating
institution is related to the abuse and concealment, such
as the case of a merged entity if the surviving entity
represents more than just the entity where the abuse
occurred.
(ii) Be designed primarily as a means of
compensation for victims, except that the formula shall
also serve a lesser punitive function. Notwithstanding
the punitive function, the formula should not be designed
so as to force a participating institution into
bankruptcy or to unduly impede a participating
institution's religious, educational or charitable
endeavors.
(e) Formula for amount of compensation to victims.--
(1) The commission shall create a formula which shall be
used to determine the amount of compensation paid to each
victim.
(2) The formula shall consider the nature and extent of
the abuse suffered, as confirmed by the commission, any prior
award or settlement which the victim may have already
received on the same claim, the total number of victims
claiming compensation and the balance of the available money
within the fund.
(3) When calculating the compensation payments to
victims, the commission should anticipate the near depletion
of the fund.
(f) Expenses.--Expenses for the operation of the commission
shall be paid from the fund.
(g) Balance.--Any balance remaining in the fund after all
compensation payments are made and expenses of the commission
are finalized shall be transferred to the Department of Human
Services to fund child protective services under 23 Pa.C.S. Ch.
63 (relating to child protective services).
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(h) Waste.--The commission should prevent the waste of the
fund by mismanagement and excessive expenses.
SUBCHAPTER C
PROGRAM
Sec.
10121. Participating institutions.
10122. Investigations.
10123. Compensation of victims.
10124. Barred claims.
10125. Immunity.
§ 10121. Participating institutions.
(a) Participation.--
(1) An institution which reasonably believes that the
institution has employed, managed, directed, certified or
aided an individual which may have committed an act of child
sexual abuse may participate in the work of the commission.
(2) To become a participating institution, the governing
body of the institution must send a written notice to the
commission so that the commission receives the notice before
January 1, 2020 . Upon receipt of the written notice, the
commission shall submit a notice identifying the institution
as a participating institution to the Legislative Reference
Bureau for publication in the Pennsylvania Bulletin.
(b) Continuation.--
(1) To continue to be considered a participating
institution, a participating institution must comply with
each reasonable request, subpoena and other demand for
information or other participation as reasonably required by
the commission.
(2) If a participating institution does not comply under
paragraph (1), the commission shall give the participating
institution written notice detailing the noncompliance.
(3) If noncompliance is not remedied within three months
of receipt of the notice under paragraph (2), the commission
may eliminate the institution as a participating institution.
The commission shall submit a notice eliminating the
institution as a participating institution to the Legislative
Reference Bureau for publication in the Pennsylvania
Bulletin. The commission may not engage in punitive or
disciplinary conduct other than the elimination of the
institution as a participating institution or, for
participating institutions, the assessment of a contribution
to the fund.
(c) Appeal.--A participating institution may appeal each
decision or demand of the commission to Commonwealth Court,
which shall be the final arbiter of the matter.
(d) Withdrawal.--After December 31, 2019, a participating
institution may not withdraw from participation without the
written approval of the commission. If a participating
institution has withdrawn, the i nstitution may participate once
again at any time prior to January 1, 2020.
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(e) Contributions.--Contributions to the fund shall be
mandatory for participation. The commission may enforce payment
as a judgment lien against the participating institution. The
commission shall allow a participating institution to make
contributions over a five-year period, with interest at the
legal rate. The commission may adjust a contribution amount
based on reasonable factors, such as a significant and
unanticipated decline in the financial resources of a
participating institution.
§ 10122. Investigations.
(a) Degree of culpability.--The commission shall evaluate
the degree of culpability for each participating institution for
concealing child sexual abuse. The commission shall consider the
extent of the abuse, the number and nature of the positions of
individuals within the participating institution who knew of the
abuse and the length of time over which the abuse and
concealment occurred.
(b) Testimony.--
(1) The commission shall, under oath, hear the testimony
of victims, representatives and staff from a participating
institution, accused individuals and other individuals who
may have evidence pertinent to the work of the commission.
(2) The commission may compel testimony and other
evidence through subpoena and may administer an oath to an
individual who offers the evidence. Commission staff may
follow leads and solicit unsworn testimony as necessary to
aid the commission in the commission's investigation and
analysis.
(c) Jurisdiction .--The commission may petition Commonwealth
Court to enforce a subpoena or oath under this chapter.
(d) Reporting of crime.--The commission or commission staff
shall report to law enforcement any information obtained through
the commission's work which may be evidence of a reportable
crime.
(e) Authority.-- The commission may not obtain a search
warrant. Commission staff may inspect files and other evidence
in the possession of a participating institution with the
cooperation of the participating institution.
(f) Favoritism.--The commission shall critically evaluate
accusations and defenses so that no party is favored.
§ 10123. Compensation of victims.
The following shall apply:
(1) The commission shall receive requests for
compensation from vict ims and shall make reasonable efforts
to contact possible vic tims who may be identified through the
work of the commission.
(2) To qualify for compensation, a victim must request
compensation through the commission and be alive at the time
that compensation payments are paid from the fund.
(3) A request for compensation must be made to the
commission no later than December 31, 2023.
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(4) Payments for compensation shall be made after the
expiration of the five-year contribution period under section
10121(e) (relating to participating institutions).
(5) To receive a payment, a victim must sign a release
of all claims arising out of the incident for which the
victim receives compensation.
§ 10124. Barred claims.
(a) Change.--A participating institution shall not be
subject to a barred claim as a result of a statutory change
relating to child sexual abuse, including a civil time period
which may be created by a constitutional amendment or otherwise.
(b) Tolling.--A tolling of a statute of limitations or a
statute of repose based on a legal theory shall not apply to a
barred claim against a participating institution.
(c) Applicability.--A statute of limitations or a statute of
repose for a barred claim in effect on the effective date of
this section shall continue to apply to participating
institutions.
§ 10125. Immunity.
(a) Sovereign immunity.--An institution as defined in
paragraph (1)(ii) of the definition of "institution" in section
10102 (relating to definitions) is entitled to sovereign
immunity under 42 Pa.C.S. Ch. 85 Subchs. B (relating to actions
against Commonwealth parties) and C (relating to actions against
local parties).
(b) Participating institutions.--Eac h individual and
participating institution providing evide nce, truthful to the
best knowledge of the testifier, to the commission shall be
immune from the civil claim of a party who may claim to be
harmed by the testimony.
(c) Commission.--The commission, members of the commission
and commission staff shall be immune from the civil claim of a
party who may claim to be harmed if the commission, members of
the commission and commission staff are acting in good faith and
within the mandate of the commission.
SUBCHAPTER D
MISCELLANEOUS PROVISIONS
Sec.
10131. Expiration.
§ 10131. Expiration.
This chapter shall expire on the date of the publication of
the notice under section 10113(d) (relating to functions).
Section 2. This act shall take effect immediately.
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